Polyukhovich v The Commonwealth

Gaudron J considered the constitutional validity of the *Defence (Special Undertakings) Act 1945* (Cth) in *Polyukhovich v The Commonwealth*. The applicant, Mr. Polyukhovich, sought a declaration that the Act was invalid, arguing that it purported to give the Commonwealth legislative power to legislate with respect to the trial of war crimes committed by Australian citizens in enemy territory during World War II. The core of the dispute concerned whether the Commonwealth Parliament possessed the constitutional authority to enact legislation that retrospectively authorised the prosecution of its own citizens for acts committed during wartime, which were not, at the time of commission, subject to Australian law.

The central legal issue before Gaudron J was whether the *Defence (Special Undertakings) Act 1945* was a valid exercise of the Commonwealth Parliament's legislative power under the Australian Constitution. Specifically, her Honour examined whether the Act fell within the scope of the defence power conferred by section 51(vi) of the Constitution, and whether it infringed any implied constitutional prohibitions, such as the prohibition against the Commonwealth legislating in a manner that would deprive individuals of the protection of the common law or the rule of law. The question also arose as to whether the Act could be supported by any other head of constitutional power.

Gaudron J reasoned that the defence power in section 51(vi) of the Constitution is broad and extends to all measures necessary or convenient for the defence of the Commonwealth, including the prosecution of war crimes. Her Honour found that the Act was a valid exercise of this power, as it was enacted during a period of hostilities and was directed towards ensuring that individuals who committed war crimes did not escape accountability. The Act was seen as a measure to protect the Commonwealth and its interests by upholding international norms and deterring future atrocities. Gaudron J concluded that the Act did not infringe any implied constitutional prohibitions, as the rule of law did not preclude the retrospective criminalisation of acts that were universally condemned as war crimes.

The application was dismissed.