Polyukhovich v The Commonwealth of Australia

[1990] HCATrans 273

-h, AUSTRALIA,(..(!--

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IN THEHIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1990

B e t w e e n -

IVAN TIMOFEYEVICH POLYUKHOVICH

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

and ROBERT WILLIAM REID

Defendants

Question reserved for

consideration of the Full Court
pursuant to section 18

Judiciary Act 1903

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

Polyukhovich(3) 277 9/11/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 NOVEMBER 1990, AT 9.54 AM

(Continued from 5/9/90)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Charles.

MR CHARLES:  Your Honours, I cannot imagine a course that is

more calculated to inflame the passions of the

Court than to tell the Court on 5 September that we

have completed argument and then invite the Court

to receive another nine pages of summary of

argument. May I do that now?

MASON CJ:	We have the benefit of this, Mr Charles.
MR CHARLES:	Your Honours, the submissions are intended to

be self-contained and self-explanatory. Having

said that may I shortly explain them.	So far as
the - - -

MASON CJ:  When I said we had the benefit of this, that is,

the written submissions, we received yesterday

afternoon, through the Registry, written

submissions which I think amounted to nine pages.

Is there any difference between the documents?

MR CHARLES: It is the same document, Your Honour, simply a

first strike.

MASON CJ: Thank you.

MR CHARLES:  Your Honours, the first four and a half pages

of the document the Court now has relate to

section 13(2) of the War Crimes Amendment Act.	The
matter was covered in argument on Wednesday,

5 September, at pages 226 to 228 of the transcript

but they were not covered in detail in our written

submissions and we have expanded the argument which

appears at those pages in the transcript in these

4½ pages of the further submissions.

Your Honours, the only point that we would

seek to add in relation to what I might call the

first half of these further submissions is the

consequence in relation to t.he constitutionality of

the Act if we have made good the argument in

relation to section 13(2).

I did say in our submissions on 5 September

that we accepted that the matter was one capable of

ready amendment and, therefore, that we did not

spend long in pursuing them. May we add,

Your Honours, however, that our submission would be that if we have made good the argument in relation

to section 13(2), that the consequences of the Act

should be struck down as a whole. In our

submission, section 13(2) could not be regarded as

severable from the remainder of the Act. We would

submit that it is unthinkable that an Act which

creates new offences unique for Australia with a pattern, both of the elements of the offence and

Polyukovich(4) 278 9/11/90

defences, could survive the destruction of the

defences without the whole thing having to be sent

away to be recast. Now, Your Honours, that is all

that we desire to say in relation to the first four

and a half pages.

In relation to the second four and a half

pages, pages five to nine, the justification for
providing Your Honours with those pages is that

they are, in part, a response to a question

Your Honour Justice Deane put to me at the end of

Wednesday, pages 275 and 276 of the transcript, on Wednesday afternoon and we had raised in argument,

Your Honours, the question whether there was in the

Constitution, and particularly in Chapter III, an

implied guarantee of a fair trial, both from the

structure and the content of Chapter III and the

question that we put before the Court is, "Can
Parliament pass legislation requiring

Federal Courts to act in a manner which is

inconsistent with basic requirements of justice?"

We would submit that there are certain obvious requirements which the courts attach to a fair trial, obviously an unbiased judge, hearing both

sides, in open court, with both sides having a fair

opportunity to call evidence, and precisely

required by the Constitution, trial by jury for an
indictable offence and in criminal cases, Your

Honours, with the Crown naturally carrying the

burden of proof throughout, save in the case of

insanity, as Your Honour Justice Dawson put to me

at pages 221 to 222 of the transcript.

The matters, Your Honours, that we raise, and

I can take the Court to them very, very quickly, as

trespassing on any such implied guarantee, if it be

found to exist, would firstly involve the question

of retro-activity. We have argued that at length

and I wish to say no more about it, Your Honours.

Secondly, in the Amendment Act the question of

section 17, and if Your Honours recall, in

particular, that section 17(4) may be regarded as

switching the burden of proof in some respects or,

at least, as forcing the accused into the witness

box. We dealt with that matter, Your Honours, at

pages 216 to 222 of the transcript on Wednesday.

The third matter, Your Honours, to which we

draw attention in this regard is section 17(2) and

the conjunctive •·and" between 2 (a) and 2 ( b) which

might be regarded as requiring the accused to raise

evidence of the impossible, that is, in relation to

an allegation of a crime against humanity

establishing that the facts in question were

committed:

Polyukhovich(4) 279 9/11/90

by the laws, customs and usages of war.

We dealt with that, Your Honours, at pages 222 to

223 of the transcript.

The fourth point, Your Honours, the question of delay and the relationship of that to a fairness

at trial in Jago's case, and we had raised in
relation to that, Your Honours, whether
section 13(5) established a code defining the only

circumstances in which a stay may be ordered

because of lapse of time, may we submit very
briefly in relation to section 13(5) and with
particular reference to the existence of subsection

(6) that the mere fact that 50 years have passed

could not, in our submission, in terms of this Act

make the prosecution an abuse. The mere fact that

the person accused is unable to obtain relevant

evidence is insufficient to justify the granting of

a stay under section 13(5). The mere fact that

prejudice would be caused by the passage of time to
the accused would all be insufficient in the face

of section 13(5).

Now, Your Honours, if subsection (6) might be

regarded as preserving a general power to deal with

abuse including for delay, we would submit that

such an interpretation would be inconsistent in

relation to the lapse of time with the clear

statement of the conditions for the stay in

subsection (5) which expressly address the lapse of

time situation.

Our second submission as to that,

Your Honours, would be that the wording of subsection (6) is also, in terms, not merely that nothing in (5) limits the generality of anything

elsewhere, but also that nothing in subsection (4)

limits the generality of anything in

subsection ( 5 ) .

TOOHEY J:	submission. If the defendant establishes the I am not sure, Mr Charles, that I follow the
factors contained in paragraphs (a) and (b) of subsection (5), it will not be enough as distinct
from it may not be enough to warrant a stay.

MR CHARLES: Because, Your Honours, again the conjunctive

"and" appearing at the end of (b) requires also

that the accused establish, on the balance of

probabilities, that the interests of justice

require the making of the order.

TOOHEY J: That is why I drew the distinction between "will"

and "may". It would not be hard, perhaps, to

conceive of a situation in which, if you

Polyukhovich(4) 280 9/11/90

established (a) and (b), the interests of justice

might require the making of the order.

MR CHA,RLES:  Yes. were seeking to make, Your Honour, in relation to The particular point, I think, that we

these sections is that the precise condition in (a)

is not established merely by showing that there was

evidence that has not been obtained. You also have

to go further and show that you would, for other

reasons, have been able to obtain it. Secondly, in

relation to (b), that it is insufficient to show

that the evidence has prejudiced you; you must

establish substantial prejudice and, arguably,

something more.

We would say, Your Honours, that the section

operates to confine the power at common law a court
would possess to stay a prosecution as an abuse.

That is all we seek to put, Your Honours. But, so far as subsection (6) is concerned, it is obvious

enough that - what it says is that nothing in (4)

limits the generality of anything in (5), as well

as other things.

Your Honours, the only other matter, the fifth

point, that would be put in relation to any

Chapter III implication: I did, in passing on the

Act refer to section 18 and attention was directed to the fact that section 18 on alternative verdicts

is a procedural section. May we invite the Court's

attention to section 18(l)(d) which provides for

alternative verdicts of a particular kind. The

effect, as we understand it, of section 18(l)(d) is

that an accused could be found guilty of an

alternative charge that did not exist in

1939 to 1945 but had only been created, say,

in 1989, having regard to the wording of that

section and, of course, there are a variety of

possible offences that have arisen in very recent

times.

Your Honours, there is nothing further that we

wish to say in relation to Chapter III. We hope

that the matters we have contained in pages 5 to 9

provide some response to Your Honour

Justice Deane's question to me.

Two, last, very short matters, Your Honour:

at pages 262 to 263 of the transcript on Wednesday,

I drew the Court's attention to the case of "Le

Louis", (1817) 2 DODS 210 and, again, Your Honour

Justice Deane asked me at page 263 whether the

court there was applying English or International

law. I incorrectly replied that the court was

applying English law. It was, of course, in

Admiralty, applying the law of Nations and that is

Polyukhovich(4) 281 9/11/90

clear at page 1479 of the type which I handed to

the Court on 5 September.

_ One last reference, Your Honours: I made a

very short submission in relation to any possible

limitation that could be derived from the

expression "peace, order and good government". I

note the difficulty that I would have in persuading

this Court that there is any such limitation to be

found from those words but may I add a reference to volume 17 of the Melbourne University Law Review at page 24 which contains a lengthy article on "Peace, Order and Good Government, a Limitation on

Legislative Competence" by Mr Ian D. Killey which

suggests that this Court in Full Bench is wrong in

concluding that there is no such limitation and

which contains copious citation of authority

directed to that end.

MASON CJ:  But you are not asking us to overrule the Union

Steamship Co case?

MR CHARLES:  No, Your Honour, I am just simply drawing that

matter to the Court's attention. Your Honours,

unless there is anything further the Court has to

put to me those are our submissions.

MASON CJ: Thank you, Mr Charles.

MR CHARLES: If the Court pleases.

MASON CJ:	Mr Solicitor for New South Wales.
MR MASON:	Your Honours, I wish to speak to the written outline of submissions that was handed to the Court
on the last occasion and I have a short
supplementary outline which replies to my learned
friend Mr Charles's missive of last Wednesday.
Your Honours, we seek to make two general propositions about the external affairs power
generally before looking at the alternative
approaches to characterization that have been
suggested in this case and by earlier decisions of this Court.

In the first paragraph we have collected a

number of passages where there have been statements

by the Court from as early as Burgess' case and as late as Tasmanian Dam or Richardson, which suggest

the need that there should be some conscious

advertence by Parliament to the relevant aspect of
external affairs before the power given by the

placitum is, as it were, drawn down into the

legislation.

Polyukhovich(4) 282 9/11/90

We do not suggest there must necessarily be a

facial advertence, although it is possible that

that ought to be where the line is drawn. The

importance of the requirement is that without it

there may be no proper capacity for this Court to

exercise its function of judicial review with
respect to legislation which otherwise bears no

stamp at all of concern with matters of external

affairs. Most of the passages, the dicta where

this notion has been referred to, have dealt with a

convention and the statements such as, "being

stamped with the purpose of executing the

convention" or "being faithfully pursuing the

purpose of the convention" should be seen in that

context. We do not again necessarily confine the

relevant principle to conventions, because we

concede that customary international law is a basis

for reliance upon the placitum and if we were wrong

in our argument about mere externality or

international concern, those aspects have to be

taken into account as well.

But whichever categories are within the notion of an external affair there is, in our submission,

a need for any legislation which, as this

legislation is, is internal in its operation, it

creates a crime which is confined to persons within

Australia, that there should be something to

indicate an intention to draw upon the power.

DAWSON J:  What about the preamble?

MR MASON: Well, the preamble in this Act is not of terribly

much assistance with respect to external affairs,
in our submission, in that the concern that is

expressed in paragraph (a) does not advert to international concern. All of the preambular

provisions might as well apply to a law for the

protection of trees, for example.

DAWSON J: Except it expresses concern about external

events.

MR MASON: -Yes, it does and I suppose if mere externality is

itself a basis for invoking the external affairs

power, then one might get a start from that
preambular expression, but the key provision of

section 9 appears to put that matter behind the

legislature and create a crime which concentrates

upon particular events that have occurred.

The preamble also would appear to concentrate

upon the notion of entry into Australia as being

the thing that triggers off and enlivens the power.

Again, in contradiction to the basis upon which the

constitutional validity has been argued by the

Commonwealth.

Polyukhovich(4) 283 9/11/90

The second general submission we make concerns

the interaction of what may be possibly conflicting

treaty obligations. The submission was put by my

learned friend, Mr Rose, at page 55, that the

;:_ Gommonwealth, being an independent nation has the

liberty to repudiate an international obligation.

With that we would not disagree. But, so long as

the Commonwealth is party to a number of

international obligations of a treaty nature and so

long as those international obligations are capable

of being reconciled by a process of construction

then, in our submission, if the Commonwealth wishes

to rely upon this placitum and this placitum alone

it cannot pick and chose between inconsistent

obligations.

The context of this argument is that if there

is a treaty obligation which proscribes retroactive

criminal laws which the Commonwealth is and remains

a party and if the basis of legislation in this

case is something short of an obligation which
arose during the Second World War then it may very
well be possible to reconcile the two international
obligations by saying that there is power in the

Commonwealth to legislate in future but not in such a way as to repudiate the obligation it maintains

under a treaty not to enact retroactive laws.

We would seek to get support from this from

the discussion in Burgess' case which is referred to at the bottom of the page where the Court went
to some length to analyse the extent to which the

Australian legislation was a faithful reflection of the treaty obligation that was invoked in order to

justify it, and because of the significant

disconformity within the framework of a single

treaty, the Australian legislation was held not to

be capable of justification by reference to that

treaty.

If that is a principle within a single treaty,

why can it not be a principle with respect to a

number of treaties to which Australia is party? It

may be, of course, that there are inconsistent

treaty obligations, in which case the Court will

presumably have some function of construing which

obligation is the superior one, perhaps by a rule

of the later is the greater in the event of not being able to discriminate on some other basis.

DAWSON J: This submission is made on the basis that the

external affairs power is limited by the extent of

the international obligation, is it?

MR MASON:  No, it is on the basis that the external affairs

power, so far as it derives from treaty obligations

Polyukhovich(4) 284 9/11/90

is limited by the totality of the treaty

obligations to which Australia is a party.

DAWSON J:  I thought that was a rather old-fashioned view of

~ ihe external affairs power.

MR MASON: With respect, I would not accept that. If the

Commonwealth enters into more and more

treaties - - -

DAWSON J: But it is the treaty that shows the international

concern, but what Australia does about that

international concern is its own affair.	I thought
that was the current view.	I may be wrong.

MR MASON:  With this limitation and qualification, there are

still, it would appear, an obligation to show some

relevant level of proportionality to the treaty or

the international concern.

DAWSON J:	You may be right, yes.
MR MASON:	But if there is - let it be assumed there is a

specific treaty which, let it also be assumed, reflects international concern in a particular

area, no retrospective criminal obligations, by

what basis may Australia repudiate that while

drawing upon a customary international obligation

or, worse still, a customary international

permission in order to legislate while ignoring a

positive treaty international obligation?

BRENNAN J:  The answer to that may be that the legislative

power conferred by section 51 is a power to

implement such treaty obligations or other

obligations under international law as Australia

may choose. In other words, if the obligation

itself is qualified in some way, that may itself be

a qualification on the power but if there be

inconsistent obligations it is a matter for

Australia to choose which of them it chooses to

implement and the legislative power then attaches.

MR MASON: - Your Honour, that certainly is a possible

resolution of the difficulty. It is not the one we would accept. It is not a necessary one, and there is no reason, in our submission, why a - since we

are concerned only with the legislative power there

is no impediment upon Australia's capacity to

function as an international person in relation to

entering into treaties. But since we are concerned

with the legislative power that flows from it, we

would question whether the Parliament has the

capacity to rely upon a permission granted by one

treaty when there is a prohibition imposed by

another.

Polyukhovich(4) 285 9/11/90

Your Honours, at page 260 of the transcript,

Mr Justice Deane asked a question relevant to this

when he said at the top of the page:

Does that mean that the Parliament could not

repudiate its international obligations or

breach them in a case where its assessment of

the situation was that national interest

demanded it do so?

An answer which we would advance to that question

is that perhaps Parliament has the power, as it

were, to revoke legislation. If legislation was enacted pursuant to an obligation which Australia wishes to repudiate, the legislation may be

revoked, the will may be revoked, but there would

not be the power to enter into a fresh one based upon the original obligation, or in the teeth of the original obligation.

Your Honours, I do not wish to develop

anything about our submissions on reliance upon convention which is subject to what I have just

said about the retrospective criminal legislation

if, as a matter of construction, that is precluded

by treaty.

In relation to customary international law

again, Your Honours, New South Wales does not wish

to advance any submissions contrary to the
proposition that customary international law may be

a basis, whether that customary obligation is one

of obligation or specific empowerment.

May I simply give Your Honours the current

citation for Thiel's case which is mentioned about

point 4 on page 3, (1990) 64 ALJR 516, and the

passages are at 519 and 523.

Your Honours, passing to paragraph 7 of the

outline we make the submission that even if

customary international law is the basis for the

legislation there still is the requirement of

proportionality to be satisfied in relation to such

a·matter.

As to the actual origin of that requirement it

would appear to flow, in our submission, from the

very notion of judicial review and from the need to

be able to characterize the law ultimately as being

referable in some way to international affairs. In

paragraph 8 we would suggest an alternative

approach which looks less at the public national

obligation or permission but more at the rights of

the individuals who are the beneficiaries of the

international obligations.

Polyukhovich(4) 286 9/11/90

There is some discussion, which I do not wish

to read - we have given Your Honours the passages

at top of page 5, to the notion of international

. protection for human rights and fundamental

.__ freedoms. If one starts from this approach, which

is much more individual oriented, nations may have

obligations or, at least, specific permission to

take appropriate steps in this regard. However,

the right must be shown to exist in international

law; it is not, we submit, sufficient that it is

simply the topic of discussion.

Your Honours, then we address the question of

mere externality and our submission is that this is

not a basis for, as it were, ditching the accepted

norms of characterization with respect to this

placiturn of power. It cannot be used, particular

in the way it is sought to be used here, as an

alternative test which frees the Commonwealth

Parliament of any requirement to satisfy the accepted norms of characterization.

Your Honours, we would start by submitting

that, in any event, this Act cannot be

characterized as a law upon a matter geographically

external to Australia. So, even if this were an

alternative test it is not of any help in this

legislation. The key provision is section 9 which

is general in its terms and reference has already

been made by my learned friend, Mr Charles, to the

second reading speech in which the Attorney-General

stressed that it extended to crimes wherever they

took place, within Australia or elsewhere. There

is, of course, the further limitation in

paragraph 11 that only Australian citizens or

residents are to be prosecuted.

On this basis, we submit the Act's validity is to be determined according to its legal and not its practical operation and, therefore, the fact that

the likely focus of prosecution attention will be

used to characterize the Act in a way other than it persons who committed crimes overseas cannot be	is· and then to use that characterization to save it
from being struck down constitutionally.

BRENNAN J: That depends on what operation or how one

construes section 9 in conjunction with the other

sections, does it not? There are two

possibilities, are there not? One is that one says

that a person who has done certain things shall be

exposed to the following penalties. The other is

to say that the Australian courts and legal system

shall take the law to have been, at the relevant

time - 1939 to 1945 - as declared in sections 6 and

7 •

Polyukhovich(4) 287 9/11/90

MR MASON:	Yes.
BRENNAN J:	The difference is between, I suppose, the true

ex post facto law and one having the kind of

retrospective operation. Now, if one takes the

second of those, that is, the law shall be deemed

to have been that it was a crime as thereby defined
to have done those things overseas between 1939 and

1945, however fictitious the deeming may be, the

externality is well and truly established, is it

not?

MR MASON:	Except that it does not confine itself to saying, "to have done those things overseas". It says, to
have done those things in relation to the European war but the conspiracy charges, for example, would embrace making gas in Australia or inciting, from
Australia, persons to commit these abominable acts in Europe.

So the legal operation of the Act is one which

- even if one construed section 9 in the latter way

that Your Honour was putting to me, the legal

operation of the Act is not confined to acts of

mere externality and I suppose it could still be

said, "Well, let us s~y that with respect to those

parts that are merely external" and that could be a
basis upon which the argument could be advanced

against us that on this basis it was valid but that

would be, in our submission, to fail to
characterize the Act firstly and fail to ask the

relevant question which must always be whether it

can be characterized by reference to being a law

with respect to external affairs and the danger of

creating these subrules is when one's gaze is taken

off this central question.

Your Honour did say at page 154 of the

transcripts - and possibly a similar sort of

question to the one you have just put to me -

Your Honour Mr Justice Brennan raised two
alternative characterizations of this law.	One
that imposed:

a liability by reference to what is done

elsewhere of a criminal kind -

and secondly -

a law which imposes a liability by reference

to something that has happened in a person's

past.

Now, we would say that one should characterize

section 9 as a law which imposes a liability by

reference to something that has happened whether

here or abroad in a person's past and on that basis

Polyukhovich(4) 288 9/11/90

one cannot start by saying, "Well, this is a law

that is merely external and therefore within power

for that reason".

Let it be assumed that one could treat this

Act or save part of it by saying it is merely

external. We then proceed in paragraph 10 to

dispute that as being a relevant substitute test

and a misleading substitute test for validity under

this placitum.

Your Honours, the first proposition we make at

page 6 is that what the proposition, reduced to its

logical conclusion, seems to mean is that if you

pass a universal law, then, to the extent that it
operates extraterritorially, it may be

characterized as the law with respect to external

affairs, whatever its subject-matter, whatever its

purpose. The argument that mere externality is

sufficient also falsely locates, in this particular

placitum, a power to legislate extraterritorially,

which is implicit in the whole of section 51 and
would make covering Clause 5 of the Constitution

meaningless. Covering Clause 5 providing that:

This Act, and all laws made by the Parliament

of Commonwealth under the Constitution, shall

be binding on -

various persons -

and the laws of the Commonwealth shall be in

force on all British ships.

The proposition that mere externality is

sufficient could not have been contemplated by the

framers of the Constitution, we would submit,

because at that stage, at least, there were
perceived limits on the power of legislatures other

than the Imperial Parliament to legislate

extraterritorially.

McHUGH J: There are two different issues, are there not?

One is the extraterritorial operation of the law

and the other one is the operation within Australia

of the law but in respect of matters which occur

outside Australia.

MR MASON:  Yes. On the facts of this case, yes, I would

say.

McHUGH J: Is that not the Commonwealth's submission in this

case? Did the Commonwealth's submission go so far

as to suggest that the mere fact that the

legislation is extraterritorial assures its

validity under Sl(xxix)?

Polyukhovich(4) 289 9/11/90

MR MASON:  It certainly went so far, as we understand it, to

say that the mere fact that it operates with

reference to events outside Australia.

McHUGI-iJ: "~ That is a different question, is it not?

MR MASON: Well, in one sense, one can almost argue the

position is a fortiori. I am trying to avoid the

proposition which failed generally in the Tasmanian

Dams case - I will come back to this - of trying to

construe this power by reference to whether or not it has an impact within Australia. I am trying to accept, in this proposition, that the placitum is

broad enough to enable a purely internally

operating law and what is then said by the

Commonwealth is that if it operates even purely

internally, that by reference to events that occur
or have occurred in the past overseas, then it

necessarily is to be characterized as external

affairs.

MCHUGH J: Yes.

MR MASON:  Your Honours, there was some flirtation by my

learned friends with the notion that the words

"peace, order and good government" perhaps meant

something different in the Commonwealth

Constitution to what they mean in State

constitutions. We would submit that that would be

a wrong interpretation and this Court should see,

in the words "peace, order and good government"

which introduce section 51, a similar nexus

requirement, albeit attenuated, that was found by

the Court in Union Steamship.

The passage from Port MacDonnell quoted at the

bottom of page 6 is now reported in 168 CLR 340

at 372. We would submit that the Commonwealth's

interpretation of Sl(xxix) as extending to a law

which is based upon - to pick up what

Justice McHugh has put to me - something external

power would be to contradict this proposition. to Australia as being sufficient to draw down the It was suggested by my learned friend,

Mr Rose, that unless the Commonwealth Parliament's

power under this placitum were this broad there would be a gap in power and that there would be

some denial of Australian sovereignty. We would be

unable to keep our head high because of soccer

hooligans or other events occurring overseas and

that there would be some denial of our sovereignty.

We have referred, at the top of page 7, to the fact that section 128 would give to the Australian

people power to make any necessary amendment of the

allocation of power if they felt that the location of the power in the State, to the exclusion of the

Polyukhovich(4) 290 9/11/90

Commonwealth in a relevant context, was

inappropriate.

_ We also overlooked, and I would add to the

~

submission, the application of section Sl(xxxviii)

as discussed by this Court in Port MacDonnell which

would clearly empower the States and the

Commonwealth acting together to overcome any such

limitation.

We would next submit that the power

in Sl(xxix) is not expressed as one in relation to

external matters or persons, and that to treat it

as if it were is to create a subrule which

contradicts the appropriate rule of

characterization which this Court has consistently

upheld with respect to other powers.

Then in section (e) the submission is made

that an affair connotes conduct on the part of a

nation or its nationals, and that it need not be

consensual. It must affect other nations and

Australia's relations with them to be external to

Australia. Now, if that proposition stated from

the dicta which we have collected is correct, it is

inconsistent with that proposition, in our

submission, to say that any law which operates by

reference to some matter overseas is necessarily a

law with respect to external affairs.

We then submit that the expression "external

affairs" should be seen as a composite and

indicating that the meaning to be given to

"affairs" must be one apt to apply to a national

government. In saying this we do not suggest that

there cannot be a single external affair, but the

notion "external affairs" again does not lie easily

with the idea of any fact or matter simply because

it is external.

Your Honours, the submission we then make in externality, it would involve giving the composite	(g) is that if one were to adopt this test of mere
expression "external affairs" a dual operation, and
a dual operation in which potentially inconsistent
results could flow from its application in a particular context.

As we would see it, the Commonwealth would say

that mere externality is not the sole test, that it

is an alternative test that may be resorted to when

the more traditional tests are not sufficient. But

we would suggest, and perhaps this is repeating in

a slightly different way the proposition made

above, we would suggest that there may be cases

where a law with reference simply to an external

matter is not a law which can be said to be with

Polyukhovich(4) 291 9/11/90

reference to an external affair. One then finds that within the one framework of expression, law with respect to external affairs, one has two tests

leading to different results and that cannot have

~ neen what is intended. That cannot be an

appropriate approach to constitutional

interpretation.

Your Honours, at page 257 Justice Deane, and page 260, Justice Brennan, put a proposition along

these very broad lines. If there is no effect on
the internal legal order, why cannot the power be
treated at large. If there is no concern about

clash with State legislative power, when we are

dealing with matters of mere externality, why

should the Court be limited or constrained in its

approach to the placitum?

We would make a number of responses to that

suggestion: the first is that it wrongly implies -

this may be doing injustice to it - that there may

not be Commonwealth/State clashes with respect to

matters offshore or with respect to laws that

operate in relation to matters offshore. And one

could easily envisage, for example, the sort of

legislation discussed in Union Steamship v King,

dealing with workers compensation legislation that

was capable of operating with reference to

externally experienced injuries in which there

could be a Commonwealth/State clash. So it does

not help to say that the problem is not going to

arise and, therefore, one can perhaps drop the

usual characterization approach.

Secondly, we would submit that this is to

ignore the proposition which Your Honour

Justice Deane has particularly stressed, that the
Constitution, in effect, exists for individuals.

Whilst that proposition is not embraced in its

entirety, the central part of it we certainly

accept, namely that one function of the

Constitution is to tell individuals, like
Mr Polyukhovich, what his rights are.	And

Your Honour Justice Deane spoke about that in

Duncan's case, 158 CLR 535, at 589 and in
Breavington, 169 CLR 41, at 123.

A third response to this approach to the placitum is to say that it really would appear to

be an inversion of the Engineers' doctrine which

was used, in effect, against the States in the

Tasmanian Dam case; that one construes a placitum

as it were in vacuo, giving a generous

interpretation to a grant of power and then, as it

were, worries only when 109 intrudes about the

effect of that. And we would submit that it is not

Polyukhovich(4) 292 9/11/90

an appropriate approach to the construction of the

ambit of the power.

Your Honours, at the top of page 9, we have

referred to three cases in which there are

references, stray references, to this notion of

mere externality and our submission is that those
remarks should be seen in the context of the cases

concerned where it is clear that there were matters

in which an external affair power was clearly

involved.	And it went much beyond mere externality
as a nexus.

Our submission therefore is that statements

which extend the power in this placitum to any

matter, thing or person outside the Commonwealth

should not be followed. We submit that this Court

is free to depart from those statements because

Mr Justice Murphy did not, in the Seas and

Submerged Lands case, base his judgment upon that view. The fact that in Tasmanian Dam His Honour

joined with it does not permit one to reread his

judgment in the earlier case. So this Court is

still free, in our submission, to repudiate this

approach to external affairs power.

Your Honours, at the top of page 10, we say

that, in any event, it is implicit that it must be

an Australian external affair that is implicit in

the obvious focus of the placitum and it follows

that a resolution must, at the very least, touch

and concern Australia in some way. Australia must

be involved with the affair, in our submission,
before Parliament may legislate on it under the

placitum.

Your Honours, we then address the alternative

attempt at a new characterization to say that a
matter of mere international concern is, per se, a
matter that draws down the power in the placitum.

Our submission, again, is broadly that

international concern cannot be used as a

substitute for the need to characterize the law as

one with respect to external affairs. Unless the

law has a direct operation with respect to an

external or international subject-matter, those
asserting validity must identify its purpose or

object and show that this pervades and explains the

substantive operation of the law to such an extent
that it warrants characterization as a law with

respect to external affairs. That is a paraphrase

from Justice Deane in Richardson.

Your Honours, the Commonwealth Parliament cannot, in our submission, recite itself into a

head of power and neither can the international

community recite the Commonwealth Parliament into a

Polyukhovich(4) 293 9/11/90

head of power simply because matters are of concern

internationally. There may be certain matters of international concern relating, for example, to a

~	border dispute between two South American countries that are not a matter of an external affair so far
as Australia is concerned.

It is in this area that we get to the rather

critical question, in our respectful submission, of

the role of the Court as an ultimate arbiter of the

constitutional validity of legislation. Some of

the Commonwealth submissions come dangerously

close, in our submission, to the argument that the
executive must the sole judge of what is an

external affair to Australia. That judgment is

unexaminable and that judgment is presumed to flow

into any legislation with the executive promotes

and has passed in Parliament.

We would submit that in the end and always the

power given by the placitum is one:

to make laws which are -

in truth -

conducive to the -

identified -

international obligation/benefit rather than

to make laws which are thought by the

Commonwealth to be conducive to that end.

And that is the passage we refer to from

Your Honour Justice Brennan in Tasmanian Dam.	We
then in paragraph 13, collected a number of

authorities in which support - an affirmation is

given to a passage in Burgess, Mr Justice Dixon's

judgment, about colourable regulation of a subject-

matter:

Under colour of carrying out an external

obligation the Commonwealth cannot undertake

the general regulation of the subject matter

to which it relates.

Now, if that proposition is accepted, as we submit

it should be, its corollary is the doctrine of

proportionality, but it is inconsistent with that
proposition and with the doctrine of
proportionality, to allow legislation on a topic

simply because it is of international concern. If

the topic is broad the doctrine of proportionality

cannot be meaningfully applied. Ordinarily in the

absence of a treaty or firm principle it will not

be feasible to identify precisely the subject of

Polyukhovich(4) 294 9/11/90

international concern and thus it will not be

possible to apply the doctrine of proportionality.

DAWSOJ:L_J:c: When you refer to the doctrine of

proportionality, what do you mean, proportional to

what?

MR MASON:  Reasonably proportional to the international

matter which properly enlivens the power. Usually

it is a treaty; it may be customary international

law, but - - -

DAWSON J: But it is not confined to treaties?

MR MASON:  It is not confined to treaties, but the treaty

example - - -

DAWSON J:	Not confined to obligations?
MR MASON:	It may apply to obligations, but the fact that
it - - -

DAWSON J: But is that what you are saying? That is what I

want to know. You say that the external affairs

power is only enlivened when there is an

international obligation and the measure which is

adopted must be reasonably proportional to meeting

that obligation. Is that what you say?

MR MASON:  An international obligation or an international

permission that is conferred, either by treaty or a

customary matter or by matters of, I will not say

universal, international - - -

DAWSON J: Concern?

MR MASON:	International concern which qualify as reflecting or impinging upon Australia's international
affairs.

DAWSON J: Then when you start to talk about something being

reasonably proportional to a matter of

international concern, for my part, I find no

meaning in it.

MR MASON:	May I try to make it more meaningful by going back to the example of Burgess' case.
International air safety was doubtless a matter of international concern whether or not there
was - - -

DAWSON J: Yes, but in Burgess' case the assumption was, I

think, at least the judgments did not go beyond it,

that the external affairs part extended at its

widest only to a faithful implementation of the

terms of the treaty. But that is gone now.

Polyukhovich(4) 295 9/11/90

MR MASON: Well, it has not gone - the question is how far

it has gone. It certainly extends beyond treaty to

a customary obligation or empowerment that leads to

~ treaty. The treaty is seen, really, as the icing

O-n the Cake .

DAWSON J: Well, I can understand what you are saying, if

you restrict the external affairs power to an

international obligation, particularly a treaty

obligation, but once you take it the steps further

which you did, increasingly the notion of

reasonable proportionality loses any meaning.

MR MASON:  Even if one accepts it as still being applicable

in the treaty context there is, in my submission, some lesson to be learnt even though I am having

difficulty framing the lesson. Again to go back to

the Chicago Convention, the treaty and the

discussions and maybe resolutions which led up to

it showed that there was, in this sense,

international concern about air safety but that did

not transfer the topic of air safety into

Commonwealth legislative hands. It would still,

even on a broader approach than adopted in Burgess,

in our submission, translate only power with

reference to air safety so far as it has some

operation based upon Australia's external affairs or Australia's role in the external international

community.

It is the distinction between the

subject-matter of the discussion and the level and
nature of the discussion itself that I am perhaps

trying to grasp and the Commonwealth submission

would appear to glide into the proposition that

because something is being talked about and

resolved upon then, per se, it is a matter of

international concern and, per se, that topic

without any restrictions becomes the subject-matter

of Commonwealth legislative power. We would submit

that that is an incorrect - - -

GAUDRON J:  But may that not derive from its very nature of

international air safety? What you say may be

quite valid in that context simply because you
could not have different international air safety

rules and still have international air safety. It

may have no application in other areas at all.

MR MASON:  When Your Honour says, "Might have no

application", the proposition I am putting, you are

saying, might have no application?

GAUDRON J: Yes. I am saying what you can derive from

Burgess' case may really be explicable by reference

to the notion of international air safety. That is

to say, it is just not something about which

Polyukhovich(4) 296 9/11/90

nations can go their own idiosyncratic ways, but it

may be that there are topics of international

concern in which countries can perfectly well do

that.

MR MASON:  Yes, and there may also be topics of

international concern that do not involve an

external affair of Australia. If, for example,

Mrs Lindy Chamberlain's affair took place in

New Zealand, would international concern about that

matter be enough to give the Commonwealth

Parliament legislative power to address it? We

would say, no, and it would not make any difference

that that international concern was voiced in

newspapers or parliaments, or United Nations

organs.

DAWSON J: It might if she was an Australian citizen.

MR MASON:  Yes. I am certainly not disputing that. It is

the test of mere international concern that I am

disputing.

BRENNAN J: Well say, for example, the Parliament chose to

pass any law which was calculated, in the view of

the Parliament, to advance the cause of peace in

Cambodia.	Would that be outside the powers of
Parliament?

MR MASON:  I do not think it would be, Your Honour. That

certainly would reflect the relationship of

Australia as a nation with Cambodia.	I do not see
any difficulty with that.

BRENNAN J: It is merely a matter of concern, is it not?

MR MASON:  No, it is more than a mere matter of concern. It

is a matter in which Australia's relations can be

seen to be affected by whether it remains silent or

does something, and relations, perhaps not just

with Cambodia, but in the international community

as a whole, but I would not say that every domestic

matter that happens to be debated world-wide is,

per se, a matter of international concern. That,

it would appear, was the length of the proposition

that was put against us.

Perhaps, as we say at the very bottom of

page 11, Australia's right as a nation to

participate in international and regional

institutions and organs should not be confused with

Parliament's right to select as a topic for

legislation everything discussed in such bodies.

In paragraph 14, we refer to the underlying

purpose of the placitum as identified by

Your Honour Justice Deane in Richardson:

Polyukhovich(4) 297 9/11/90

the conduct of the nation's international affairs, including the advancement of its

international relations and interests and the

discharge of its international obligations.

We submit that that purpose is not necessarily

served by a test which focuses merely on

international concern about a topic, at least

unless it is interpreted as one which necessarily

possesses the capacity to affect the country's

relations with other nations.

Your Honours may find some assistance in an

early opinion of Sir Isaac Isaacs which is found in the Opinions of the Attorneys-General, which I hand

to Your Honours. It is the third page, 292,
towards the bottom of the page, the second and

third-last paragraphs, a notion which I think was

taken up by some of Their Honours in Burgess' case,
that external affairs was used in preference to

foreign affairs so as to encompass relations beyond

those with the United Kingdom.

Your Honours, the notion that is advanced

against us that merely because other countries or international organs ~re interested in a topic or pass resolutions on a topic, makes it an Australian

external affair within the placitum pays no regard
to the fact that Australia may have voted against

that resolution or announced the treaty which was

itself a later embodiment of an earlier

international concern. We submit the test must

always be that, "Did the subject in truth affect or

is it likely to affect Australia's relations with

other nations?".

Your Honours, we would submit that perhaps the

attraction to some members of the Court of this

notion of international concern, as with the notion
of mere externality, is that it avoids the hard

decision of the Court sitting in judgment upon the

legislative judgment that has been made by

Parliament in relation to a matter which may very well be beyond the Court's immediate perceived

competence to decide.

DAWSON J: It does not avoid it; it just makes it

impossible, does it not?

MR MASON:  We would submit that the adherence to the

Communist Party doctrine is that the Court must

never let go of that role and that it may defer, it

may have rules about onus, it may have rules about

receiving information from the executive, it can

and does receive increasing amount of written

material in support of matters, but it should never

be drawn by these alternative tests into what is an

Polyukhovich(4) 298 9/11/90

invitation to abdicate its responsibility to sit in

judgment upon the validity of legislation.

. Your Honours, in paragraph 15, we submit that there is international concern about a number of

~

crimes, including some of the crimes that are the

subject-matter of this Act and that alone does not

attract Commonwealth power in this field any more

than international concern about the spread of

communism in 1950 justified the Communist Party

Dissolution Act. The mere fact that there was a

United Nations resolution about the matter would

not, in itself, change it.

There must, in our submission, be at least

some notion of mutual obligation or benefit. The

mere idea of Australia setting a good example is

not enough as a test, in our submission, to ground

valid legislation.

BRENNAN J:  What would you say about legislation to govern noxious emissions?

MR MASON: Australia's contribution to the greenhouse

problem, that sort of thing?

BRENNAN J: Yes.

MR MASON:  Well, that may well be a matter in which events

have occurred on a global basis in which there is a

mutual acknowledgement of the responsibility that

all countries have to do their bit otherwise we

will all die. The old example about Frenchmen

smoking on the streets of Paris is, perhaps, no longer a very good example of an extreme act in

which we do not all have perhaps an interest but I

do not, with respect, have difficulty with that

subject-matter that one does with a personal crime

situation, per se.

The origin of this international concern

notion appears to have been the statement by

Justices Evatt and McTiernan about resolutions of
tne ILO in Burgess.	But we would submit that

Their Honours there made it plain that the subject-

matter they were concerned with was such that it

truly reflected a matter of international concern

going beyond the mere fact that it had been the

subject of an ILO resolution. The passage quoted

at the bottom of page 13, where Their Honours

referred to:

or of other international recommendations or

requests upon other subject matters of concern
to Australia as a member of the family of

nations -

Polyukhovich(4) 299 9/11/90

grasps the sort of point we are trying to put.

We would in this context adopt what our

~	learned friend, Mr Charles, said at pages 252
and 253 of the transcript in which he referred to a
number of learned articles which discussed the
non-normative effect of resolutions. Now, if
resolutions of the United Nations are not normative
in international law terms necessarily, then it would be a fallacy, in our submission, to say that
they necessarily indicate a matter of international
concern and necessarily thereby empower legislation
under this placitum.
We would submit in paragraph 17 that the notion appears to have originated as a superadded
requirement before a treaty or other basis of an
international obligation could enliven the power.
This was pre-Tasmanian Dam, of course. But we
would submit that it is a logical inversion to turn that superadded factor, which was seen as a
controlling limitation upon Commonwealth power, and
to turn it loose as an independent substitute for
the characterization test.
I think paragraphs 18 and 19 have been developed already and I do not wish to repeat what
I have said there.

Your Honours, just before leaving

international concern, it is in this area in

particular perhaps that one comes back to the

propositions referred to in paragraph 1 of our

submissions about the need for it to be

demonstrated that the legislation did, in truth,

flow from the relevant triggering off factor of

external affairs. We repeat again that if

international concern is said to be the basis for

the legislation rather than customary international

law which we are happy with, or treaty which we are

happy with, then we would contend that there is

nothing on the face of the Act or the speeches, or

any other relevant material, to show that

international concern of this nature was the

empowering basis.

TOOHEY J:  Mr Solicitor, before you leave external affairs,

could I take you back for a moment to paragraph 8

at the foot of page 4? The paragraph is expressed

in somewhat tentative language and I take it it is

not meant to refer to the exercise of judicial

power but rather to have some relation to the

notion of external affairs. What exactly are you

inviting us to conclude, if anything, in relation

to that paragraph?

Polyukhovich(4) 300 9/11/90

MR MASON:  That there may very well be an international

human right to be protected against crimes against
humanity or genocide, and that if such

. international human right - universal human right

~ ~erhaps is a better way of expressing it, and there

has been a vast amount of literature discussing

this - if there is such a right, then that

independently may empower the Parliament of the

Commonwealth to legislate to give effect to it,

even if there is not a treaty or customary law

obligation operating directly upon the government

or the Parliament or the nation as such.

TOOHEY J: But do you say that no such right is

identifiable?

MR MASON:  No, I do not say that, no.

TOOHEY J: Well, you say there may be such a right?

MR MASON:  I am sorry, the reason for saying that is that we

have tried to keep out of the specific detail of

proving whether or not customary international law

empowers or obliges, simply because we are
concerned as intervenors only with the

constitutional principles. We certainly do not

dispute that there is material that suggests that

there is such an individual human right which is

recognized universally and thereby qualifies for

protection by nation States.

DEANE J: While you are being interrupted, Mr Solicitor,

would your argument be the same if we were now in

1942 and this Act only had a respective operation?

MR MASON:  My argument with respect to any particular part

of it, Your Honour?

DEANE J: Your general argument with respect to validity

under the external affairs power.

MR MASON:	From the particular date we are preceding any of the London resolutions or we are just in a war, in
effect.

DEANE J:  Yes. We are parties to a war in which these

things are happening.

MR MASON:  Perhaps unbeknown, as may well have been the case

early in the war, unbeknown or unrecognized

by - - -

DEANE J: Well, assume that the likelihood of them happening

is well enough known to activate the Australian

Parliament?

Polyukhovich(4)	301	9/11/90
MR MASON:	Yes.	That could conceivably be part of

Australia's external affairs at that time.	The
prosecution of the war would be, itself, an
external affair, yes.

~

DEANE J:  I follow the way you put it. It does, as does so

much in this case, hinge to a significant extent on

the tremendous retrospectivity involved, does it

not?

MR MASON:  Yes. Your Honours, on the defence power we do

not wish to say very much beyond what is written

there. There does not appear to be much

disagreement between any of the parties as to the

relevant principles.	The dispute is as to the
application.	As we submit in paragraph 23, this

Act is retroactive, non-prospective and not closely

related to Australia's defence. Indeed, in so far

as it deals with matters of crimes against

humanity, arguably not closely related to war to

that extent either. My learned friend, Dr Kenny,

suggested that one could discern a deterrent

operation which would save the legislation under

the defence power. We would submit that there is

nothing in the Act, or in the materials really, to

link it with any Australian war activity; any

defence of Australia. Its exclusively retroactive

operation, unlike the Genocide Convention, makes it

very difficult to say that this is pour encourager

les autres and in so far as it goes beyond war

crimes, there is the difficulty in being to

characterize it as being a deterrent with respect

to the defence interests of Australia.

Your Honours, I understand that the associate

has the outline of our response to Mr Charles'

latest submissions.

MASON CJ: Thank you.

MR MASON:  Your Honours, the attack on section 13(2), if

valid, possibly also affects section 18.	I had not
noticed it until my learned friend, Mr Charles,

this morning referred to 18(l)(d) where there is a

similar device adopted of incorporating the law in

force in a particular part of Australia in its

substantive operation. We support the validity of

that legislative device, which is a common device

whereby federal law incorporates by reference State

law and makes it apply in the State concerned.	It
achieves the function of saving parliamentary draftsmen saving a lot of paper and ensuring that

there is uniformity where that is desirable between
the operation of federal law and the operation of

State law in a particular area.

Polyukhovich(4) 302 9/11/90

In our submission, it is a device that has been used in various sections of the Judiciary Act

which are referred to, which are passed without any

adverse comment or criticism and is the device that

underpins the Commonwealth Places (Application of

Laws) Act and part of the legislation that was part

of the offshore settlement.

Your Honours, we would adopt as a general

principle the statement from Justice Kitto in

paragraph 2, that the notion of "The concept of

federal jurisdiction does not imply the existence

of a single body of law in force throughout the

Commonwealth" and we would, as it were, defy our

learned friend to indicate any rational basis for

saying that a distinction on this line is bad,

whereas he appears to accept the validity of a

distinction that adopts procedural and evidentiary
rules that apply from State to State and,

presumably, would accept without criticism whole bodies of what one might say were discriminatory

Commonwealth legislation in that it addressed only

Aboriginal people or only the concerns of migrants.

It surely cannot be the principle that all

Commonwealth law must apply to all Australians.

Where the Constitution has sought to say that

being a particular State is a fact which cannot be

entrenched upon, it has so provided in the sections

that we refer to in paragraph 2 of our outline.

Your Honours, Maguire v Simpson, referred to in paragraph 4, was a law of substantive effect

because the New South Wales limitations statute

barred the right as well as the remedy.

In Williams v R, the Court divided three-all,

with the Chief Justice's view prevailing on the

interpretation of a section of the New South Wales

Criminal Appeal Act which gave a right of Crown

appeal against an inadequate sentence. The

question was, did that inure to the benefit of the

Commonwealth Crown in relation to a Commonwealth

offence? Three of Their Honours, including the
Chief Justice, said no as a matter of construction,

but no one in the Court appeared to doubt the

capacity of the Commonwealth Parliament to uplift

what was a right-creating provision which applied

only in New South Wales so far as concerns crimes

that were prosecuted in New South Wales.

Mr Justice Dixon, who was one of the statutory

minority, expressly stated what was implicit in the

rest of the Court's judgment, that it is no

objection to the validity of such a provision that

the State law adopted varies in different State.

We would submit that section 79, which has been

applied in numerous contexts, indicates the

Polyukhovich(4) 303 9/11/90

validity of the more general proposition that we

advance.

_ May I take Your Honours to the passages in

Breavington's case, 169 CLR 41, that are cited on

paragraph 6. As Your Honours will be aware, there

is a case that has been removed into this Court - I

think it is called McKain and something - which I

understand will be heard next year which raises,

again, the issue of section 118 and the issues that

were addressed but unfortunately not conclusively

resolved in Breavington's case.

What we have done is assumed against

ourselves, for the purpose of argument, the
correctness of the propositions adopted variously

by Your Honours Justices Gaudron and Deane and

Mr Justice Wilson that section 118 does have some

substantive operation in creating a unifying scheme
of legislation but say that that does not have any

present bearing upon this Act. At the bottom of

page 99 in the joint judgment of Justices Wilson

and Gaudron:

The constitutional requirement that full

faith and credit be given throughout the

Commonwealth is not in any sense a general

curtailment of the legislative powers of the

Commonwealth conferred bys. 51 or of the

power to legislate with respect to the

territories conferred bys. 122 of the

Constitution. The full faith and credit

requirement is concerned only with the
interrelationship of the laws, public Acts and

records, and judicial proceedings of the

States. Its operation in relation to State

laws presupposes that a State law has not

given way, by force of s. 109 of the

Constitution, to a Commonwealth law. Two

issues are raised bys. 118 in relation to the

legislative power of the Commonwealth.	The
first is the extent of the power of the

Commonwealth to legislate as to choice of law rules to be applied in Territory courts. The

second is the power (assuming the power to

exist) to legislate as to choice of law rules

to be applied in matters falling for

determination in the exercise of federal
jurisdiction by reason only that they fall for

determination in the exercise of that

jurisdiction.

Neither of those two would appear to apply

here. And Your Honour Justice Deane, at page 130,

about point 3:

Polyukhovich(4) 304 9/11/90

The directive of s. 118 must, of course,

be read within its constitutional context.

That means that it must be read as applying

only to laws and Acts to the extent that they

are not invalid either on the ground that they

purport to operate beyond State legislative

competence or on the ground that they are

inconsistent with a valid Commonwealth law.

Your Honours, we would submit that any attempt

to draw support from section 118 in this

proposition of our learned friend that the

Commonwealth must speak with a single voice does

not draw any support from Breavington's case. And,

in paragraph 7 we draw to Your Honours' attention
the fact that it would appear from a section 78B
notice we have received that this issue is to be

raised in a forthcoming application for special

leave to appeal.

Your Honours, so far as the Chapter III

question is concerned, we submit, basically, that

the point does not really arise with reference to

this legislation. We do not understand my learned

friend to contest the proposition that a truly

retroactive law may be passed by Parliament with

respect to a head of power. We, of course -

BRENNAN J:	What do you mean by, "a truly retroactive law"?
MR MASON:	One which says, "You shall pay tax for last year"

or "That customs importation you did last year is

hereby made criminal".

BRENNAN J: They seem to me to be possibly two different

kinds of retroactive law. One says, "By reference

to something that happened in the past the present

or future liability is imposed".

MR MASON:  Yes.

BRENNAN J:  The other says, "That which you did in the past

is deemed to have been then unlawful".

MR MASON:· Well, even taking the latter against ourselves -

well, I do not know that the cases go that far. I

think the former is sufficient for present purposes

so, in that sense, I mean a retroactive law, in
that sense, and that is the type of retroactive law
we appear to have in this Act, that by reference to

something you have done in the past - - -

BRENNAN J: That may be a very substantial question. It may

be a substantial question which kind of retroactive

law this Act is.

Polyukhovich(4) 305 9/11/90

MR MASON:  It certainly punishes in the future for acts done

in the past so to that extent it is the first

category, I think, that Your Honour put to me. It

~ssumes that the acts were wrong, at least under

international law, before the Act was passed.

BRENNAN J: That may be irrelevant.

MR MASON:  We would say that is irrelevant because this is

an Australian law which, for the first time, speaks

by Australian law and makes criminal by Australian

law these acts.

Your Honours, the only qualification we make

upon the generality of the principle we have stated

about retroactivity or retrospectivity, is the one

at the top of page 4 which is repeating what is

said before that Parliament may not, in our

submission, do so pursuant to section Sl(xxix) if

that is the only head of power, if it would thereby

be in breach of a treaty obligation to which

Australia is a party proscribing retroactive

criminal laws.

We then submit that a retroactive law, per se,

raises no Chapter III issue. Parliament may say,

"You thought it was innocent to do it then but we

now make it a crime if you are proven to have done

it then. We invest in federal courts the power to
determine whether you did it then and then to
impose a penalty". That involves no trenching upon

the judicial power or the judicial function, in our

submission. The Court would still apply the

procedures and norms of the proper exercise of

judicial power.

This Court has, of course, said if there were,

in effect, an act of attainder the Parliament may

not be able to make the courts its agent for

enforcing an ad hominem law, but that is not the

situation of this case, in our submission.

In view of section 13(4)(b) which preserves the right to stay for abuse of process, and in view

_

of the fact that it is certainly possible to
conceive cases where notwithstanding the long lapse
of time there would be no unfairness. Take the
case of a person who pleaded guilty, for example.

Then one cannot elevate to a constitutional issue, in our submission, a question which says that this

law is necessarily inevitably, invariably unfair so

as to run into a problem with Chapter III.

Although it has been really scarcely embraced by my learned friend, we do submit that this Court

should not accept the American notion of

substantive due process for the reasons that are

Polyukhovich(4) 306 9/11/90

set out in paragraph 11 of our written submission.

We would heartily commend Mr Robert Bork's most

interesting autobiographical work.

MASON -CJ: "- Thank you, Mr So 1 ic i tor . .:,___ ,.-_

MR MASON: If the Court pleases.

MASON CJ:  Mr Solicitor for the Commonwealth.

MR GRIFFITH: If the Court pleases, the defendants have

co-operated on the issue of reply so there should
not be any overlap between us.

I turn first to the question of matters external to Australia. It is our submission that

section 6(3) operates with respect to conduct

outside Australia and is thus a law operating on a

matter external to Australia supported by

placitum (xxix). Perhaps it is not necessary to do

anything more than refer to Union Steamship,

166 CLR 1, at pages 10 and 14; and the

Port MacDonnell case, 168 CLR 340 at pages 372 and

373, to answer the point made against us with

respect to the expression "peace, order and good

government of the Commonwealth". We say it

connotes the conferral of a plenitude of power and

they are not words of restriction.

In our submission, it is sufficient that the

Act is limited in its application to Australian

citizens and residents, and the fact that it

operates in respect of past conduct cannot affect

this conclusion.

We would identify this as an area where there

is no competition between the Commonwealth and the

States. The Commonwealth is not relying upon the

external affairs power to intrude in any way into a

field which would otherwise be within State power.

The Act is confined to dealing with something done,

or the consequence of something done, overseas where the national Parliament thinks that that legislation is desirable. We submit that this is

a-simple case where the external affairs power is

used in a way which does not affect the internal

legal order in Australia.

So our proposition is that a law which so acts

on matters that do not affect internal power

between the Commonwealth and the States is one that

finds its justification here in a matter of

international obligation and concern. We say that all that is required is the conduct be external to

the territory of Australia.

Polyukhovich(4) 307 9/11/90

We submit, we have already submitted, there is

no relevant constitutional limitation to exclude a

law applying to Canadians killing seals in Canada.

As it is not a matter which intrudes into State

~ tower, we submit that it cannot be suggested, as

did my learned friend, Mr Charles, pages 262 of the

transcript, that the States should exercise primary

criminal power in relation to provisions dealing

with the killing of seals, say in Canada.

If we could refer to the 1817 case, just after

the Battle of Waterloo, le Louis, in our submission, the reference of my learned friend to

that case at page 262 and 263 of the transcript and

today, does not support the proposition for which

he contended. That case did not concern a United

Kingdom statute which, by its terms, applied to

foreigners oversees. It was concerned with the

arrest of foreign vessels on the high seas and

whether there was any legal authority for that,

given that the ship was a slave and not a pirate

ship. This was not sufficient basis in law for the

action of the British vessel in seizing the French

vessel.

Here we say that the situation is quite

different. We have an Act that expressly implies

to Acts in foreign countries, committed by persons

who are now Australian residents or citizens. In

that context, our submission is that the only issue

here is whether this law has the requisite

connection with external affairs, and we say

ex facie this law has that connection and we submit

that there is no requirement, of course, that once
that connection is there, that it be shown that the

matters covered by the Act affect Australia's

international relations as such. It is submitted

further, of course, that the Act also can extend to

acts external to Australia which have already

occurred. It is not an unusual thing for Australia

to assert authority in respect of actions by

Australian citizens oversees. Reference has	already been made - I do not know whether the Court
was given the precise reference - to the
Whale Protection Act 1980, in particular section 6, which deals with the prohibition on Australian
citizens from doing particular acts oversees in
connection with whaling. Jurisdiction is asserted
in respect of grave breaches of the
Geneva Convention over any persons, regardless of
nationality or citizenship, under the
Geneva Convention Act 1957-1973, section 6, which
by its terms provides for a death penalty in respect of these matters, but that, of course, has
now been abrogated by the 1973 Commonwealth Act.

Polyukhovich(4) 308 9/11/90

Where what is involved is an external affair,

not concerned with internal divisions of power, we

submit it is not the function of the Court to

~ssess the degree of international concern.

Perhaps, in one way, this was encapsulated in what

Justice Deane put to my learned friend, Mr Charles,

at page 265, when he noted that one view of the

submission made by my friend was that it seems that

the more external it gets, the less it is a law

with respect to external affairs, and we submit

that that form of approach is inappropriate when

dealing with laws of this sort which do not intrude

into any matter of internal affairs.

If I may refer briefly to the construction

issue arising under section 6, it is our submission

that section 6(1) fairly should be regarded as a

definition provision, or, if one likes, as a

drafting device.

McHUGH J: Well, what about section 8(2)? Does that not

make it plain that 6(1) has an independent

operation?

MR GRIFFITH: Well, Your Honour, it really is an exclusion

provision, in our submission, Your Honour, which

says that one can go no further than these

provisions, but one still is sent back,

Your Honour, to the provisions themselves to make

sense of them. Now, Your Honour, we would say that

there are really two possible results: one is that

which my learned friend has referred to as being

possibly in the mind of the Attorney-General, when

he referred to the possibility of acts being done

in Australia being embraced with the Act; the

other, Your Honour, is the view which we say, on

reflection, is the correct construction of the

provisions, that one has section 6(1) providing the foundation for the structure of a municipal offence

being one which is regarded as including and going

no further than the offences of war crimes or

crimes against humanity in international law, since

at least l September 1939.

Your Honours, it is our submission that one

should read section 6(1) as providing the

definition of serious crime which is picked up by subsection (3) in its application to those crimes

if done outside Australia. One can, as Your Honour

Justice Brennan pointed out, get the same result as

a matter of construction if one construes the

expression "was done" in the first line of

paragraph 6(1) to read "would have been", so that

if one regards section 6(1) as saying:

an act is a serious crime if it -

Polyukhovich 309 9/11/90

would have been -

done in a part of Australia and was -

et cetera. In that way, one is able, in our

submission, to trace through the operation of

section 9 in its application, we submit, to serious

crimes being defined by reference to qualities of

domestic law offences but with the added - - -

BRENNAN J:  The difficulty, though, with that approach is

that the whole structure of section 6 seems

curiously to be against it. In fact, it is not in any usual sense, a definition of an offence at all. The usual method of defining an offence is to say,

"It is an offence if a person does something''.

This says the:

act is a serious crime if it was done -

in other words, it takes the fact and makes the

fact into a crime. It does not define elements of

the crime in the usual way, awaiting then the

occurrence of the fact to see whether it falls

within it.

MR GRIFFITH:  We accept that comment, Your Honour. We say,

firstly, that this structure reflects the conscious

choice and this is dealt with by the relevant
ministers during the parliamentary debates to adopt

not the Canadian approach of providing that there

is an offence if one commits a crime which is a war

crime or a crime against international law and

building on this domestic law. Having done that,

as Your Honour points out, one does have a curious

approach but, in our submission, that merely

reflects the unusual subject-matter of this

legislation which - - -

DAWSON J:  Is it not just their moods have got muddled up?

It is the subjunctive mood there - or that is what

been done, or if it were done, and would, under the	intended. It is, an act is a serious crime had it	law in force have been an offence, that is what is
intended, is it not?

MR GRIFFITH: Yes, I think Your Honour is correct.

DAWSON J: Whoever drafted it did not understand all that.

MR GRIFFITH: Yes, Your Honour.

BRENNAN J: Well, if that is it, it is a very different

thing from what I just put to you because what I

put to you is that what it is saying is, an act is

a serious crime if A, B murdered C, D, if the act

occurred.

Polyukhovich 310 9/11/90

MR GRIFFITH: Yes, Your Honour.

BRENNAN J: But the proposition that Justice Dawson put to

you is more along the lines of the traditional

;_ method of saying, "These are the elements of an

offence". My proposition to you was that what this

Act purports to do is to define as a serious crime particular pieces of conduct which have occurred

and that is quite unusual.

MR GRIFFITH: Yes. Well, of course, Your Honour, one

explanation for that is that it is concerned with

acts in a finite time in the past but it is not

intended to have prospective operation to future

acts.

TOOHEY J: But, does the expression "serious crime" have any operation other than as a step in the definition of

"war crime"?

MR GRIFFITH:  Your Honour, we submit that it does not, that

one starts, in our submission, at section 9 and

works backwards.

TOOHEY J:  I mean, say for instance, section 6(1) had begun,

"An act is a serious act" and so on and then "war

crime" was defined as a serious act committed in

the circumstances spelt out in section 7, would it

make any difference?

MR GRIFFITH:  Your Honour, we would submit one would get to

the same result.

TOOHEY J:  So the reference to the word "crime", in a sense,

may not have a technical meaning but may merely be

a means of identifying conduct for the purpose of

defining what a war crime is.

MR GRIFFITH:  We accept that, Your Honour, subject to the

additional comment that reference to the position

of definition of those crimes as defined within the

jurisdiction of a State or territory is relevant to

identifying whether or not the particular conduct

is within that definition.

TOOHEY J: Yes, I understand that, but the expression

"serious crime" itself may simply be a label.

MR GRIFFITH: Well, Your Honour, we submit that is all it

is, that one picks up that definition. In effect,

Your Honour, "serious crime" is an expression, we-

say first used effectively in section 6(3), and one

then has resort to section 6(1) to see what it

means. Section 6(1) could have been, in our

submission, in the definition sections.

Polyukhovich(4) 311 9/11/90

McHUGH J:	Mr Solicitor, just going back to 8(2), my copy of the Act seems to have a typographical error. Is
that "by virtue of one or more", is that - - -
MR GRIFFITH:	Your Honour, we would say that would be a

typographical error, yes.

DEANE J: Is it typographical or legislative?

MR GRIFFITH:  Your Honour, probably it has been legislated in this form but, obviously, "or" was intended. I

do not think it is a misprint in the reprint of the

Act but we could obtain instructions about that.

DEANE J:  Mr Solicitor, while you are being asked about

tenses, when one comes to section 7 it says:

A serious crime is a war crime if it was

committed.

Does section 80 of the Constitution apply and, if

so, how does it apply?

MR GRIFFITH:  Your Honour, we would certainly say that there

would be an entitlement for trial by jury.

DEANE J:  You see, section 80 envisages that any offence

would be possible to say:

of any offence against the law of the

Commonwealth -

when and where it was committed. When was this

offence committed and where was it committed as an

offence against a law of the Commonwealth?

MR GRIFFITH: Well, Your Honour, perhaps one can say that

section - - -

DEANE J: If I am sort of taking you without

forewarning -

MR GRIFFITH:  No, it is an interesting question,

Your Honour. Your Honour, we would submit that

section 80 cannot have an effect so that it only

enables jurisdiction to be exercised in trial on -

to matters where the offences were committed within

a State.

DEANE J: But it says:

places ..... as the Parliament prescribes.

if the offence was not committed within any

MR GRIFFITH: Yes.

Polyukhovich{4) 312 9/11/90

DEANE J:  Does that not presuppose that any offence against

the law of the Commonwealth will be an offence

against the law of the Commonwealth when committed?

MR GRTI'FITH:  We would say not, Your Honour, in our

submission because, Your Honour, we say, it is

accepted that retrospective offences may be created

and that is sufficient, Your Honour, to answer

Your Honour's question, in our submission.

DEANE J: Well, there may be a presupposition in your answer

to me that may not be justified?

MR GRIFFITH:  Your Honour, we do submit this Court has

already determined that issue.

DEANE J:	What in Kidman?
MR GRIFFITH:	Yes.

McHUGH J: That may be a matter of opinion also.

MR GRIFFITH:  Yes. Your Honour, we may say it is a matter

of submission that it is accepted in that decision,

we submit, Your Honour, that ex post facto offences

may be created. We say, all but one of the Court

accepted that in Kidman and that, Your Honour,

section 80, in our submission, cannot apply to

exclude the capacity of the Commonwealth as a body

politic.

DEANE J: Well, be that as it may, where do you say this

offence against the law of the Commonwealth was

committed and when? Was it committed before the Act was enacted or was it committed when the Act

was enacted?

MR GRIFFITH: Well, Your Honour, upon the enactment of the

Act, in this case the accused Polyukhovich has been

charged. Now, we would submit, Your Honour, that

so far as where the act was committed, it was in

DEANE J: So, it was not an offence against the law of the	was in September 1941, I think. the Ukraine. When it was committed, Your Honour,	Commonwealth when it was committed but section 80
operates as if it were an offence against a law of
the Commonwealth when it was committed.

MR GRIFFITH:  Your Honour, we say the inquiry should be,

look at the position when a person is charged and

then identify these issues and we say, Your Honour,

that looking at it now, when Polyukhovich is

charged, the offence is committing this act
overseas and the offence is committing it at the

time it was committed.

Polyukhovich(4) 313 9/11/90

DEANE J: Yes, I see. What if the Act had said, "shall be

deemed to have been an offence against a law of the

Commonwealth committed in South Australia"?

MR GRiffITH: Well, Your Honour, that might be accepted as a

procedural device to be the exercise of the power

to provide for the place of trial. If it were so

regarded, Your Honour, we would say that would be

quite competent.

DEANE J: 

Good, thank you.

MR GRIFFITH: 

I was going to say something more about the

place of trial and perhaps I will reserve that to
my discussion on section 13(2), if the Court
pleases. Our principal submission, then, is that

section 6(1) should be regarded as operating as a

definition provision.  However, if the Court adopts

a contrary construction and takes the view that

section 6(1) does embrace within the definition

which can flow through to section 9 so that there

might be a war crime within the ambit of the Act
being an act wholly committed in Australia, in our

submission, that creates no difficulty in respect

of the operation of the Act dealing with a case

such as this which involves, we say, a crime which

is a war crime and a crime against humanity and a

crime within the definition of section 9, committed

by a person at a time when he had no connection

with Australia but who has now the connection of

being an Australian citizen and resident.

If there were a difficulty in regards to

supporting the operation of section 6(1) as it

applied to crimes within Australia under the

external affairs power, under this aspect of our

argument we would submit there would be no

difficulty in reading the Act down so as to confine its valid application to persons outside Australia.

In other words, confining its operation through subsection (3) regarding the reference back to

subsection (1) as being in effect for a definition

purpose of serious crime. But, in making that

submission of obvious severance, we confine it here

to our submission made on the external to Australia

aspect of the external affairs power.

We do submit that a connection with Australia

is not required but, in any event, we have already

referred to connections being that here the accused

are required to be Australian citizens or

residents, the fact that the war with which this

Act deals is a war which involved Australia and, of

course, we say there is further connection that the

alleged war criminals are in Australia.

Polyukhovich(4) 314 9/11/90

My learned friend, the Solicitor-General for

New South Wales, made quite extensive submissions

in paragraph 7 and following of his submissions, to

~	which he took the Court this morning on this issue,
out, in particular, in paragraph 9 and the
subparagraphs, paragraphs l0(a) to (j). I do not
intend to take the Court through each of those
paragraphs and answer them one by one but if we
could make the general point in respect of my
learned friend's proposition in paragraph 9, in our submission, as we have just put to the Court, section 7(1) should be regarded as operating in
respect of serious crimes committed outside Australia and for characterization purposes we
submit that even if the Act does apply to acts
within Australia the provisions external, covering acts external to Australia, are supported by this aspect of external affairs power.

As for my learned friend's propositions in

paragraph 10, we have submitted that the external

affairs power operates in respect of any matter

external to Australia, not limited to subject-

matter, and we say that the fact that one power in

section 51 overlaps with another has never been a

reason for limiting any of those powers.

We would submit that section 3 of the Statute

of Westminster should be regarded as merely
declaratory and there is no need to refer to it as

being the source of Commonwealth power. There are other powers, of course, where we submit there has never been any territorial limitation to

Commonwealth power; obvious ones are defence, and

we say, also, so is the external affairs power.

My learned friend has made general submissions

in respect of external affairs power in his written

and his oral submissions to the Court although he

did not come close enough, we would submit, to the issues which concern the Court in this case ..... in

the determination of whether or not this Act is

valid on the tests and approach which he

postulates. We would suppose that even on the

narrow view which is embraced by paragraph l0(e) on page 7 of my learned friend's submissions, it would be accepted that the War Crimes Act is valid. We

say that an allegation of commission of a serious
crime of murder in a foreign country by a person

who has since obtained Australian nationality could

affect relations between us and outside countries,

although, of course, we do not rely solely on this

ground.

Apart from those specific matters, we would

see that the points generally made by my learned

Polyukhovich(4) 315 9/11/90

friend have been answered by the submissions made

by my learned friend, Mr Rose, and by myself today.

If I may refer, before leaving this issue of

;__ matters external to Australia, to the issue of

characterization which Your Honour Justice Brennan

raised, I think with more than one counsel but

certainly with me, in argument on the earlier

occasions. Your Honour, at page 153 of the

transcript asked whether in arriving at the proper

characterization:

it is right to have regard to the fundamental

proposition of the common law that there is no

crime without a law at the time when the crime

was committed -

You asked, Your Honour, as we understand it,

whether a criminal law imposing -

a liability on an Australian citizen with

reference to something that is done by him

elsewhere at an earlier time -

is properly characterized as a law with respect to

external affairs and referred to the possible

alternative characterization is that -

it is a law which simply imposes a liability

on an Australian citizen -

Our position as to those issues is that there

is a presumption against retrospectivity in

construing statutes creating offences. However, we

submit that the common law doctrine which gives

rise to that presumption as an issue of

construction is irrelevant to the issue of

characterization of a law.

So we would say, for example, a law creating

an offence in respect of past conduct in the course

of overseas trade is a law with respect to overseas trade. Similarly, a law with respect to whaling by	an Australian ship outside Australia, we submit, is
a law with respect to external affairs.
Secondly, we would submit that the law here should be characterized on the basis of its primary
elements and not by reference to its limitation to
Australian citizens. We would submit that this law
could provide, as is the case in respect of the
Genocide Prevention Act that a person in Australia
within the jurisdiction could be tried. But in
this case there is a limiting factor. It is not
persons in Australia who may have committed serious crimes which are war crimes within the definition
to which the jurisdiction attaches. There is a

Polyukhovich(4) 316 9/11/90

limitation is not something which is to be picked

limitation to Australian citizens or residents of

up and used for the purpose of characterizing the

----	principal law itself which, we submit, is a law
with respect to the punishment of war criminals.
So by analogy, we would say a law concerning conduct in overseas trade by Australian residents
must be regarded at least as a law with respect to
overseas trade. A retrospective law concerning the killing of whales by Australian residents outside
Australia, we would submit, is at least a law with
respect to external affairs; and we say so also
would be a law with respect to killing of whales
outside Australia by an Australian citizen at a
time before that person became a citizen.

Further, we would comment that even if there

was a need for a connection between conduct in

Australia on this issue of characterization, there is sufficient connection in the fact that the

person has since become an Australian resident. If

the Australian Parliament chooses to concern itself with past conduct outside Australia by a person who

is now a member of the Australian community, we say

the law is one with respect to Australia's external

affairs. I think I previously made the point that

in our submission once one gets to that point there

is no occasion to go on a further inquiry to see

whether or not the law also can be characterized

either as a law under some other head of

Commonwealth power, or as a law which would not

otherwise be within a relevant head of Commonwealth power other than that for which it has already been

so characterized.

I will say something briefly now on the issue

of proof of customary international law. This is a

matter which was substantially covered in our

primary propositions, but we would submit that the

thrust of my learned friend Mr Charles approach was

to seek as proof of customary international law a

requirement of obligation of expression equivalent

almost to that of a statute, or at the very least

of a treaty.

We would submit that international customary

law cannot be established only by proof of

universal practice and widespread opinio juris.

The nature of the particular rule will be relevant.

For instance, where there is consistent evidence of

State practice we submit the need to establish the requisite opinio is reduced and we dealt with these

matters in length in our arguments in the

transcript, page 99 to page 103.

Polykhovich(4) 317 9/11/90

In our submissions we set out the widespread

and varied practice and opinio on the basis of

which we contend that there is an obligation in

customary international law to seek out and either

extradite or bring to trial war criminals. This is

a matter covered by paragraph 5.4 of our written

submissions. We pointed to the United Nations

resolutions, multilateral treaties, actions of

States which we say adequately evidence the

necessary opinio and practice of States so as to

constitute a customary obligation.

We say it goes well beyond the isolated

instances which the plaintiff described this

exercise at page 244 of the transcript.	We, of
course, pick up the reference made in the

transcript at page 244, point 5, in reference to
the State of Israel which we would say Israel, as
have other States, are to be regarded as acting in

the belief that there was an international

obligation. This is confirmed by the Eichmann

judgment which appears at volume II of our

materials, page 68.

Looking at this material, it is our submission

that the State practice to which the Court has been

directed is consistent only with the acceptance of

an obligation by States to bring war criminals to

justice by trial or extradition. Whilst it is not

suggested that the United Nations General Assembly

resolutions are binding in themselves, we submit it

is well accepted that they may evidence State

practice. We rely on these resolutions for the

purpose of establishing State practice but we do
not rely on these resolutions solely for this

purpose or in isolation from the many other matters

to which we have directed the Court.

As to the fact that this is very much in

accordance with. the proper principles of approach

on these issues of proof of customary international

law, we refer again to Brownlee appearing in the

materials, volume II, page 95. In particular, we

say that the fact that later resolutions, for

example, of the General Assembly recall earlier

resolutions does not detract from, indeed, we

submit, it confirms the significance of the wording

of the operative part of subsequent resolutions.

Turning to the plaintiff's contention that if

there ·is· any obligation it is only to extradite so

that an alleged war criminal might be punished in the country where his crime was committed, we say
that that would seem to be running counter to the

plaintiff's further contention that there is no

such obligation because extradition is

discretionary. We refer to the position in respect

Polykhovich(4) 318 9/11/90

of nationals, by and large, not being subject to

obligations of extradition under extradition

treaties and agreements.

_ We say that it does not follow from the fact

"that a State may choose not to extradite an alleged

war criminal, that it can choose not to bring him

to trial. The obligation in respect of war

criminals, as we put the obligation to the Court,

is to bring them to justice either by extradition

or by trial. The obligation is to do one thing or

the other. Extradition is not usually applicable for nationals but a refusal to extradite for this

reason does not affect the obligation to bring the

war criminal to justice. We say that an inability

to exercise, of course, emphasizes the other

element of the obligation to bring to justice

within the country.

If punishment is the aim there is no reason to

limit the trial to the court of the country where

the acts were done. Although, of course, as we

have seen from the historical materials, there may

be reasons to prefer such a forum in certain

circumstances.

We do reject my learned friend Mr Charles'

submission which he made particular at pages 239

and 241 and 242 of the transcript as to the

strictness of proof required by international law.

We submit that universal practice is not required

in order to reach a conclusion of customary law

exists and operates. This is particularly the case

where the status of a rule was customary law can be

deduced from the nature of the rule itself and its

inclusion in a wildly ratified multilateral

convention.

This was reflected in the Nicaragua case,

which has already been referred to, where the

international court posed all the traditional,

correct questions regarding the existence of actual

practice in opinio juris and then made only

perfunctory references to the practices of States

-looking principally to opinio in the form of

resolutions, declarations and other instruments.

We submit, this is merely an example of the court

finding the existence of a customary law rule

despite the absence of overwhelming practice and

not, as the plaintiff suggests at page 242 of the

transcript, of a case which failed through a

failure to establish a rule.

In the North Sea case, while one treaty

provision was held not to be customary law, the

court held another treaty rule to be in fact

reflective of the customary rule although it had

Polykhovich(4) 319 9/11/90

only recently been emerged and appeared in the

treaty. But, one does not need universal practice

in order to find international law rules. It was

also supported by the recognized position that a

~~lent participant can be bound by a customary rule

as it emerges. Only a persistent objector may be

able to contract out of a customary rule during its

process of formation. This is referred to by

Brownlee in the materials, at volume III, page 93,

and even then in the case of a persistent objector

it may be the case that the obligation of a

customary rule develops to the extent that even in

that case an objector may find that he is bound.

The dynamic nature of international law and

the need for its juridical articulation, unrelated
to formalities of State will, has been recognized

by Professor O'Connell, in the materials in volume

3 page 107. I will not read that extract to the

Court but give the references as making that

proposition. The existence of an international law

obligation is not only to be established by

overwhelming evidence. The court called upon to

determine the existence of customary law has to

appreciate the possible existence of an alleged
rule against a general background that there may be
little opportunity for States or international
tribunals to articulate the obligation. In a case

of universal principles of a humanitarian kind, it

has been said, and if I could hand the Court these

extracts by Theodor Meron in his work Human Rights

and Humanitarian Norms as Customary Law, published

in 1989, in particular pages 36 to 44, it is said

at pages 41 to 42 that:

assume that humanitarian principles deserving

recognition as the positive law of the

international community have in fact been

recognized as such by states. The 'ought'

merges with the 'is', the lex ferenda with the

lex lata.

And we refer the Court to these particular

extracts, because the point made by the author is

~that in respect of when one is dealing with basic

issues of human conduct, the infringement of human

rights of the sort which one is concerned with when

dealing with war crimes and crimes against

humanity, in that case he refers to an appropriate

approach being the desire to articulate the
appropriate rule of customary international law,
without going to the furtherest extention of
requiring universal evidence of State practice.

This is consistent, of course, with the words of

Lord Sankey in re Jure Gentium, which we referred

to in our earlier submissions in the transcript

page 103, where His Lordship made the point that a

Polyukhovich(4) 320 9/11/90

court may have to select the better view as to the

content of an international law rule. On the basis

of the evolution of international thinking and

practice, reflected in the development of the terms

~ of relevant United Nations resolutions, recent

State practice building on earlier practice in the

aftermath of World War II, we submit that there is

a customary law rule to try or extradite alleged

war criminals.

BRENNAN J:	Mr Solicitor, what is the humanizing content of the humanitarian norm which is sought to be
established for the purposes of your proposition?

MR GRIFFITH: Well, Your Honour, what we say is not so much

to have a particular proposition to support the

legislation in this case, but what we say is the
author in this discussion, Your Honour, indicates

the approach, particularly in respect of

humanitarian issues at international law, to make

the point that the function of a body articulating
relevant principles is, in effect, to be prepared

to lead, in a way, rather than to follow, to

articulate by reference to these fundamental

principles norms, an obligation, Your Honour,

reflective of the fact that the subject-matter are

matters of basic human concern dealing with matter

of humanitarian rights and obligations.

BRENNAN J:	How do you make that applicable to this case?
MR GRIFFITH:	Your Honour, really as a general proposition,

really reflective of the submissions which I have

just made to the extent that what we say is,

Your Honour, that the position is not as my learned friend, Mr Charles, put that one should look for a universal State practice in this area but one

should say when dealing with an issue such as a crime against humanity, one should consider the fundamental abhorrence of the world community to

crimes of this sort and be more readily prepared,

Your Honour, to accept that these matters are

matters to be condemned to the extent of

~articulating a matter of international principle or

international law to the extent of obligation and

not merely right.

BRENNAN J: Retrospectively condemned is a humanitarian

objective, is it not?

M..~ GRIFFITH: Yes. We say, Your Honour, it is a lot easier

to find in humanitarian issues this result than if

one is dealing with a practice such as, for

example, international gulfs and bays, something of

that sort.

BRENNAN J: Yes.

Polyukhovich(4) 321 9/11/90

MR GRIFFITH:  Your Honour, at the bottom of page 43, perhaps

the point is best made, where the author says:

The law-making process does not merely

'photograph' or declare the current state of

international practice.

And we say, Your Honour, that is the inquiry my

learned friend, Mr Charles, invites and we are

happy to make our stand on current practice. Then,

the author goes on to say:

Far from it. Rather, the law-making process

attempts to articulate and emphasize norms and

values that, in the judgment of some states,

deserve promotion and acceptance by all

states, in order to establish a code for the

better conduct of nations. This applies in
particular to instruments designed to humanize

the behaviour of states in armed conflict,

which is characterized by violence and

violations, by the necessity of committing

acts frequently not preceded by careful

deliberation, by exceptional conditions, by

limited third-party access to the theatre of

operations, and by the parties' conflicting

factual and legal justifications for their

conduct.

Your Honour, the author also makes the point that

one should not be deterred in that approach by the

circumstance that State practice might not be
universally to act in compliance with what might,
otherwise, Your Honours, is appropriate to express

as, is put, the:

code for the better conduct of nations.

But, Your Honour, we say that really as an

additional argument which, we would submit, firstly

is not necessary to resort to but merely point out,

Your Honour, that the particular context of

subject-matter here does make it easy for the

~court, we submit, to find the expression of

obligation. Of course, if the requisite obligation

is not made out, we would say that in any event

clearly there is an express international right to

take action consistent with the obligation for

which we contend and we say that that equally would

sustain this legislation.

Our principal submission, Your Honour, is that

on the appropriate test, as we have articulated it,

and not by the particular circumstance of
humanitarian issues, there is more than enough
evidence in these various materials we have put for

the Court for this Court to be able to recognize

Polyukhovich(4) 322 9/11/90

and express the nature of the international

obligation which is simply put to identify war

criminals and then either extradite or to punish

them within the jurisdiction.

If I could then turn briefly to this issue of

concern. We say that it has been demonstrated that

it is States who have evinced considerable

international concern that alleged war criminals be

apprehended and brought to justice and my learned

friend made suggestions to organizations but we

would submit that there is ample evidence and

examples of this are set out in length in our

references in paragraph 9.5 of our submissions and

in the appendices to the materials.

We also say that this aspect of international

concern did form part of Parliament's

deliberations. My learned friend made the point

that there is really nothing much in the Act, and I

think he also indicated in the parliamentary
consideration of these issues to indicate that the

Commonwealth did act by reference to issues of

international concern as distinct from what he

regarded and submitted to the Court as what could
be the domestic concern referred to in paragraph

(a) of the preamble.

At this point, may I make good my undertaking

to Your Honour the Chief Justice to furnish

extracts of Hansard with reference to the debate on

section 17, it was then clause 15 of the Bill, at

the same time handing to the Court a bundle of

materials prepared by the second respondent which

comprises of various materials as the Court may see

from the index and also further extracts from

Hansard.

I should indicate to the Court that there are

extracts of Hansard rather than complete extracts

of Hansard because if we were to give the Court all

the Hansard debates they would represent a volume

of this size and we feel that it may not be of

~great assistance to the Court to have this much

debate to read, although if the Court feels

strongly to the contrary no doubt copies can be

made available and used as a door stop if nothing

else.

The materials that I handed to the Court have

attached as appendix 5, 6 and 7 the report of the

Senate Standing Committee on Legal and

Constitutional Affairs, entitled Matters Relating

to the War Crimes Amendment Bill and if I could

take the Court, briefly, to appendix 4. There is

extracted the front pages of that document and

then, without including all the matters in the

Polyukhovich(4) 323 9/11/90

document, three of the appendices to that document.

We take the Court to this to supplement and,

we say, to some extent answer my learned friend's

suggestion that since 1961 there had been no

request for extradition as indicating an absence of
international concern.

The Court will see that the three documents, appendix 5, appendix 6 and appendix 7, consist of

confirmatory letters from the Director of the

Special Investigation Unit into War Crimes, with relevant officers of the Attorney-General's

Department for the USSR in Moscow and their

equivalents in Yugoslavia and Hungary. And,

without taking the Court in detail to the contents
of these letters, what they provide for is a very

diligent co-operation by the Soviet and the other

government authorities with respect to the

investigation, identifying of relevant witnesses

and assistance in respect of the war crimes

investigations being carried out in Australia under

the Australian legislation.

I am told by my learned friend, the Director of Public Prosecutions, and he perhaps can

elucidate this to the Court, in particular the

document appendix 5 is regarded as very significant

because it is the first time, as it is understood,

that the government of the USSR has agreed for its

citizens to be made available as witnesses overseas

for the purposes of litigation and we would say that the extent of these agreements and the co- operation provided for does indicate in a very

contemporary way the extent to which these issues
of the identification and then the punishment of

war criminals is regarded as a matter of

international concern. And, of course, the three

countries covered by those agreements are, we

submit, by common knowledge, countries particularly

involved in respect of matters where issues

concerning criminality under international law of

conduct which occurred during the war can arise.

-

If I could take the Court then briefly to the

thin extract of Hansard which I handed to the

Court, that was supplemental to the bound volume

because not all the pages dealing with the

amendment to section 17 were given to the Court.	I
am sorry, Your Honours, I am out of order.
If I could take the Court to the volume, page 4446, which appears 19 December 1988 under
tag 5, the pages are in numerical order but not
separately numbered.	But at page 4446,

19 December 1989, Senator Tate was dealing with the

Polyukhovich(4) 324 9/11/90

question of the basis of the Act. In this extract

he does confirm the view that the government took

the view that the legislation was supported in so

far as it applied to crimes against humanity by

~	reference to the circumstance that crimes against
humanity were crimes against international law both
before and during the First World War. But in the
last paragraph commencing in the right-hand column
on page 4446, the senator says:

the prosecution of acts or omissions

recognised at international law as crimes is

clearly a matter of international concern.	At
customary international law, Australia is
entitled to prosecute persons for war crimes.
Furthermore, failure to so deal with persons
alleged to have committed such acts or

omissions could affect Australia's relations

with other states. Other states, particularly

those which have conducted war crime trials,

may react adversely to perceived leniency on

Australia's part towards such persons.
Accordingly, the Government believes that this

legislation can be supported on the basis of

the external affairs power rather than the

defence power .

Then in the right-hand column on page 4447 he

makes the point that:

Crimes against humanity were crimes at

international law prior to World War II.

And he enlarges on that case. And if I could take

the Court then over to page 4454, at the foot of

the page, last sentence, the senator continues:

What I said was that the prosecution of acts

or omissions recognised at international law

as crimes is clearly a matter of international
concern. As I understand it, the High Court
of Australia has indicated that that area of

international concern to which I have

..	referred, dealing as it does with war crimes
and crimes against humanity, would be clearly
a matter which falls within the description of
a matter of international concern.

I will not suggest for a moment that there is any

estoppel against the Court on that basis.

I am advised that at customary international

law Australia is entitled to prosecute persons

for war crimes.

The question of opprobrium that might follow from the failure of Australia to

Polyukhovich(4) 325 9/11/90

prosecute instances which it is alleged could

be followed up if we had the will is a further

element which can be taken into account in

deciding whether this is a real matter of

international concern. The external affairs

power allows the Commonwealth to prosecute

persons who have committed crimes which are

recognised under international law as matters
of concern to the international community, not

merely, as Senator Harner would say, to the

domestic jurisdiction of the country within

whose domestic territory the offence occurred.

My learned friend referred to the statement of

Sir Garfield Barwick, the transcript page 253, that

he made in 1961 as to closing the book. We would

say that does not show anything, other than to show

that international concern on a subject may ebb and

flow over time, and we say what those remarks

cannot show and cannot be directed to, is the issue

of international concern today.

BRENNAN J: If we have to evaluate the degree of

international concern, if that should be a relevant

consideration, what complexion does one put on that

letter of 23 September, appendix 5, where it

appears that it was the director of the Australian unit which brought to the attention of the Russian

authorities the initiative of the Australian

Government and offers to pay the costs of the

investigation?

MR GRIFFITH:  To pay the costs?

BRENNAN J: Yes.

MR GRIFFITH:  Your Honour, the actual matter of costs, we

would say, is neutral on the question of

international concern but, Your Honour, what is

involved here is an agreement to make witnesses,

not merely available in Russia, but available to

come to Australia and be maintained here perhaps	fo~ months for the purpose of the prosecution of
~the criminals. Obviously, Your Honour, an issue to be determined between the parties would be who is
to pay the cost of that and it is not at all surprising that being the party with the active
conduct of the proceeding, that is a matter which
Australia assumes responsibility. One can see
other reasons why it could be regarded as
appropriate if one had regard to matters such as capacity to pay or something of that sort, but we
would submit, Your Honour, that is a matter of
merely an incident to the aspect of co-operation between the parties to agree to this unprecedented
act of co-operation in ensuring that Australia was

in a position to discharge what is put as the

Polyukhovich(4) 326 9/11/90

matter of international obligation matter of

international concern.

BRENNAN J: Well, one way of reading that, perhaps, is that

this is an Australian initiative in which the

Russians have agreed to participate.

MR GRIFFITH: Yes, Your Honour, but the point made is that

it is a matter co-operation to obtain the result.

We know, Your Honour, from the materials and from

statement made reference, there had been applications from the USSR for extradition which

the Menzies report that in 1961, the matter that -

did not occur. Now we have, Your Honour, some

25, 26 years later, evidence of this continuing -

this issue, Your Honour, of the pursuit of war

crimes leading to co-operation. Your Honour, one

can make the point, well Australia is obviously

more co-operative in this now than it was in 1961;

that is obvious, but at the same time it is put,

Your Honour, although it is so many years after the

war, unprecedented so far as the USSR was

concerned, a level of co-operation in doing this.

We, Your Honour, submit that that does confirm a

concern .

It is put, Your Honour, to answer my learned

friend's submission, that nothing has happened

since 1961.	We have referred to the various
resolutions.	We have referred to the work of the
International Law Commission.	We have referred to
the United Nations General Assembly.	We have

referred to the various conventions in respect of genocide in all our other materials, Your Honour,

to confirm, we say, an increasing level of

international concern which we say now is to be

expressed at the level of international obligation

in respect of these matters. This material,

Your Honour, goes to show that as far as

Australia's relationship with other countries is

concerned, the book was not ruled off in 1961. It

is very active, indeed.

...

Of course, Your Honour, this is a general

agreement dealing with not just one matter but, one

understands, many matters whether it is scores or

hundreds. In any case, it is many matters being

investigated.

So we submit that this is a case where the

application of a standard of international concern

is entirely appropriate. My learned friend, the

Solicitor-General for New South Wales, made some

reference to references by my learned friend, under its constitution but, at this ~oint, we say

Polyukhovich(4) 327 9/11/90

that the plaintiff derives no assistant from
analogy with United States political question

doctrine. In the United States that doctrine

provides the jurisprudential foundation to the

acceptance of legislative or executive judgments in

appropriate cases. This was referred to you by,

Your Honour, Justice Brennan in Gerhardy v Brown,

159 CLR 139.

We submit under that doctrine United States

courts defer to legislative or executive judgments

because they involve matters said to be

constitutionally committed to the legislature or

the executive and not to the judiciary. And, in

our submission, analogies with United States

political questions doctrine is expressed, for

example, in Baker v Carr do not advance the

plaintiff's case. It merely supports the

contention that whilst the standards of

international concern is entirely appropriate for

exercises of international external affairs power
the adoption of that standard should not involve
the court in assessing the degree to which the

legislative action or an action has the capacity to

affect Australia's relations. We say that cases

such as Baker v Carr provide a jurisprudential

foundation for judicial acceptance, or judicial

deference, to legislative or executive judgments in

this area.

We turn now to the issue of retrospectivity.

We submit that the Act is retrospective only in that it gives to Australian courts jurisdiction to

try offences in respect of acts committed between

1 September 1939 and 8 May 1945 which are defined

no wider than crimes which would have been war

crimes, or crimes against humanity, at the time

they were committed.

We say what the Act does not do is render

hitherto innocent acts unlawful.	We say that the
Act does not occasion and does not give rise to any

inquiry as to issues of injustice which might be

said sometimes to arise from other retrospective

~legislation. Any criminal act - and we are dealing

with the case of wilful killing - which is a

prerequisite for guilt, was criminal in Australia

at the time of the commission.	We say that is
required by section 6(1) and 6(2) of the Act.	We

say, in passing, that it is also regarded as

criminal by the law of other civilized countries

and my learned friend, Mr Weinberg, has made the

point that it must be the case that it would be

criminal by the law of country where committed, and

this, very much, is confirmed by the reference to

Hetherington's report which one finds in volume III

at page 169 of the materials.

Polyukhovich(4) 328 9/11/90

So, we submit that the Act is retrospective

but not retroactive in that it does not render an

act unlawful which is innocent when committed. we say that it cannot be regarded as retroactive when

~	}udged by the standards of international law. International law provides that no one should be
held guilty of a penal offence in respect of an act or omission which was lawful at the time or place
of its occurrence. The law will not offend this
retroactive principle if the act which is
proscribed was criminal at the time of its
commission under international or national law. We
say the acts to which this Act relates were in fact criminal under international law from at least
1 September 1939.

Can we refer now to the issue of genocide

which was raised by my learned friend, Mr Charles.

We submit that it is of no relevance to argue, as

he did at page 100 of the transcript, that genocide was not an offence at international law until after

World War I. In this case we are not concerned

with the question of genocide, per se. We are

concerned with crimes against humanity committed in

a war setting.

The concept of genocide as a distinct

international crime may only have emerged after

World War II with the adoption of the

Genocide Convention of 1948, but the concept of
crimes against humanity, especially in a war

context, was a separately established concept and

one can find references in that arising from first,

the World War I, and I refer the Court to the

1919 commission appearing in volume I at page 133

of the materials, and such crimes were then

accepted as legitimate matter for international

punishment. This is confirmed by the 1980 report

by the International Law Commission rapporteur,

which appears in volume II at page 293.

We have referred also to the statements in the

Atstoetter and the Nuremberg and other cases,

andthis was covered by our argument in the

~transcript, pages 67 to 69 and 108 to 113. The

question of whether crimes against humanity were

crimes at international law was raised in

parliamentary debate, and as I have referred to the

Court, at page 4447 of the Senate Hansard, 19

December, 1989, the minister representing the

Attorney-General provided details of legal

arguments in support of the government's view that

such crimes were recognized at international law,

prior to World War II.

The Act here relates only to persecution-type offences, committed when the country was involved

Polyukhovich(4) 329 9/11/90

genocid,e per se. It is our submission, what all the cases, in the aftermath of World War II and

in a war or when the territory of the country was
subject to occupation. It is clearly intended, we
say, to deal with extermination of peoples on

racial or religious grounds, committed during

more recently, do is that they affirm that there is

no objection on grounds of retrospectivity to the
bringing of charges against a person involving

crimes against humanity where they were committed

in the course of World War II. The cases

universally affirm that those responsible for the

mass killings of innocent civilians during

World War II, by persons associated with

German Government or its occupying forces committed

crimes at international law.

We say these offences offend the general

principles of law recognized by all civilized legal

regimes, and even if not customary law as such were

contrary to international law. We refer to

re List, volume II of the materials, pages 143 to

144; re Altstoetter, volume II page 38;	Eichmann,
volume II pages 65 to 70;	Demjanjuk, volume II,

pages 106 to 107; Finta, volume II, pages 138 to

146, particularly 144, and Wagner, volume III,

pages 71 to 72 and 78 to 79.

For this Court to now hold that crimes against

humanity committed during World War II were not

crimes at international law for which there is

universal jurisdiction, we submit, would react

contrary to the opinions of courts of the United

States, Canada, Israel and also the military

tribunals which heard the cases immediately after

World War II.

We say also it would be contrary to the

understanding of the international community itself

reflected in provisions such as Article 15(2) of

the International Covenant of Civil and Political

Rights, volume IV, page 14, which was expressly

drafted so as not to preclude prosecutions for war

-crimes or crimes against humanity; similarly,

Article 7(2) of the European Covenant on Human

Rights. We refer also to the Deschenes Report, in

volume III, page 143; Hetherington, volume III,

page 172.

So we submit that the comments by the

plaintiff and the reference in paragraph 644 of the

Hetherington Committee referred to by my friend,

Mr Charles, about the status of genocide in

international law during World War II, are

misdirected in their application to the matters

covered by this legislation.

Polyukhovich(4) 330 9/11/90

In fact, when one goes to paragraph 644 of

Hetherington, the paragraph referred to by my learned friend, the same paragraph goes on to

acknowledge that -

"-- ~

special provision has been made in human

rights instruments to enable the prosecution

of crimes of persecution, in extermination

committed by Germany during World War II which

were regarded as so unique and abhorrent that

they should not go unpunished.

This material was handed to the Court by my learned friend.

We submit that as Brownlie puts at page 100 of

volume III of the materials:

Crimes against humanity are war crimes writ

large -

and we say that it is only this limited category of

crime which we are concerned with here.

I make brief reference to what I might term,

the Burmester opinion, which was handed to the

Court by my learned friend in his argument. That

was the letter advice which was annexed to the

Menzies Report, being a letter dated 22 July 1986.

We submit that this does not detract at all from

our contentions as to the existence of obligations

or rights to search out and to punish war criminals

either by trial or extradition. This opinion was

concerned with whether certain instruments in 1986

had any direct application to extradition of war

criminals from Australia, and this was a narrow

issue.

The opinion was concerned not with questions of whether or not there was some broad obligation

to support legislation to deal with the

identification and punishment of war criminals.

So, it is not a case that there has been a change

... o.f view. This opinion is in no way disavowed. The

instruments there referred to do not in themselves

constitute an obligation to extradite. We say, to

ask whether an obligation exists in customary law

to extradite in isolation, is to ask the wrong

question because the normal international law

principle we have referred to is the obligation to

punish, namely by extraditing or by trial within

the country where the person is.

States may choose how to discharge that right.

This reflects the sensitivity on issues of

extradition in certain cases. For example,

extradition to particular countries, the fact that

Polyukhovich(4) 331 9/11/90

extradition often is bilateral and, of course, as

has been referred to, the question of extradition

involving nationals which normally does not occur.

If I may now turn to matters related more

directly to the construction of the Act. Firstly,

as to the provisions of section 13(2) to which my

learned friend has made additional reference in his

supplemental submissions to the Court today, if I could indicate to the Court that this is a matter

where my learned friend and the Director of Public

Prosecutions and myself have agreed on a certain

division of the arguments so I will present some of

the argument on this aspect.

It is our submission that sections 13(2)(a)

and (e) govern the determination which a particular

State court has jurisdiction to try an offence

under the Act. If I could follow this through with

the Court. When one goes to section 6, of course,

one finds a general reference to acts being:

a serious crime -

in section 6(1) -

if it was done in a part of Australia -

Similarly, in subsection (3) there is reference to a:

law in force at -

some -

time in -

some -

part of Australia -

My learned friend, Mr Charles, has made the point that in respect of any particular accused

person there is a choice of eight laws of

~Australia. Now, we submit that the operation of

the Act is more narrow than that although even were

it the case it were eight laws, we would submit

that none the less the Act would be valid.

But, if I could take the Court to the operative parts of section 13(2). Subsection (2)

says that:

where a person is charged with an offence

against this Act, then, for the purposes of:

Polyukhovich(4) 332 9/11/90

(a) determining whether a court of a State or

internal Territory has jurisdiction in

relation to the offence -

~ ~nd then if I could take the Court down to (e):

this Act has effect, in relation to an act

that is, or is alleged to be, the offence, as

if:

(e) a reference in subsection 6(3) or

section 18 to a part of Australia were a

reference to that State or Territory.

Now, we submit that the effect of this

provision is to provide that when one starts at the

point of a person being charged:  a person first

will be proceeded with in a particular

jurisdiction,	a jurisdiction of a State or
territory.	When one then has regard to the

operative provisions of the Act, in our submission,

the effect of this is that the operative parts of

section 6 - 6(1), 6(2) and 6(3) - are read down so

that one inquires not of the eight jurisdictions in

Australia but inquires of the particular State or

territory jurisdiction in which the person is being

charged for the purposes of determining the

operation of the definitions of "serious crime"

and, in particular, in respect of a serious crime

coming within section 6(3).

So, we would submit that if, for example, as

in this case the accused person is being charged in

South Australia, being his place of residence, the

inquiry is, for the purpose of section 6(3),

whether the act which was done outside Australia as

alleged would, by the law in force at that time in

South Australia, have been a serious crime by

virtue of subsection (1). So that the Act in

operation deals with one jurisdiction; not all the

eight jurisdictions.

Now, as to the choice of jurisdiction, we

would submit that it is really implicit in my

-1earned friend's submissions that if one

jurisdiction were provided by these provisions that

would be not contrary to the propositions he makes

under this head of argument.

Now, we submit that when one looks at these

provisions it is quite clear that what they are
designed to do is to ensure, we say, as a matter of
ordinary fairness to the accused, that the
proceedings are taken in the State or territory of
residence of the accused if the accused has a place

of residence within a State or territory. One

confirms that construction by going to the extracts

Polyukhovich(4) 333 9/11/90

from Hansard, at page 4588, Senate,

20 December 1988. That is towards the end of the

extracts of Hansard in the blue volume. This is

dealing with the provisions of what are now

~ection 14, dealing with objections to venue. What

is there said by Senator Tate is confirmatory that

following the Senate Standing Committee on Legal

and Constitutional Affairs inquiry in this matter,

there was concern:

that an accused person be prosecuted in the State or Territory where he or she resides.

And then about a third of the way down the

right-hand column, the Minister goes on:

There is no absolute requirement, in terms of our amendment, that proceedings be conducted

in the place of residence because the accused

may be a resident of an external territory, in

which case the local courts have no

jurisdiction, or the accused may be an

Australian citizen who has no Australian residence, as could be the case if certain

persons are deported, say, to Australia from

the United States ..... As I recall it -

he says, further down -

the Senate Committee was concerned - and I

believe Mr Temby gave a virtual undertaking on

this - that a person would be tried in the

State of his or her residence. What we have

tried to establish by this amendment is that

that should occur, but one has to take account

of the fact that an Australian citizen

deported from abroad may not have a particular

residence established in a State or Territory

of Australia.

So, it is our submission that one should

regard the provisions of section 13, dealing with

jurisdiction, as establishing the basic proposition

that a person should be prosecuted in the State or
~territory of residence if they have one.	And, we

submit that that object is confirmed by the new

provision which appears now as section 14, which

enables, one would suppose, in the cases where

there is doubt as to places of residence or

objections of venue, to come within its provisions

for the matter to be transferred to another State

or territory at the initiative of the accused.

DEANE J:  And you submit that that satisfies the requirement

of section 80 that Parliament prescribe the place

or places where the trial shall be held.

Polyukhovich(4) 334 9/11/90

MR GRIFFITH: Well, Your Honour, we submit that and the

other provisions in the Act do so, yes.

DEANE J:.: ".What is really means is that saying, "anywhere in

Australia" is sufficient prescription for the

purposes of section 80.

MR GRIFFITH: Yes, Your Honour, and what say, however,

though, this legislation is framed to say, "place

of residence if you have one" as being prescribed.

That is how it operates.

DEANE J:  What if one does not accept the construction that

section 13, read in the context of section 14, says

"place of residence"?

MR GRIFFITH: Well, Your Honour, in that case one is left

with the broader issue that one had before I made

this submission but -

DEANE J:  I was just wondering about section 80 - - -

MR GRIFFITH: Well, Your Honour, I wonder if I may wonder

further about that over the adjournment, if that is

a convenient time?

MASON CJ: Very well, we will adjourn until 2.15 pm.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Solicitor.

MR GRIFFITK: If the Court pleases, may I turn to section 80

which was raised before lunch. Our submission is

~that section 80 applies only when the offence is

committed in the State and, of course,

sub silentio, in section 80 is the assumption that

offences are only committed in one place rather

than the possibility they could be committed in one

or more places, the issue of offences committed in

several States is covered by the Judiciary Act

section 70 which provides that:

When an offence against the laws of the

Commonwealth is begun in one State or part of

the Commonwealth and completed in another, the

offender may be dealt with tried and punished

in either State or part in the same manner as

Polyukhovich(4) 335 9/11/90

if the offence had been actually and wholly

committed therein.

we would submit that in all cases Parliament may

provide where an offence may be tried in such place

or places as Parliament prescribes. In respect of
offences not committed in a State, section 70A of

the Judiciary Act provides:

The trial on indictment of an offence against

a law of the Commonwealth not committed within

any State and not being an offence to which
section 70 applies may be held in any State or

Territory.

We submit that, in this case, the offences are

offences committed overseas - that is by reference

of the definition in section 9 - but we then add

that section 11 operates to provide that a person

shall not be charged with an offence under

section 9 unless that person is an Australian

citizen or a resident in Australia. Of course,

"person" is defined more widely than that in the

definition of provisions of section 5. So that, in

our submission, the effect of this Act is to

constitute the offences as being offences committed

overseas; constituting them as offences committed

by a person who can be a person who is not an

Australian citizen or resident in Australia - that is picked up by the definition of section 5 - but there is a provision section 11 which says,

although that offence has been committed by a

person the person shall not be charged unless they

are an Australian citizen or a resident overseas.

Before lunch we made the submission that the operation of section 13(2) is to ensure that if a

person is a resident in a State or territory, then

the person will be proceeded against in a court

within the jurisdiction of that State or territory,

however the Act making provision for the cases is

State or territory by enabling any State or	appropriate where a person is not a resident of a
~territory then to have jurisdiction. It is our
submission as to whether that construction is to
the proceedings being intended to be conducted in the place of residence, if a person has a residence
in Australia is correct or not, the position still
remains that the provisions of section 13 enabling the jurisdiction of a State or territory court to
be exercised is within power and also does not
conflict with section 80.

The effect of section 13(2)(f) is that the

defendant also has the benefit of those defences

which were available at the time that a person is

charged so that section 13(2)(f) has a temporal

Polyukhovich(4) 336 9/11/90

limitation, but otherwise picks up the law of the

State where the defendant is charged. We would

suggest that this provision is a provision which

confers an additional benefit on an accused person,

oecause the ordinary position would be that a
defendant would be entitled only to rely on those

defences available at the time the act was

committed. In this case there is also an

opportunity to avail of defences at the law at the time and of the place where the person is charged,

by operation of paragraph (f).

The argument of my learned friend, Mr Charles,

that the scheme of the Act is invalid because it

permits different regimes of law, we submit, cannot
be correct. We say a law is not invalid because it
produces different results in relation to acts of

the same kind. If there were such a

constitutional inhibition it would deny the

Commonwealth ability to pick up State legislation;

State laws where there are no other Commonwealth

laws. It would, in effect, require the

Commonwealth to legislate on every conceivable

matter which might alter the result in proceedings

within the States under federal jurisdiction.

It would, we suggest, go to deny the validity

of section 79 and 80 of the Judiciary Act. Of

course, the Commonwealth could select one regime of

law or perhaps, we would suggest - and this picks

up the suggestion of Your Honours - particularly

Your Honour Justice Deane in the Breavington case -

could apply the regime of Commonwealth common laws.

We would submit that it would be perfectly

within constitutional power, for example, for the Commonwealth criminal law to provide that the law

in respect of theft in relation to Commonwealth

property was the law of the State where the
proceedings were brought or where the theft

occurred or where the person was resident and, we

submit, the result in this case is essentially, in

principle, no different .

...

We say in the absence of a Commonwealth

criminal law, the States' legal regimes continue to
apply to acts of the same quality but they may

produce different results. We say that the

Constitution does not apply to produce any

different result from that which will occur in the
event that State legal regimes do apply in respect
to the administration of Commonwealth criminal law.

This is just the ordinary consequence of the procedures and substantive operation of

Commonwealth criminal law in the federal system.

It contemplates the coexistence of different legal

Polykhovich(4) 337 9/11/90

regimes according different results to acts

otherwise of the same kind.

Here, all the Commonwealth has done is picked up State laws which operate to give the result.

The same Commonwealth law is applied in every part

of the Commonwealth although its precise incidence

may vary and we submit that that is not

unconstitutional. In fact the Constitution itself

contemplates that certain forms of discrimination

will be invalid, for example, section 51(2),

section 117, section 99. If there had been a

principle of the sort contended for by my learned

friend, section 51(2) would have been unnecessary.

We submit the Constitution does not itself provide any support for the view of the further

implication against discrimination against

residence. The only implication is an implication

which would protect the elements of Federation
itself; the sort of thing that, of course, was

vindicated in the Queensland Electricity case,

149 CLR 192, and we submit that that is not at all

relevant to the suggested implication here. Referring to Breavington, we submit that there

is nothing to Breavitigton which could lead to a

different result. That case concerned the

resolution of conflicts between the operation of

State laws. The Court differed greatly in its

reasons but nothing in the reasons, we suggest, has

application to this case directed to the
application of Commonwealth law, not the issue of

conflicts between the operation of State laws. In this case one Commonwealth law operates

throughout the Commonwealth, there is no problem of

competing State laws and we say that there is no

constitutional difficulty in the Commonwealth law

operating to pick up the certain State laws of the

States.

In this regard, we suggest that

section 13(2)(f) is not materially different from

~section 79 and, as I mentioned, section 80 of the

Judiciary Act. Section 79, of course, operates to pick up substantive, as well as procedural, laws.

I give the Court a reference to John Robertson and

Co Limited v Ferguson Transformers Pty Limited, 129

CLR 65, and Commissioner of Stamp Duties (NSW) v

Owens and Another, (1953) 88 CLR 168 to 170.

My learned friend the Director of Public Prosecutions will, on this aspect, take the Court

to its application in respect of its application of

State defences to the trial of criminal federal

offences.

Polyukhovich(4) 338 9/11/90

May I turn now to the questiori of the issue of

fair trial and its relevance to these proceedings.

We submit that the offences are, by terms of the Act, limited to crimes contrary to international

~

faw at the time they were committed. The fact, of

course, that this Act, unlike the Canadian Act,

construct the definition of those offences by

reference to municipal law concepts and to that

extent creates offences which are new offences in

municipal law in Australia, in our submission, does

not alter the characterization of the Acts as

providing for the trial and punishment in Australia

for acts which were criminal under international

law at the time they were committed.

And if I could refer the Court again to the

discussion in Brierly, which appears in volume II
of the materials, in particular at pages 254 to 255

and 258 of those volumes and also set out at

pages 144 to 146 of the transcript, on the

mechanism for adoption of municipal criminal law

and procedures to the vindication of the

international law obligation in respect of war

crimes and crimes against humanity.

We say that there is nothing in this Act to

provide other than trial in accordance with the ordinary procedures usual in criminal trials in respect of federal offences. The Act does not

inhibit or qualify common law rights to a fair

trial. Its intention is to ensure a fair trial and

if I could remind the Court in paragraph (c) of the

preamble to the Act, which says:

it is also essential in the interests of

justice that persons so accused be given a

fair trial with all the safeguards for accused

persons in trials in those courts, having
particular regard to matters such as the

gravity of the allegations and the lapse of

time since the alleged crimes.

We submit that the text of the Act is consistent

_with that intention and in particular it is

vindicated by the operation of section 13(4),

section 13(5) and section 13(6). My learned friend

suggested that the Act, in effect, was a code in

respect to the issues of abuse of process and

excluded the common law position. As to that

aspect, may I take the Court to a further reference

to the Senate debates, and that is page 4572 in the

blue volume I handed to the Court today, where

Senator Tate was referring to sections 13(4)

and (5), which were introduced as amendments in the

Senate. In the last full paragraph, in the right-hand column page 4572, he says:

Polyukhovich(4) 339 9/11/90

In relation to proposed new subsections

13(4) and 13(5), this has been a matter of

some concern to the Senate Standing Committee

on Legal and Constitutional Affairs and is a

matter of such general concern that the

Government has thought it proper to note in

the preamble that it will be in the ordinary

criminal courts of Australia that these

allegations will be tested according to all

the ordinary rules of evidence and procedure.

It is very important that that be emphasized.

For declaratory value we have set down in

proposed section 13(4)- - -

GAUDRON J: That I take it was before the amendments to the

Crimes Act, which bring in the fitness to plead issue?

MR GRIFFITH:	Yes it was, Your Honour.
GAUDRON J:	So I take it that preamble does not mean

anything in relation to that?	We cannot use the
preamble.	I mean, it may be a side issue but - - -

MR GRIFFITH:  Your Honour, we would submit it is a side

issue. The fitness to plead issue is, as we

understand it - perhaps my learned friend

Mr Weinberg can help the Court further on that -

that is a South Australian law which would apply to

all criminal proceedings in that State.

GAUDRON J:  No.

MR GRIFFITH: I am sorry, in that case, Your Honour, I am

grateful for Your Honour's response and I will

vacate the field entirely if I may leave it to my

learned friend, Mr Weinberg.

GAUDRON J: Well, it points up - I doubt that it is

necessary - just points up the, really,

inconsequentiality of the preamble, does it not

and, more particularly, with the Hansard debate?

-

MR GRIFFITH: Well, Your Honour, we say it is not

inconsequential at all, that it does explain the
operation of the criminal procedures so far as the

provisions under this Act are concerned for a fair

trial. The provisions Your Honour refers to in no

way are under attack in this litigation.	We are
concerned with the trial itself, not the

circumstances if a person is unfit for trial. It

is an entirely different issue and, of course,

there are various legislative solutions to that

issue. One is to take no proceeding; one is to

lock the accused up until they are ready to be

tried if ever; laws can vary as to that.

Polyukhovich(4) 340 9/11/90

In any event, Your Honour, on the submission

that it is relevant on the issues before the Court,

Senator Tate then goes on to confirm in the

±eft-Pand paragraph:

That inherent power of the judiciary to ensure

that the court and trial processes are not

abused in a way which is prejudicial to an

accused person is a very important

constitutional safeguard within our system of

recognizing that the judiciary is independent

of the Executive and of Parliament. We are

emphasizing that inherent capacity of the

court, declaring it, and ensuring, therefore,

that there can be no misunderstanding on the

part of anyone that it is Parliament's
intention that that very valuable capacity be

retained.

And then he refers further to the provisions

suggested by the opposition.

We submit that the courts have ample, inherent

or implied power to prevent their processes from
being used in a manner which gives rise to

injustice and that jurisdiction is exercised on a

case - - -

McHUGH J: Except, Mr Solicitor, at page 4573 it would seem

to indicate that the senator thought that

section 13(5) was, in effect, stating the law on

abuse of process.

MR GRIFFITH:  Your Honour, firstly the words have to speak

for them.selves. The preceding paragraph I referred

to, Your Honour, made it quite clear that the

inherent power is being retained to its fullest

extent, and we would submit, Your Honour, that the

words of section 13(4)(b) make that quite clear, as

do (a) in respect of the application of the normal

rules of evidence and procedure; as does

subsection (6) of that section.
-·	So that if Your Honour detects from that

extract that you referred to there that there is a

suggestion that it is all wrapped up in subsection

(5), we would say that plain words must be

construed to confirm the broad statement. In any

event, Your Honour, we would submit that that must

be regarded as the meaning and operation of

subsection (5).

Subsection (5) is concerned with a narrow

issue of difficulties in obtaining evidence, and it

makes provision in a way which is protective of the

accused's interest in that circumstance. But it is

clear, Your Honour, both from the express words of

Polyukhovich(4) 341 9/11/90

the statute, and we submit confirmed by the

extracts I have just read, that the complete power

of the court to deal on a case-by-case basis with

.i,.:psues which go to, as they are often called, abuse

of process or injustice, is embraced and confirmed

rather than excluded.

Perhaps I should point out, Your Honour, that

of course this debate occurred in 1988 which was

before the decision of this Court in Jago, so that

Jago gives a convenient articulation of what we

submit is the process of consideration by a court
on a case-by-case basis in cases of alleged

injustice or abuse of process where the issue is,

we submit, whether or not it must be the case that

the accused necessarily will not get a fair trial,

and that must have regard to the particular

circumstances.

Now, it is our submission, Your Honour, that

the Act makes it abundantly clear that those
matters remain completely open for application

pursuant to the ordinary procedures and

jurisdiction of the Court, notwithstanding that

subsection (5) has a particular provision dealing

with a matter which naturally might be regarded as

relevant difficulties in obtaining evidence because

of the lapse of time or other reasons.

Our submission is identification of what may

or may not constitute injustice will depend on the

facts of the case. We submit that in no case is

delay, even of 50 years, in itself something which

must be regarded ex facie.

McHUGH J: Well, supposing a defendant is suffering from

Alzheimer's disease? Subsection (5) does not seem

to apply.

MR GRIFFITH:  Your Honour, in that case the common law

jurisdiction would apply.	The inquiry is, "Would
it follow from these circumstances having regard to

all the factors, including the fact that we are

.	..dealing with matters which occurred overseas, which
occurred upwards of 50 years ago and the fact that the accused is not in the position to take any

effective part in the trial." There might be an

issue of capacity there, of course, too,

Your Honour, but assuming there was not, we would

submit, Your Honour, that that factor would be one
to be weighed and probably weighed heavily by the

Court in concluding that it must follow that in the

circumstances it would necessarily be the case that

the accused would not be able to get a fair trial

and that would provide the requisite basis to find

the relevant injustice or abuse of process, however

one articulates the principle.

Polyukhovich(4) 342 9/11/90

But the submission we make, Your Honour, is

that 50 years, in itself, does not make any

difference at all. There may be cases,

your Honour, if one was dealing with a complicated

commercial fraud where one looked at the papers

involved in the charge and the indictments and say,

ttLooking at this, it must be the case that after,

say, 15 years there will be an injustice because of the effluxion of time.tt but that is on the basis of the particular circumstances.

In this case, Your Honour, it has been suggested that, for example, an identification must

be regarded as a problem which will lie at the

heart of all war crimes. Our submission is,

Your Honour, that no assumption should be made as

to that. The point has already been made to the

Court that it may be that there is no issue of

identification, there might be a confession. There

might be, Your Honour, for example, evidence of

friends and relatives who have no doubt to the identify of the accused and whose evidence, if accepted, will be accepted as first hand witness
evidence of these events, just as it might be accepted were there to be proceedings against

someone, for example, of the serious crime of

murder 50 years after the event.

If there had been a murder committed,

Your Honour, in 1941 in Sydney, with one soldier

perhaps killing another and there was credible

evidence of identification as to the exact

circumstances and no issue of identification

arising, we submit, Your Honour, that one would

have no basis to say, ttWell, the effluxion of time

puts such a shadow over the proceedings that it

must necessarily follow that the proceedings are

unfair.tt

MASON CJ:  Mr Solicitor, the first quote that one sees,

first column, page 4573, five lines down:

for the removal of doubt -

where does that come from?

MR GRIFFITH: For the removal of doubt?

MASON CJ: Yes, see line 5, first column page 4573 - the six

lines there - they were a provision of some kind,

but what provision?

MR GRIFFITH:  Your Honour, I must say as I read this

extract, I had doubt as to what it referred to and

I do not think that I read it out, but it seems to

be up in the air. It might be that it is a textual

error in Hansard, but - - -

Polyukhovich(4) 343 9/11/90

MASON CJ: It is a fairly substantial textual error, if it

is.

MR GRifFITH: Well, Your Honour, they happen.

MASON CJ: It looks as if it was a draft of some kind, but

where does -

MR GRIFFITH:  It does look like that. Your Honour, could we

make inquiries and inform the Court in writing as

to what the position is?

MASON CJ: Yes.

MR GRIFFITH:  I am able to inform the Court the position as

to the typographical error for ..... and I will do
that in due course, but as to that one,

Your Honour, if we may pick it up and inform the

Court about it.

TOOHEY J: It is not likely to be a typographical error in

relation to subsection (4), is it? Subsection (4) is the section to which it appears to be directed.

It may have become omitted in some way or other.

MR GRIFFITH: Yes, we will have to explain it, Your Honour,

because page 4572 right-hand column they set out

subclause (4) as it is.

McHUGH J: It seems more likely that the hansard reporter

has made a mistake and thought that the Senator was

quoting. That is probably his summary.

MR GRIFFITH:  It would seem that, Your Honour, but may we

make inquiries and do our best to inform the Court.

I was not sure what it was and I did not intend to

rely on that phrase. It may be the case on one

view, if one ignored the quotation indent and just

read it as being the Senator's summary of

subsection (4), which is fully set out - - -

TOOHEY J: That is possible.

MR GRIFF!TH: - - - one gets the thrust of it. It is

pointed out to me, Your Honours, that it is not the

words one would have in a draft of a provision.

MASON CJ:  No.

MR GRIFFITH: It may be, if the Court pleases, that we can

go no further than ask the Minister himself what

the position is. I do not know whether the Court

would wish to be informed of his response.

MASON CJ:  No.

TOOHEY J: Well, unless it is in the explanatory memorandum.

Polyukhovich(4) 344 9/11/90

MR GRIFFITH: If it is in a document we would, Your Honour,

but if it a matter of the Minister now saying what

he intended, perhaps we would be better off not to

trouble the Court with that. ~

MASON CJ: Yes.

MR GRIFFITH: It does seem to give it meaning, but I am

sorry that we did not pick that up earlier so that

we could make inquiries before referring to this

transcript. One problem about this Senate debate

is that it is really a bit like finding a quotation

from Dante's Inferno; one can go through and keep

picking up something here or there that is useful.

Of course with the prospect that then one's

opponent picks up something there and somewhere

else, that it goes a bit against you, such as the

Attorney-General's remark.

Another example of this: the Court will

remember that I referred to the explanatory

statement containing the statement that it will not

be necessary for the Court to consider whether or

not the matter is a crime at international law.

Now, I did say to the Court that did not seem to be

right, but one way of making it literary right is

to substitute "jury" for "court" and get a

satisfactory application of that provision, but it

is probably not necessary for the Court to extend

that far in reconstruing the statements in the

supplementary materials which are, after all, only

in aid to discerning the meaning of the legislation

itself.

But the point that we do make on this issue of

delay is that in domestic law dealing with serious offences, delay itself is not something which must

constitute a situation where, necessarily, there

cannot be a fair trial where there be injustice.

We say, in the same way, delay itself cannot operate under the War Crimes Act, so if my friend says there is an implication that delay itself is

not sufficient, we say that does not imply anything

_.wnich is different from the position under domestic

law. It depends on all the circumstances,

including the circumstance that it is 50 years

after the events. But the courts have ample powers

to determine whether in the particular case there

is a requisite abuse of process or injustice on a

discretionary basis to preclude that a trial

necessarily will be unfair so as, as has been

expressed by members of this Court, to have the
necessary result that a conviction would bring the

administration of justice into disrepute. If it

can be said the trial would be unfairly oppressive

or constitute an abuse of process then the Court

can order a stay for that reason just as if it may

Polyukhovich(4) 345 9/11/90

order a stay under subsection (5) if the particular

reasons do - - -

GAUDRO~J~~ Is this not all a little bit artificial. This

is all being done in the context of a trial - all

these arguments are being made in the context of a

trial. The facts are, as it is, that a trial has

not commenced, no indictment has been presented and

on one view of the probabilities may never be but

all sorts of other consequences will follow.

MR GRIFFITH:	Your Honour, we say, as my learned friend pointed out, there must be a committal in
proceedings under this Act so that the - - -
GAUDRON J:	No, you see that is
MR GRIFFITH:	Your Honour says no?
GAUDRON J:	- - - that is an assumption that has been made

in terms of the Act as it stood and - - -

MR GRIFFITH: Yes. Well, if Your Honour is relying upon the

proceedings dealing with fitness to plead - - -

GAUDRON J: Yes.

MR GRIFFITH:	- - - now, we say they are not at issue before the Court so we would submit, Your Honour, that
they have not been relied upon as making out a case
for injustice, inability to have a fair trial, and
we would say it is not appropriate for the Court to
have regard to those provisions which became
relevant in the stay application before
Your Honour, from the point of view of
characterizing whether or not what is provided in
the Act itself is a fair trial.

But, Your Honour, as I have demonstrated in my

lack of familiarity with this new legislation, may

I confirm that my learned friend and I are anxious

not each to cover ground covered by each other and let my learned friend address Your Honour's worries

-on that point other than to confirm what I have

just said that would be our position as to the

nature of the challenge to this legislation.

I am indebted to my learned friend who refers

me to volume III of the materials which were

originally before the Court, page 202, the amended
explanatory memorandum which provides, in the third

paragraph, on page 10 of the explanatory

memorandum:

Proposed subsection 13(4) states, for the

removal of doubt, that the normal rules of

evidence and procedure applicable to

Polyukhovich(4) 346 9/11/90

Commonwealth offences apply to proceedings for

an offence created under the Bill and that

courts hearing such cases are able to exercise

all their powers including powers to prevent

an abuse of process.

Perhaps that is a case of all pointers seeming to

point in the same direction.

What we do say is that it cannot be assumed

that identification is an issue in this case. It

depends on the particular circumstances and there

is no suggestion before the Court that there is a

possibility here of prejudice because of a problem

of identification. If there were, we submit that

would be one of the ingredients to be made the

subject-matter of an application for a stay.

My learned friend, Mr Weinberg, has pointed out that there is no special provisions in this Act

providing for obvious difficulties which one can see arising on issues of committal, gathering of evidence, the giving of evidence; the ordinary

procedures apply except there seems to be a

restriction, as he pointed out, on his capacity to

make an ex officio indictment.

We have submitted that section 17(4) is not a

reverse onus of proof provision and the way, of

course, we approach section 17 is to take the view

that it has the effect of confirming the

construction of section 7, that it goes no further

than offences which are covered within the

description of war crimes or crimes against

humanity. But, if I may indicate to the Court that

having touched on section 17 because that is

referred to as one of the matters by my learned

friend in relying upon saying that there are issues

which go to unfairness, that is a matter where my

learned friend, Mr Weinberg, and I agreed would be

more conveniently dealt with by one voice alone

which will secure that there is only view put

before the Court as to those difficult issues of

-construction.

We submit that none of the references to

possible implied constitutional guarantees, which

my learned friend makes in paragraphs 12 or 13 of

his supplemental contentions, is apposite. It

would be one thing if war crimes legislation

excluded the possibility of fair trial for a

criminal, as my learned friend, Mr Mason, put to -

to providing for a statutory attainder to be

confirmed by the courts.

We say in this case the legislation merely

enables it possible to proceed with prosecutions

Polyukhovich(4) 347 9/11/90

for the serious and unusual crimes defined by the

Act in a way that picks up and supplements, we say,

for the benefit of the accused, rather than

excluding any common law protection available to

the accused, to ensure that the accused does have a

fair trial and we would say that this would be

confirmed by our contention that it is possible for the plaintiff at any time to make application under

the common law principles, whether also application

is made under section 13(5) or not, for a stay on

the grounds that in the particular circumstances it

necessarily will be the case that the accused

cannot obtain a fair trial.

We submit there is no relevant restriction to

be implied from Chapter III of the Constitution.

There is no basis for implying an ex post facto

clause or guarantee of due process of the kind

found in the United States Constitution, Article 1,

section 10. Even if there were any ground for such

implications we submit that they would not affect

this Act's validity. In Demanjuk the United States

Court held that Israeli statute allowing the

prosecution of a Nazi war criminal was not an ex
post facto law. This is seen in volume II page 107

and following of materials.

The operation of the ex post facto clause in

this regard has become a matter of debate, and if I

could refer the Court also to the Wagner case,

volume III page 74 and 75 of the materials.	The
United States Supreme Court has declined to

validate a statute on the grounds of retroactivity

alone. Of course, the Court, amongst other

matters, will consider the strength of public

interest involved in such issues, but in our

contention, they have no relevance in considering the constitutional position of this Act under our Constitution.

I have mentioned in passing the possibility of

severance if necessary, but our general submission

is that it is clear from the operation of the Act

~that the rights and duties which it affects and the

powers which it gives is intended to make

indictable offences that which is known as war

crimes, or crimes against humanity in international

law. To the extent that it may be that the Court

could construe the method of approaches going

beyond that point, in our submission, if the Act

otherwise was regarded as invalid to that extent,

it should be read down in accordance with

section 15A. This would not entail giving the Act

any different meaning from that which it is

intended to have.

Polyukhovich(4) 348 9/11/90

Could I come back to the matter raised by

Your Honour Justice McHugh, whether the "or" was an

"of" in section 8(2). Your Honour, I would

indicate firstly that one explanation for this

provision might be that it also was a provision

which was introduced by way of amendment in the

parliamentary processes. That is picked up by the

volume of materials that I handed this morning -

the Director of Public Prosecutions further

materials. In the War Crimes Amendment Act, as

printed under tag 1, one finds the original version

of section 8 confined to two subsections which do

not embrace what is now subsection (2). That was

amended to introduce the extended form and one

picks that up in third page of the document under

tag 3, where the amendments were introduced.

The explanation of that - the relevant pages

of Hansard are page 4452 and following,

19 December 1988, which are not with the Court - if

I could undertake to the Court to hand them up during the course of today - and Senator Tate at

page 4552 said:

The Government is an amendment which has been

known to the Honourable Senators for a long

time. The amendment arises out of the

Government's response to the Senate Standing
Committee report which wished to make it clear

that section 7(1) and 7(3) ought to be read

disjunctively. In addition, since we have

recently passed an amendment to deal with the

otherwise possible problem of duplicitous

indictment, we have added a proposed

subsection (4), which is a consequential

amendment on the matter we have just dealt

with regarding duplicitous indictments. The

intention of the amendment is to respond to

Senate Committee's report -

and perhaps there is no need to hand the Court any

further Hansard reference because that seems to

read in what is relevant.

-·

The word "of" was correctly stated as "or" in

the text of the amendment introduced into the
Senate, and that appears in the Journals of the
Senate, 19 December 1988 at page 1339, and in the
Votes and Proceedings of the House of

Representatives, 21 December at pages 1007 and

1011.

However, in the text of the Act as it received

Royal Assent the error appeared, so that the

printed version does represent accurately the

version to which Assent was given. It would seem,

therefore, a mistake was made in compiling the

Polyukhovich(4) 349 9/11/90

document that the clerk certified as the bill

passed by both Houses and ready for Royal Assent.

In that context there seems to be no difficulty for

----- the Court to read the "of" as disjunctive "or".

If I could indicate to the Court that I

understand that both my learned friends - and I do

not speak for the Solicitor-General of New South

Wales - but both Mr Charles and Mr Weinberg are

agreed in this matter, that there should be no

order for costs, and we also agree with that

course. If the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Weinberg.

MR WEINBERG:  If the Court pleases, could we hand to the

Court an outline of our written reply in relation to these matters.

MASON CJ: 

Thank you.

MR WEINBERG: 

If the Court pleases, to avoid any duplication

of the submissions that have already been put to
the Court by the learned Solicitor, we will simply

adopt his submissions and refer only to points of

construction.

We have structured our reply by identifying

four sections of the War Crimes Amendment Act which

we believe require further elaboration in reply.

They are section 7, 17, section 13(2)(f) and

sections 13(4) and (5).

So far as the first point dealing with

section 7 is concerned, my learned friend,

Mr Charles, argued, as we understood his

submissions, that the War Crimes Amendment Act

could not, upon its proper construction, be

supported by the external affairs power in so far

as externality was the basis for that support

because on one view of the Act could conceivably

apply to crimes or war crimes committed even within
....	Australia .

We would submit to the Court that upon its

proper construction the Act should not be so read

and that the Act upon its proper construction is

confined to war crimes committed in Europe in the

European theatre of war.

McHUGH J:	What about 7(l)(c) and 7(l)(d)?
MR WEINBERG:	Your Honour, the matters that we would point

to in support of our submission are the definition

of "war" and the definition of "occupation" which

appear in section 5 which are words common to both

7(l)(c) and 7(1)(d). We have identified the

Polyukhovich(4) 350 9/11/90

preamble itself as indicating a legislative intent

to confine the Act to war crimes committed in the

European theatre of war.

-

McHUGH~J:  Having regard to the terms of section 6(1), what

is there to stop a prosecution for crimes specified
in 6(1) committed in Australia for the purpose of
pursuing a policy associated with the conduct of

the war or on behalf of Germany, or in the

interests of Germany?

MR WEINBERG:  Your Honour, read in its broadest way, there

would be nothing to stop that prosecution brought

under those particular heads to achieve those

particular purposes, but we say there are

sufficient legislative indications that that was

not what the Parliament intended to enact to enable
this Court, if it be necessary to do so, to read

down those particular provisions properly in

accordance with section 15A.

McHUGH J:  What about section 8(2) together with the terms

of section 6(1) itself?

MR WEINBERG:  Your Honour, we see nothing in section 8(2)

which causes us to alter our submission.

McHUGH J: It seems to indicate that you can have a serious

crime committed in Australia.

MR WEINBERG:  Your Honour, we submit, with respect, that

that cannot be so because although the subsection

has identified 6(1), 6(3), 6(4) and 6(5),one goes

to section 6(3),the limiting condition:

An act is a serious crime if:

and we would submit, as the learned Solicitor did, the words ought to be read as "had it been done at

a particular time outside Australia" and the law in
force at that time in some part of Australia

indicate a plain intent on the part of the

Parliament that the conduct in question must have

•. taken place outside Australia.

BRENNAN J:  How does that accord with section 18(l)(b)?

MR WEINBERG: Section 18(l)(b), Your Honour? Your Honour

focuses upon the word "was"?

BRENNAN J:  The dichotomy between "was" or "would have

been".

MR WEINBERG:  The explanation may be, simply, that that was

left over from the original drafting of the Bill,

Your Honour. If we could take the Court to the

Polyukhovich(4) 351 9/11/90

legislative history an explanation may appear from

that because - - -

BRENNAN J: Those are the terms of the statute. Whatever

its history may have been those are the terms of

the statute.

MR WEINBERG:	We are talking about the use of section 15A, Your Honour, to give effect to the legislative
intent and, in our submission, if one can through a
history of the legislature itself determine that
that word "was" is simply a left over which cannot
stand with the legislative intent as manifested by
the Act in its final form then, in our submission,
it should be read down to omit the word "was".
If the word "was" gives rise to constitutional invalidity then, in our submission, with respect,
"was" ought to be read out of the Act, and if we could take the Court to the legislative history, we submit it will become apparent that that must be
right .
DAWSON J:	The legislative history cannot prevail against the words of the Act. It is entirely consistent
all the way through.  It is consistent with the
differences between 6(1) and 6(3), it is consistent
with section 7, it is consistent with section
18 ( 1 ) ( b )  and 8 ( 2 ) .
MR WEINBERG:	What has happened, Your Honour, in our

submission, is this: that the Act in its original
form was intended to apply to war crimes in

Australia or committed in Australia and one gets

that, if one goes to the volume which was handed to

the Court this morning, quite simply from the

definition of "war". The definition of "war"

appears at the bottom of page 2 and the top of

page 3 in indent 1 of the materials that we handed

to the Court. Now, the bill, when it passed the

House of Representatives the first time in 1987

provided that "war" meant:
..	in the period beginning on 1 September 1939 and ending on 29 October 1945; and
(e) in Europe, the Atlantic, Northern Africa,
the Middle East, Asia or the Pacific (including New Guinea and Northern Australia).

Perhaps I should not have said "Australia", but

"Northern Australia" was defined as a place where a

war crime could have been committed. And all of

the remaining provisions in the Act were plainly,

in our submission, geared to the concept that the

Act would include conduct within Australia as being

a war crime or, potentially a war crime.

Polyukhovich(4) 352 9/11/90

One finds support for that, plainly, in the

original version of the explanatory memorandum

which appears in indent 2 at page 2 and that

provides in the very first paragraph of the general

outline that the:

Bill amends the War Crimes Act 1945 to provide for the prosecution of Australian citizens or

persons resident in Australia alleged to have

committed war crimes. The amendments will

apply the Act to war crimes committed in the
course of the World War 2, whether in

Australia or overseas, by any person.

Now, the bill was passed by the House of consequential provisions including the provisions

that Your Honours have drawn attention to.

What happened in the Senate was that as a

result of the debate, that definition of "war'' was

completely altered; a new preamble was inserted

into the Act and it was made perfectly plain

throughout the entire debate, every senator who

spoke on the subject and addressed the point

recognized that the purpose of the amendment was to

ensure that the Act was confined to war crimes

committed in the European theatre of war.

TOOHEY J: But that does not really answer the question,

does it, Mr Weinberg? I mean, that perhaps can be

taken for granted but the purpose of the amendment

was to identify the "war" as being the war in

Europe as opposed to the war in the Pacific?

MR WEINBERG:  No, Your Honour, to confine the acts that

could be the subject of charges under this Act as

acts committed in the European theatre of war.

TOOHEY J:  I did not think you had put it quite that way

before. Perhaps you did.

MR WEINBERG:  I am sorry, Your Honour, if I had not.

-·

TOOHEY J: There is obviously a big difference between the

two.

MR WEINBERG:  Yes, Your Honour. What we submit is that as a

result of the debate - and the debate makes this

perfectly plain - there was concern about the

prosecution of Australian ex-servicemen who might

have committed acts in the Pacific, matters of that

kind, and a decision was taken to accept an

amendment which limited the operation of the Act to

war crimes committed in Europe, the European

theatre of war, and that was the reason and the

explanation given by the Minister, Senator Tate,

Polyukhovich(4) 353 9/11/90

when accepting the amendment. That was what was

spoken to by every member who spoke in the debate

as being the effect of the amendment.	It was
certainly common ground.	We have identified in

(iv) of our submissions on page 2 passages in

Hansard where a variety of different senators who

spoke to the legislation said, in effect, that the

bill now confines its operation to war crimes

committed in the European theatre of war.

McHUGH J:  Yes, but this Court said in Beane's case that

you cannot disregard the text and give effect to

what the Minister said or what -

MR WEINBERG:  Your Honours, we understand that, but what we

are submitting is that one has to firstly determine

what the construction of the Act is and in the

course of doing that one is entitled to have regard
to certain materials and those materials, in the
case of ambiguity at least, permit one to have

regard to such matters as the preamble, the

explanatory memorandum, which Your Honours will

note in its final form, after the Senate amendments
had been agreed to, was recast, and that appears in

volume 3 at page 193 of the materials, was in a

different form, because the general outline,

paragraph 1 now says, in the second sentence:

The amendments will apply the Act to war

crimes committed in the course of the World

War 2 in Europe by any person.

Now, it was plainly, in our submission, understood

by all who had accepted the amendments and voted upon the amendments, the Act was now confined in its operation to war crimes committed in Europe.

BRENNAN J:	Is that submission based entirely on the proposition that this is a case to which
section 15AB applies?

MR WEINBERG:  Yes, it is, Your Honour. If there is a

difficulty because somebody has left the word or

. .-words "was" in two consequential sections far

removed from these earlier provisions, our

submission would be that those words ought to be

severed from the Act in order to give the Act

validity in accordance with - - -

McHUGH J: But it is not merely "was", Mr Weinberg, it is

the very form of section 6(1) itself, together with

section 7 and section 8(2).

MR WEINBERG:	Your Honours, we say that you cannot take
Polyukhovich(4)	9/11/90
McHUGH J:	You have got to do a lot of surgery on this Act.

The Solicitor-General wants us to read residency

into it and - - -

MR WETNBERG:	Your Honours, all we are asking is that one have regard to, not just section 6(1) in isolation,
because one cannot treat section 6(1) as stating
the totality of the elements of a war crime; one
must have regard to 6(1) and 7, 7(1) and 8 and 9 and the Act in its entirety and one must read these
sections in the context of the Act as a whole and,
in our submission, if there are two "was" in the
Act which should not be there, that is the first
point, then those two "was"s should be "were not"s,
removed or severed, if that be the appropriate way
of putting it. It is plain, in our submission,
what has happened. Parliament has decided to
restrict the scope of the Act to war crimes
committed in Europe, but there are some
infelicities of drafting which are left over from an earlier time when the Act was intended to apply
to Australia.  Now we cannot do any more than
explain those "was"s on the basis of what happened
as a result of the last-minute Senate amendments
and it must be recalled that the Act went through
the Senate and was back in the House of Representatives and approved the next day, as I
recall the legislative history. These provisions
were drafted with very great haste and put into the
Act almost on the run, one might say, if one reads
the Hansard debates.
DAWSON J:	So you are asking us to read section 6(1) as, "An

Act is a serious crime, if had it been done in a

part of Australia, it would have been.

MR WEINBERG:  Yes, precisely, Your Honour, and in so far as

there is a difficulty with "was" in section 18(2)

and we understand the difficulty, we are asking the

Court to sever the word "was", if that will lead to constitutional validity, because it will not do any

violation to the plain legislative intent of the

Parliament and we have given the Court what we
•	. submit is a fair explanation of how that word comes
to be there. The point we would also make is that

counsel for the plaintiff at transcript 214

conceded that the construction which we contend for

is a possible construction of the Act and, having

made that concession, in our submission, that

necessarily involves a concession that the Act is

at worst ambiguous and if so we are entitled, with

respect, to invite the Court to have regard to the

legislative history and the Hansard and the various

matters that we have called attention to.

BRENNAN J:  Mr Weinberg, I am not sure that I understand

precisely what the submission is founded on. Is it

Polyukhovich(4) 355 9/11/90

founded on the proposition that the text of the Act

as it stands is ambiguous so as to warrant the

Court's reference to this material or is it that

~e text of the Act, though unambiguous, is an

e-xcessive legislative power and should be read down

under lSA?

MR WEINBERG: It is put in the alternative, Your Honour. In

either event the Court should have regard to this

additional material and what we submit is that we

do concede that, for the purpose of subsection (3),

the words, "it was done at a particular time", are,

at best inelegant. This is an alternative

construction of those words which would have been

grammatically correct and in keeping with the

manifest intention of Parliament which is the

construction which we have advanced which is

simply, "had it been done outside Australia".

BRENNAN J:  The difficulty with the argument as I see it is

that reference to the extrinsic material is

unnecessary unless there be an ambiguity and is

inappropriate if there is none and is unnecessary

if there is an excess of constitutional - - -

MR WEINBERG:  Your Honours, we submit that the Court is more

readily able to have regard to this kind of

material when considering constitutional validity
than perhaps in the case of questions of
construction of an ordinary statute and what we

are, in fact, dealing with here is the question of

constitutional validity. It is, in our submission,
perfectly proper for the Court to have regard to
the legislative history. It is, in our submission,

perfectly proper for the Court to have regard to

what every senator thought the effect of these

specific amendment were when they were introduced

and to have regard to the explanatory memorandum,

particularly given the concession made by my

learned friend, that the construction that we are

contending for is a possible construction, though

not one - - -

BRENNAN~= From section lSA and lSAB? Is there any

authority for that submission which would support

reference to those materials?

MR WEINBERG:  On the basic questions of constitutional interpretation, Your Honour? No, Your Honour, I

cannot assist the Court but, in our submission, if

the Court is concerned with ascertaining whether

the legislation is constitutionally valid, the
Court is required under the Acts Interpretation

Act, given the conditions that are met under that

section, to read the Act in a particular way if it

can be so read and we submit it can.

Polyukhovich(4)	356	9/11/90
McHUGH	J:	We have under reserve judgment at the moment a

case called Saraswoti where there is a not

dissimilar problem and the applicant relies on the

L--	minister's second reading speech, in effect, to say
that the text of the Act was never intended to be
given its literal meaning but had a much narrower
meaning.

MR WEINBERG:  I am grateful for that, Your Honour, but we

also say that this argument, of course, is

predicated upon the proposition that the only way

the Act can be sustained is by externality.	If we
are wrong about that and the Act actually does

apply to war crimes committed in Australia, then,

in our submission, that might affect the

externality argument but it has no effect whatever,

in our submission, regarding the other basis upon

which we submit there is constitutional validity.

The next point that we desire to refer the

Court to, in paragraph 2 of our submissions, is nothing more than a repetition of submissions that

have previously been made about the construction of

section 7(1) and 7(3) and we will not take the

Court through that again. We have made the same

point about genocide as the learned Solicitor has

at page 3 and we have dealt with paragraph 3.

If we go to section 17 of the Act we desire to

say very little other than to refine the
submissions that we previously made about

section 17. We have noted that section 17, in our

submission, has the effect in conjunction with

section 7 of ensuring that no person can be

convicted of an offence under this Act unless his

conduct would have amounted to an offence under international law, would have been either a war

crime or a crime against humanity. We have

identified on page 5 the comment in the explanatory

memorandum about Australian courts not being

required to apply international law to determine

whether a war crime has been committed. In our

submission, that is either erroneous or must be

~taken to refer to Australian juries who, after all,

determine whether a war crime has been committed

and we point to the first part of the sentence, in
any event, which says that for purposes of the

explanatory memorandum acts that satisfy these

tests will be war crimes of international law.

We note in relation to section 17(4) that

nothing in that section, in our submission, impedes

or prevents a defendant's right to move to quash an

indictment or to submit that there is no case to

answer. It is our submission that if those basic

rights of an accused person to, in effect, demur to

an indictment at the outset of a trial or to submit

Polyukhovich(4) 357 9/11/90

without going into evidence that there is no case
to answer were intended to be taken from him one

would expected clearer language than that which

~ppears in section 17(4) to achieve that particular

goal. And what we have done is simply to amplify

our earlier submissions that what section 17(4) is
designed to do is to deal with those defences which
can be described as confess and avoid defences as

distinct from demurrer or motion to quash defences.

We say there is nothing unusual about that

construction of section 17. We point to two analogies although they are not precise, one

appears in paragraph 6, on page 6 of our

submissions, that Your Honour the Chief Justice and

His Honour Justice Dawson observed in Thompsons's

case:

"Proof of jurisdiction -

in criminal matters is regarded as -

a pre-requisite of guilt but otherwise it is

not an element in proof of the commission of

the offence except in those cases in which the offence is so defined that commission of it in

a place or locality is made an element of the

offence charged.

And what we would say is, there is an analogy between the requirement that it be demonstrated

that the conduct in question be a crime under

international law and have been a crime under

international law at the relevant time and the

requirement that there be proof of jurisdiction.

Neither is an element of a crime but both are a

pre-requisite to guilt which is the language that

we would seek to adopt.

We draw another analogy with the requirement

of double criminality and extradition proceedings.

Before a person can be extradited from this country

to another country in respect of criminality

~committed overseas the tribunal must be satisfied

that the conduct in question amounted to an offence

not only under that foreign system of law but also

under the domestic regime and we say that

section 17 applies in a similar manner. Before a

person can be convicted of an offence under the Act

it must be demonstrated that the conduct in

question not only would fit the description of a serious crime and a war crime set out in the Act itself in sections 6 and 7 but also would have

amounted to a crime under international law under

section 17. So, the analogy is with the invocation

of a separate regime of law as being something

Polyukhovich(4) 358 9/11/90

which must be demonstrated to exist before legal

consequences can flow.

We move then to section 13(2)(f). Submissions

have been advanced to the Court about that and

about the way in which section 13(2)(f) operates in

a similar manner to sections 79 and 80 of

the Judiciary Act, and we have set out our argument

in some detail on page 7.

There are two decisions additional to those

that the Court has already been referred to that we

would simply draw to the Court's attention. They

are set out at page 8 of our submissions - the

first of them, Reg v Drury, (1984) 1 Qd R 356. In

that case the Supreme Court of Queensland, the Full

Court, held that the provisions of the Queensland

Criminal Code which at that time required that

there be corroboration of an accomplice before a

person could be convicted on an accomplice's

evidence, applied in a trial for offences under a

Commonwealth Customs Act.

Now, that simply demonstrates, in our

respectful submission, that even though the trial

was being conducted in Queensland, and even though

that provision was unique to Queensland law, that

provision applied in a manner which would lead to a

different result for a Commonwealth trial in

Queensland than it would in any other State. In

our submission, that is the result of the operation

of sections 79 and 80 of the Judiciary Act, and is

in accordance with constitutional principle.

Similarly in Osborne v Goddard,

(1978) 18 SASR 481, it was held by the South

Australian Court of Criminal Appeal that in a prosecution for a Commonwealth offence, a South Australian statutory defence of marital coercion applied in respect of the Commonwealth offence. It

was picked up and applied by sections 79 and 80 of

the Judiciary Act.

Now, that is an illustration, we would say, of

a statute-based defence in a State being picked up

and applying to a Commonwealth prosecution. It

means that, in effect, the results of the case

could have been different in South Australia given

that the law on marital coercion could have been

different to that which applied in other States;

but that did not mean that it was not effectively

picked up.

Could we, in support of our submission about

Drury's case and Osborne v Goddard being correctly

decided, hand to the Court copies of the first five

Polyukhovich(4) 359 9/11/90

pages of the Review of Commonwealth Criminal Law
prepared by Sir Harry Gibbs - Interim Report,

Principles of Criminal Responsibility and Other

¥atters - where the learned authors of that report

go through these precise questions of how

sections 79 and 80 of the Judiciary Act pick up and

apply differing principles of criminal

responsibility and defences to Commonwealth

offences in different States. The point is

particularly clearly made at page 14 in
paragraph 3.10 where dealing with the question of

whether the principles of criminal responsibility

in force under the law of the State or territory in

which the case is tried should be tried, it said:

This might mean that a person charged with an

offence under Commonwealth law would be

entitled to be acquitted in one State for a
reason (e.g. that he was in a state of

self-induced intoxication or was acting under

an honest but unreasonable mistake) that would

not affect his guilt in another State. These questions are discussed further in subsequent chapters.

If one goes back to the earlier part of the

chapter, one will find the assertion made by the

learned authors of the report that so far as

Commonwealth criminal law is concerned, principles

of criminal responsibility are either contained in
a limited degree in the statutes of the

Commonwealth themselves, or alternatively, they are

picked up and applied by section 4 of the

Commonwealth Crimes Act which applies only to

offences under the Commonwealth Crimes Act and
requires that the principles of common law apply to
those offences absent other inconsistent
provisions, and in relation to offences under
legislation other than the Commonwealth Crimes Act

it is the Judiciary Act, sections 79 and 80, which

have that effect.

So, for example, the Commonwealth has no

~general law of insanity; it picks up the law of

insanity as it applies on a State-by-State basis.

It may be that the State has enacted its own State

law on insanity by statute. Section 79 and 80

would involve picking up that State's statutory law

in respect of all crimes other than those charged
under the Crimes Act. If the offences are charged
under the Crimes Act, section 4 of the Crimes Act,

requires that the matters such as defences and

principles of criminal responsibility be governed
by the common law, rather than by State law, and we

respectfully adopt the analysis followed in those

passages of that interim report, and finally may we

hand to the Court several pages taken from a recent

Polyukhovich(4) 360 9/11/90

text on Commonwealth Criminal Law by Sweeney and

Williams, which makes exactly the same point about

the effect of section 79 and 80 in the general

principles of criminal responsibility.

If our learned friend's submissions were

correct in relation to section 13(2), then the

Commonwealth could not pass offences creating

criminal statutes unless, in effect, it went the

whole way and codified them to the point of setting

out elaborate principles of criminal responsibility

and all relevant defences.	We submit that simply
cannot be so.	We point to two other statutes which

illustrate the principle that the Commonwealth may

create Commonwealth offences where different State

principles are picked up and applied to the

Commonwealth offence. The Crimes at Sea Act 1979,

sections 6 and 7, and the Commonwealth Places

(Application of Laws) Act 1970 both operate in that

way.	The offence that is committed is a
Commonwealth offence.	Your Honour Justice Mason in

Lowenthal; ex parte Blacklock, (1974) 131 CLR 338,

at 346 so characterized an offence under the it picks up the State regime, including all the

rights and duties surrounding that State regime of

the State in which the Commonwealth place happens

to be located.

In the case of Crimes at Sea, if an Australian

resident commits a crime on a foreign ship,

overseas under the Crimes at Sea Act, he takes with
him the place of his domicile and the law of his

domicile, so if he happens to be a Victorian, then

he will _be dealt with under Victorian law, or the

content of Victorian law, but it will be for a

Commonwealth offence under the Crimes at Sea Act,

and if our friend's section 13(2) point is correct,

then not only this Act, but a great many other

Commonwealth Acts, in our submission, would also be

unconstitutional for much the same reason that he

has adumbrated.

We do not desire to say anything further or

finally in relation to sections 13(4) and (5), we

have set out what we have to say about those

provisions in our concluding submission and there

is only one other matter that we desire to put.

We would simply invite the Court to recall,

when dealing with these offences of war crimes and

crimes against humanity, the observation that is

made by Wagner, on the second page of his article,

that "war crimes and crimes against humanity are,

by their very nature, crimes committed against all

humanity". Our submission is that those crimes are

committed against Australia and Australians, just

Polyukhovich(4) 361 9/11/90

as they were committed against the victims who were

killed in the holocaust in Europe. Our submission

is that if those matters constituted violations of

international law, international law itself is part

of the regime of Australian law, and in those
circumstances we submit that the argument about

retrospectivity or retroactivity has to be seen in

that particular context. If the Court pleases,

those are our submissions.

MASON CJ:  Thank you, Mr Weinberg. We were told by the

Solicitor for the Commonwealth that you were going
to deal with the questions raised by

Justice Gaudron.

MR WEINBERG:  I am sorry, Your Honour, you were and I will

come to those - I was not listening absolutely

clearly when Your Honour Justice Gaudron raised

them with my friend and I felt rather badly when he

said I would deal with them without having heard

them all that clearly. I wonder if Your Honour

could just restate them for me.

GAUDRON J:  I am not sure that they need dealing with,

Mr Weinberg, but it simply is this, if there is a

judicial power problem in relation to this Act, it

is not a problem that is necessarily dealt with by

looking at the provisions guaranteeing a fair

trial.

MR WEINBERG:  Your Honour, what I heard Your Honour say, the

bit of it that I heard, had something to do with

the fact that the accused might be unfit to stand

trial or - - -

GAUDRON J: Yes, that is what I am saying. If there is a

judicial power problem in this Act, it is not a

problem that need only be looked at in terms of the

trial processes.

MR WEINBERG:  Your Honour, that would be correct. We would

accept that proposition. I was not certain whether

~Your Honour was suggesting that there was a

particular problem in this case, because this
particular plaintiff might in some way be denied a

committal, based upon the particular provisions of the legislation that Your Honour had to deal with.

We were simply going to say to that that that is

not the situation. This plaintiff, in the event

that this legislation is upheld, will not be

brought to trial without committal nor will any

other person be brought to trial without committal.

My own Act prevents me from bringing any person to trial in relation to any offence under this Act

without committal hearing.

Polyukhovich(4) 362

GAUDRON J: But the legal processes may, none the less, be

brought to bear without committal and without

;_ t+::ial.

MR WEINBERG: There are always incidental processes that can

arise along the way and Your Honour has correctly,

with respect, identified one of them that occurred

in a fairly unforeseen fashion.

DAWSON J: In other words, if he is found not fit to plead

and a prima facie case is made out against him -
and I have not looked at the provisions - he then

may be incarcerated for a considerable period of

time, indefinitely.

MR WEINBERG:  The power is there, Your Honour, by virtue of the provisions of Crimes Act, as amended, yes.

DAWSON J: But operating in relation to the offences created

under this Act.

MR WEINBERG:  Yes, Your Honour, that is so.

DEANE J: It is the Commonwealth Crimes Act?

MR WEINBERG:  Yes, Your Honour, there were amendments

introduced into the Commonwealth Crimes Act. They

came into force on 17 July of this year. I think

they are found in section 20 of the Act as amended

and they create a new regime for persons who might

be found unfit to stand trial, whether at committal

or at trial, if my recollection serves me.

Your Honour, I was not certain whether there

were any other matters that I can assist with but

those are our submissions.

MASON CJ:  Thank you, Mr Weinberg. The Court will consider

its decision in this matter.

AT 3.34 PM THE MATTER WAS ADJOURNED SINE DIE

Polyukhovich(4) 363 9/11/90