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In relation to
Polyukhovich's contention that the Act purported to usurp the judicial power of the Chapter III courts, the court held by a majority of 4 to 2 (Brennan J not deciding) that the statute did not invalidly usurp the judicial power of the Commonwealth. While the majority all accepted that
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By a majority of 6 to 1 (Brennan J dissenting) the court held that the Act was a valid exercise of the external affairs power. The six majority judges all wrote separate opinions. Mason CJ, Deane, Dawson, Gaudron & McHugh JJ were all of the opinion that as the subject matter of the legislation
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Polyukhovich's lawyers argued that the law was beyond the scope of
Commonwealth legislative power in section 51(vi) (defence) and section 51(xxix) (external affairs) of the Constitution. He further argued that the attempt to make past criminal conduct an offence was an invalid attempt to usurp the
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Toohey J, however, considered that it was not sufficient that the Act dealt with matters outside
Australia. In his opinion, the subject matter had to 'touch and concern' Australia, In the event, he found that there was a sufficient connection between the subject matter of the Act and Australia to
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In dissent, Brennan J suggested that there must be a nexus between
Australia and the 'external affair' involved. He held that, because the subject of war crimes in World War II was not an external affair at the time, i.e., 1939 to 1945, the subsequent acquisition of citizenship or residence in
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was external to
Australia then the law was a valid one under the external affairs power. Mason CJ also said that if the Parliament considered that Australia had an interest or concern it was not for the court to examine whether there was a relevant interest or concern.
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judicial power of the
Commonwealth, that power being vested by the Constitution in Chapter III courts, by enacting what was effectively a
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had been charged under the Act with war crimes, alleged to have been committed between
September 1942 and May 1943 in
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provided that any person who committed a war crime between 1 September 1939 and 8 May 1945 was guilty of an
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162:(per Mason CJ, Dawson, Toohey & McHugh JJ; Deane & Gaudron JJ dissenting; Brennan J not deciding)
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Australia by an individual was not enough to transform the subject matter into an external affair.
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155:(per Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ; Brennan J dissenting)
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294:(6 ed.). Leichhardt, NSW: Federation Press. pp. 607–614, 898–900.
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law of the kind under consideration was not a usurpation of judicial power.
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The statute did not invalidly usurp the judicial power of the
Commonwealth.
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did not automatically make the law a bill of attainder. In addition, an
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Blackshield and
Williams Australian Constitutional Law and Theory
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Blackshield, Anthony; Williams, George; Brennan, Sean (2014).
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External affairs power in the
Australian Constitution cases
153:(Cth) was valid as a law with respect to external affairs.
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Polyukhovich v The Commonwealth of Australia and Another
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regarding the scope of the external affairs power in
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363:Rights in the Australian Constitution cases
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223:while it was under German occupation in
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16:Judgement of the High Court of Australia
253:allow the law under section 51(xxix).
328:List of High Court of Australia cases
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190:section 51(xxix) of the Constitution
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178:501, commonly referred to as the
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171:Polyukhovich v The Commonwealth
217:Ivan Timofeyevich Polyukhovich
192:and the judicial power of the
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358:Australian constitutional law
343:High Court of Australia cases
24:Polyukhovich v Commonwealth
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186:High Court of Australia
42:High Court of Australia
373:Ex post facto case law
348:1991 in Australian law
244:External affairs power
316:Text of the decision
268:separation of powers
207:War Crimes Act 1945
181:War Crimes Act Case
174:HCA 32; (1991) 172
151:War Crimes Act 1945
88:– injunction action
213:indictable offence
70:(1991) 172 CLR 501
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233:bill of attainder
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82:Prior action
77:Case history
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337:Categories
284:References
200:Background
72:, HCA 32
66:Citations
322:See also
239:Decision
221:Ukraine
130:Gaudron
114:Brennan
58:Decided
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134:McHugh
132:&
126:Toohey
122:Dawson
209:(Cth)
158:(4:2)
147:(6:1)
118:Deane
110:Mason
38:Court
296:ISBN
204:The
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96:none
176:CLR
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136:JJ
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