Polyukhovich v The Commonwealth of Australia

[1990] HCATrans 208

A'1r -!))~~~~~~(<..~

IN THE HIGH 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

TRANSCRIPT OF PROCEEDINGS

Polyukhovich(3) 193 5/9/90

AT CANBERRA ON WEDNESDAY, 5 SEPTEMBER 1990, AT 10.18 AM

(Continued from 4/9/90)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Charles.

MR CHARLES:  If the Court pleases. Your Honours, last night

I had dealt briefly with the matter of genocide in

opening and I had done so somewhat at a rush. I

wanted to shortly put to the Court this morning the

plan which we propose to follow in our submissions

today and then, if the Court will allow me, to go

back to the question of genocide.

Your Honours, the plan we propose to follow

is, firstly, to seek to make good some propositions

both as to retroactivity as a matter of

international law and, secondly, as to what crimes

against humanity contemplated as at 1945; secondly,

Your Honours, we propose to deal with the changes

in international law which occurred immediately

after the Second World War; thirdly, we will deal
with the manner of proof of customary international

law; fourthly, we then turn to the War Crimes Act

and its proper construction and follow that with
what we understand to be the operation of the Act,

the manner in which it acts retroactively and

conflicts with international obligations that

Australia has accepted.

We then will argue that the Act is

unconstitutional as a response to any scope that

the external affairs power may have and, for

separate reasons, we will deal with the impact of

Chapter III upon the Act. Next, Your Honours, we

will deal with what we call the jurisdiction

argument, that is, an argument that, if there is a

remedy here, extradition is the proper remedy to be

applied .in this case.

Next, Your Honours, with the question of

whether any relevant international obligation has
been shown to exist on the facts before the Court.
Next, Your Honours, with whether any relevant

international concern has been shown to exist and the potential impact of that upon the enlivenment

with the question of pure externality and, finally,	of the external affairs power. Next, Your Honours,
with the defence power, and in a week's time we
will hope to have finished, Your Honours.

MASON CJ:  I do not think you are going to have that

opportunity, Mr Charles.

MR CHARLES:  We appreciate that. Your Honours, having had

the impertinence to offer the Court last night some

homework, may I take the Court back to one of the

articles to which we drew the Court's attention.

That is the chapter by Joseph Kuntz headed the

"United Nations Convention on Genocide" and

appearing in volume 43 of the American Journal of

Polyukhovic(3) 194 5/9/90

International Law at page 738. Your Honours, I

invite the Court to turn to page 741 and I seek to

do this, Your Honours, because the passage that I
am about to read to the Court has relevance at some

four separate points in the arguments we will be

making to the Court. What Mr Kuntz said is that:

The substantive law, pertaining to

criminal law, is contained in Articles I-IV.

Although the word "genocide" is new, the

practice is an old one: the destruction of

Carthage by the Romans, the extermination of

the Indians in North America, pogroms in

Czarist Russia, the Armenian massacres in

Imperial Turkey are just a few examples.

Although the present Convention and Lemkin's

ideas have been provoked undoubtedly by the

persecution of Jews and others by National

Socialist Germany, the Convention is not a

lex specialis like the Nuremberg Charter.	The
preamble expressly states that "at all times

of history genocide has inflicted great losses

on humanity."

Article I confirms that genocide, whether

committed in time of peace or in time of war,

is a crime under international law. The word

"confirm" has been chosen, because already

Resolution 96(I) of 1946 had "affirmed" that

genocide is a crime under international law.

But Resolution 96 (I), like resolutions in general, has no legally binding effect; it is

merely a recommendation. In the Sixth

Committee the delegate of the United Kingdom

said that those who support the adoption of a

convention on genocide do so on the ground
that genocide would be illegal only if such a
convention were concluded, whereas genocide

has been illegal since the Nuremberg Trial.

The American answer was that this overlooks

the vital necessity of provisions for detailed

definition and enforcement and that the

Nuremberg Judgment did not cover genocide

committed in time of peace. The British

argument is not tenable. The Nuremberg

Charter created only a lex specialis against a

named group of men in the service of a

conquered enemy. Genocide by a state against

its own citizens was morally condemned, but it
was "generally recognized that a state is

entitled to treat its own citizens at

discretion and that the manner in which it

treats them is not a matter with which

international law, as such, concerns itself.

And as to so-called humanitarian intervention,

"there is general agreement that, by virtue of

its personal and territorial supremacy, a

Polyukhovich(3) 195 5/9/90

state can treat its own nationals according to

discretion"; in the previous editions of

Oppenheim the view was expressed that "whether

there is really a rule of the Law of Nations

which admits such intervention may well be

doubted." Lauterpacht, in the latest edition,

also recognizes that states had a

disinclination to take responsibility for a

humanitarian intervention and that, on the

other hand, it has been abused for selfish

purposes. The Convention, therefore creates

in this and other points new law binding only

on the states which have ratified it.

Now, Your Honours, the matters that we draw from that include the following: firstly, there is

an explanation of the wording used in the

convention and in resolution 96(1). Secondly,
Your Honours, it demonstrates the impact that

United Nations resolutions have, that is to say,

that they have no legally binding effect. Thirdly,

Your Honours, it supports - and there is nothing as I follow it between my friends to my left and us on

this point - that the Nuremberg Charter and the

judgment of the tribunal have at all times been

treated as correctly stating international law in

relation to war crimes and crimes against humanity,

and stating the law as at that time.

Next, Your Honours, it makes the point that

one of the difficulties with dealing with genocide

against the citizens of one's own country is that

it had been generally recognized that a State is

entitled to treat its own citizens at discretion,

therefore, presumably until this time, to deal with

them even if necessary by torture, for the purpose

of extracting confessions.

Now, Your Honours, if that was a correct view, that a State was entitled to treat its own citizens at discretion, we would submit that that is an

extreme example which disposes instantly of any

notion that the Commonwealth may call in aid the

external affairs power simply by reference to the

fact that it has some right which it wishes to

bring into play at international law.

To say, for example, now that this nation

State has a right at international law to try its own citizens for events of 45 or 50 years ago, we

would submit with respect, says absolutely nothing

about the external affairs power.

Now, Your Honours, going back to the direct

question of retroactivity, it is our submission and
we take this but we make the point out of an

abundance of caution to be agreed between the

Polyukhovich(3) 196 5/9/90

parties, that it is a basic principle that

legislation should not act retroactively, that is

to say, should not make criminal acts or omissions

which were not criminal at the time of their

commission.

The various matters that establish that if it

be necessary to do so, Your Honours will find in

the universal Declaration of Human Rights - it is

in the materials book, volume IV at page 9, in

article 11(2); secondly, in the international

covenant on civil and political rights in the

materials book, volume IV at page 14, in

article 15, in the Hetherington report - - -

DAWSON J: Is there not an exception in article 15?

MR CHARLES: There is indeed, Your Honour. It is an

exception which, we say - that is in

article 15(2) - in narrow form in relation to what

is excepted by criminal law of nations generally as

criminal which we take to be the universality

principle.

McHUGH J:	Mr Charles, I am not following, at the moment, why you say section 7(3) - or at least I understand
you to be saying that section 7(3) would be giving
effect retroactively to a crime?
MR CHARLES:	We say, Your Honour, that in so far as

section 7(3) is concerned what it does is to deal

with matters which arise in definitional terms from

the Genocide Convention but which were not before

1945 - to take the end of the Second World War -

which we~e not before that time regarded as crimes

by international law.

McHUGH J: Well, the definition requires it not only be

committed:

in the course of ..... persecution -

and so on, but it must be:

committed in the territory of a country when

the country was involved in a war or when the

territory of the country was subject to an

occupation.

Now, the Nuremberg judgments seem to proceed on the

basis that there was a presumption that genocide,

or acts against nationals committed in Germany, or

in occupied countries during the war, were war

crimes.

MR CHARLES:	And there was a very good reason, if I may say so, Your Honour, why that was the case.	The
Polyukhovich(3)	197	5/9/90

Nuremberg Tribunal dealt with a particular group of

major war criminals, and they were classified as

major war criminals; they were all German; they	were all in positions of enormous authority and
power within the German military, naval or
governmental hierarchy, and that being so,
Your Honour, what the Nuremberg Tribunal did - this is what we take to be the point made by Schwalb, to
which my learned friend, Mr Burmester referred
yesterday - what the tribunal therefore did was to say that in relation to each of these German defendants, after the war has started, everything
you do, and which is proved against you, will be presumed to have been inextricably connected to the war which your country, Germany, was then waging.
All of these defendants, Your Honour, were German. Entirely different questions would arise
in relation to defendants, had there been any, who
were not German. Now, Your Honour, there is an
entirely separate question that is raised by this
very curious Act.
When one turns to the wording that has been used in section 7(3) and referring back as it does
to the definition of war which certainly introduces
a concept of:

"war" means:

(a) a war, whether declared or not .....

in so far as it occurred in Europe - - -

McHUGH J: Rightly or wrongly, 7(3) seems to be based on the

Nuremberg judgment, does it not?

MR CHARLES: With great respect, Your Honour, while it may

have been, it would be based on a misunderstanding

of that judgment, in our submission, for the

reasons I have put. But, quite separately - may I

make a preliminary submission on construction that

we would wholly dissent from the approach to
.	statutory construction which has been urged on this

Court by the learned Solicitor-General and

apparently embraced by the Director-General of
Public Prosecutions.

That, we would submit, is a process of

construction by distortion leading to destruction

followed by substitution and we would submit that

when one comes to construing an Act of Parliament

of this kind one must remember the reality that it

will be applied by magistrates and judges in courts
with such assistance legitimately as can be
obtained from extrinsic material and without any of

these implications which, among other things, are

Polyukhovich(3) 198 5/9/90

flatly in defiance of what is said in the

explanatory memorandum.

When one looks at what section 7(3) in fact

says, it says that:

A serious crime is a war crime if it was:

(a) committed:

(i) in the course -

or -

(ii) with intent to destroy -

and -

(b) committed in the territory of a country

when the country was involved in a war - The United Kingdom was involved in the war; what

about the territory of the United Kingdom? France

was involved in the war; what about Algeria, what

about Noumea, what about Tahiti? Australia was
involved in the war; what about Australia? Each

of those countries was involved in the war. There was nothing to say that the Act does not extend so

far.

McHUGH J: Except the definition of war is that "in so far

as it occurred in Europe".

MR CHARLES: That is the war, Your Honour, yes.

MCHUGH J: Yes •.

MR CHARLES:	But, it does not say that the territory of the countries in question is limited in that fashion.
This Act seems in terms as appropriate to the
situation of a Campbell highlander or rather, I
should say, a McDonald highlander inflamed by whisky coming upon a group of Campbell clansmen and
attacking them in memory of his past massacres.
Now, there is nothing on the face of it which would seem to prevent that application. There is
nothing on the face of it which would indicate that
some attack by persons in England, some group of,
let us say liberal-minded Englishmen, descending on
a fascist rally in Britain in 1940, would not be
just as appropriate to the way in which this Act
should operate; that is, the territory of a country
when the country was involved in a war.

McHUGH J: Well, I suppose it might be applicable to crimes

in Ulster, for example.

Polyukhovich(3)	199	5/9/90
MR CHARLES:	Indeed, Your Honours, yes, entirely.	Now,

there is nothing on the face of it which suggests

that this is not appropriate and, indeed, no doubt,

if there were German servicemen who had landed

after a raid in England during the war, there is no

obvious reason why it should not perfectly apply to

them.

Now, Your Honours, we would say that in precisely the same way so Australia was involved in

the war and this country, of course, is territory

of Australia. Now, the reason we are brought in is

that we were involved in that European war and

there is the nexus which makes the Act relevant.

It does not say that the territory must be in

Europe.

Now, the second matter, Your Honours, is that

the connection which is seen by section (3)(b) to

exist is either temporal or geographic, "committed

in the territory of a country when the country was

involved in a war". It does not suggest that it

need have any connection with the war as such and,

in that respect, puts it entirely distinct from

matters related to those things under the

consideration of the Nuremberg Tribunal.

I was giving the Court some references in

relation to retroactivity. May I briefly, and

without taking the Court to any of them, simply

cite the Hetherington report in the materials book

volume III at pages 163 and 172; the Deschenes

report, materials book volume III at page 143C and

following; the article by Mr Wagner in materials

book volume III at pages 68 to 70; in the report of

Demjanjuk in volume II at page 106 and in the

report of Finta in volume II at pages 135 and 142

to 143.

Your Honours, may I now hand to the Court some

additional extracts from the Hetherington report

which, unfortunately, were not included in the

parts which were in the materials book.

TOOHEY J: Mr Charles, while that is being done, does your

response to Justice McHugh bear only on the

question of retroactivity or does is it said to

relate to the notion of external affairs?

MR CHARLES: Yes, indeed, Your Honour, it is.

TOOHEY J:  I do not want you to develop that. I just want

to understand the breadth of the answer.

MR CHARLES:  I am sorry, Your Honour, yes it does. It does,

for this reason: it will be our submission that in

so far as there is any scope, and we say there is

Polyukhovich(3) 200

none, for the enlivenment of the foreign affairs power, the Court, in our submission, should then give the most close scrutiny to an Act of this kind

to see how the Act responds to the scope of the

external affairs power that has been brought into

operation; secondly, the way in which the Act
operates, whether it acts retroactively, whether in

so doing, the Commonwealth Parliament has acted in

breach of an international obligation by which it

is bound, and we will say that is one of the

obligations by which it is bound, Your Honours, and

in that sense, Your Honours, yes indeed, our answer

does bear on the external affairs power.

Now, Your Honours, the passages in

Hetherington which we have just brought to the

Court's attention I do not propose to read them but the Court will find at pages 61-64 the conclusions

arrived at by Sir Thomas Hetherington and

Mr Chalmers on these questions and the conclusion,

in particular, arrived at in paragraph 6.44.	The
conclusion there also is reached that to make
genocide now an offence in relation to the
activities of 1939-1945 would constitute
retrospective legislation. That conclusion,
Your Honours, is at 6.41.

May I, while the document is in the Court's

hands, direct attention very briefly to the

introduction and, in particular, Your Honours, the

Court will see on page 1 in the introduction reference to "The original allegations" and

Your Honours will see that on the 1.1:

On 22 October 1986 Rabbi Marvin Hier of the

Simon Wiesenthal Centre (SWC) in Los Angeles

wrote to the Prime Minister enclosing a list

of 17 alleged war criminals said to be living

in Britain. This list was leaked, apparently

from non-Governmental sources, and was

published in a number of national newspapers.

A photocopy of the li$t came into the

possession of Scottish Television -

and there was an approach to the -

Embassy of the Soviet Union -

and -

a further list of ...•. suspects -

was produced and -

The Home Office -

then -

Polyukhovich(3) 201 5/9/90

examined the lists and attempted to trace

those named - and may I simply refer the Court to item 1.8 on the

next page where the Court will see that one of the

persons whose names was published in this list:

alleged to be a war criminal -

was found to be -

a case of mistaken identity.

and another case has since "been withdrawn". Next, Your Honours, may I give the Court a

short reference, and the purpose of this will

become apparent in a moment, to a passage appearing

again in the introductory paragraphs of the entry of suspected war criminals into

Australia.

I draw the Court's attention to the

allegations being referred to on page 7 in

paragraph 1.12, and Your Honours will see that what

is said is that the allegations came from a number

of sources, first with the allegations or

contentions raised in a series of radio

programmes - if I may interpolate, Your Honours, I

think by Mr Mark Aarons who has later written the

book which is regarded generally as the source of

the legislation in Australia, a book called

"Sanctuary - Nazi Fugitives in Australia" - a

series of radio programmes on Australian

Broadcasting Corporation radio commencing on

13 April 1986, called "Nazis in Australia";	on the
ABC television programme in April 1986 called
"Don't Mention the War".

Now, Your Honours, the_ very real and relevant

purpose for mentioning those matters at this stage

_is the Court will in due time be asked to consider

whether a matter of international concern is

involved as the cause of the legislation presently

before the Court.

One of the submissions that we will make is

that while I do not for a second mean to cast doubt
on the genuineness of the concern which is

expressed or the depth of feeling behind those who

have made the allegations and pressed for the

introduction of legislation, we will submit that
there is a very real question about whether that is
properly characterized as an international concern

rather than as - - -

Polyukhovich(3) 202 5/9/90

McHUGH J: But that is not really the question, is it? The

-matter of international concern is the apprehension

and prosecution of war criminals. All that this

material suggests is that it was not until 1986

that it was realized that Australia might have a

problem.

MR CHARLES:  Your Honour, the answer we would make to that

is that when the Court is asked to consider the

enlivenment of a constitutional power in relation

to what is said to be a matter of concern rather

than something tangible like a treaty obligation or

a conventional obligation, then a matter of the

most enormous difficulty is going to arise for the

Court in determining whether there is a concern

which is international. Does that mean

international in the sense of between Australia as

a nation and other nations? Does it simply mean

something else, that is to say, a concern felt by

groups of people of whatever nature,

internationally in the sense of in different

countries?

In other words, Your Honours, to give an

extreme example, would it be sufficient for the

enlivenment of the foreign affairs powers that

groups of people, not in the sense of parliaments,

but groups of people in a variety of different

nations all felt fervently that marihuana should be

legalized? Is that a sufficient international

concern to entitle the Commonwealth Parliament to

legislate to that end?

Now, Your Honours, I have dealt with the question retroactivity and I say no more about it.

The next question to which we wish to come is the question of genocide, and may I start - and I

propose to do this briefly because members of the

Court have had the matters to which we drew

attention last night. I am sure they have all been

read. Could I invited the Court to turn to

volume I, page 152, article 6 of the Nuremberg

Charter - page 152 of that third volume,

Your Honours.

McHUGH J: First volume.

MR CHARLES:  I am so sorry, indeed. I am about to invite

the Court to turn to volume III as well.

Article 6, the Court will see, deals firstly in

article 6(a):

Crimes against peace -

that is the -

Polyukhovich(3) 203 5/9/90

planning, preparation ..... of a war of

aggression.

One would have thought, incidentally, Your Honours,

that in the light of that definition, there would

have been ample opportunity, had the international

tribunal wished to make use of it, or thought it

was able to make use of it, for the application of

article (a), in relation to periods substantially

before September 1939. However, the Court will see

that those offences there set out are required to

exist:

in a common plan or conspiracy for the

accomplishment of any of the foregoing -

which includes:

planning, preparation, initiation or waging of

a war of aggression, or a war in violation of

international treaties.

Secondly, Your Honours, we come to:

War crimes: namely, violations of the laws or

customs of war.

And including:

murder, ill-treatment or deportation

of ...•. civilian population of or in occupied

territory, murder or ill-treatment of

prisoners of war.

And then, Your Honours, the particularly relevant

one here:

Crimes against humanity.

And here one must find any of the first acts

mentioned:

murder, extermination, enslavement,

deportation, and other inhumane acts committed

against any civilian population, before or
during the war, or persecutions -

then mentioned - - -

McHUGH J: It has got a comma in it. Does the English text

have the semicolon?

MR CHARLES:  The English text, Your Honour, originally had a

semicolon; that was removed and a comma

substituted, and that raised the question, which was the subject of hot debate, as to whether the

phrase:

Polyukhovich(3) 204 5/9/90

in execution of or in connection with any

Tribunal - crime within the jurisdiction of the

that was against peace or war, referred to both of the preceding passages, or only to the immediately

preceding passage.

One of the matters that Dr Schwalb engages in his article is to demonstrate, we submit

conclusively - and we did not understand this to be

challenged by Mr Burmester - that the connection

must exist in relation to both of the preceding

passages; that being demonstrated by the fact that

there were two texts, an English and a French, both

authorized texts, and the explicit wording of the

French text makes it quite clear that that phrase

refers to both of the preceding paragraphs.

DAWSON J: There is now no controversy, you say.

MR CHARLES:  I understand there to be no controversy on this

question, .Your Honour, yes.

DAWSON J: Not only between you but generally.

MR CHARLES: Well, Your Honour, I do not know now of any

other writers who challenge that construction. We would submit that it is plain beyond argument that

Dr Schwalb is right when one reads the text of the
French version simply because the phraseology makes

it quite plain in the language that the intention
is to refer to both of the previous passages.

Dr Schwelb's article, Your Honours, is to be found in volume II, page 201 and following.

The Court will recall the judgment of the

tribunal which appears in volume II, at page 34.	I
rely, Your Honours, upon the whole of the second
major paragraph beginning on page 34 and starting
at point 4 on that page. Then, Your Honours, at
point 6, these words appear:

To constitute Crimes against Humanity, the

acts relied on before the outbreak of war must

have been in execution of, or in connection

with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that

revolting and horrible as many of these crimes

were, it has not be satisfactorily proved that

they were done in execution of, or in

connection with, any such crime. The Tribunal

therefore cannot make a general declaration

that the acts before 1939 were Crimes against

Humanity within the meaning of the Charter,

but from the beginning of the war in 1939 War

Crimes were committed on a vast scale, which

Polyukhovich(3) 205 5/9/90

were also Crimes against Humanity; and insofar

as the inhumane acts charged in the

Indictment, and committed after the beginning
of the war, did not constitute War Crimes,
they were all committed in execution of, or in

connection with, the aggressive war, and

therefore constituted Crimes against Humanity.

TOOHEY J:  Mr Charles, does that mean that when the tribunal

speaks of jurisdiction and going to those

paragraphs (a), (b) and (c) that you took us to on
page 152 of the Nuremberg Agreement, the

jurisdiction must be found under paragraphs (a) and

(b) first in order to ground jurisdiction under

paragraph (c).

MR CHARLES:	As we understand it, Your Honour, there must be a connection between the act which is alleged and
proved against the defendant and either a crime against peace or a crime against war. That,
Your Honour, going back to page 152, is a necessary
element of the crime against humanity "inhumane
acts committed against any civilian population".

It comes in part, Your Honours, from the fact

that one finds in the definition of "War crimes",
that is, in (b) that there may be a war crime in

relation to civilian populations provided that they

were "of or in occupied territory". One of the

difficulties with the definition of a war crime

before this time was that it had not covered acts

by a State against its own citizens or acts by a

State against other citizens who were not in a

state of belligerency with it or who had been

occupied without military force being used.

Now, the consequence, therefore, was, Your Honours, that when one came to find crimes

against humanity in (c) then one had to find where

crimes were committed against a civilian

population, that this was "in execution of or in

connection" .

TOOHEY J: Yes, it is not inconceivable, though, that crimes

committed against the civil population might take

place within one of the acts referred to in

paragraph (a) .

MR CHARLES: Indeed, Your Honour.

TOOHEY J: And yet the tribunal seems to have taken the view

that acts committed before the commencement of the

war fell outside its jurisdiction?

MR CHARLES:  Yes. I suppose, Your Honour, it is possible

that this was simply because they already had so

vast a collection of appalling offences to deal

Polyukhovich(3) 206 5/9/90

with it was simply unnecessary to go back to them.

But, in any event, it was plain enough that they

treated this as being a matter of argument and

something which could not be presumed to come

within the definition of war crime but anything

after 1939, once war had been declared, presented

no problem for that group of defendants.

DEANE J:  Mr Charles, your argument is proceeding almost on

the basis that section 7 stood alone. Before one

can understand where your argument leads, do you

not need to explain what you say is the effect of

section 17(2) because, on one approach, your

argument would not go to validity but would go to

the applicability of the legislative provisions,

one, to the indictment based on one of the

alternative bases?

MR CHARLES:  Your Honour, I accept that. It was a matter of

some argument between us as to whether we should start with the international law elements of our argument.

DEANE J: Well, do not let me take you out of your course

but my mind, throughout your argument, is going

backwards and forwards to see how it fits into

section 17(2).

MR CHARLES:  Your Honours, may I, instead of proceeding with

the international law aspects, turn to the Act.

DEANE J:  I am only one member of the Court; I would not

change your course for me.

MR CHARLES:  Your .Honours, I am sure if it would be helpful

to Your Honour Justice Deane it would be helpful to

other members too. May I turn to the Act and deal

with what we say is the construction and operation

of the Act and then come back to the questions of

international law.

Your Honours, starting with section 6 and

noting the serious crimes under section 6, we note:

(a) murder;

we note that under:

substantially the same as the elements of an (j) an offence whose elements are

offence referred to in any of paragraphs (a)

to (h), inclusive -

and we note the aiding and abetting the associated

party in subsection (k). Then, Your Honours, we

come to section 7 and we say as to this that when

one looks at the wording that:

Polyukhovich(3) 207 5/9/90

(1) A serious crime - one of those immediately just referred to -

is a war crime if it was committed -

in the following ways, we would submit that the

ordinary interpretation of:

in the course of hostilities in a war;

or:

in the course of an occupation;

the ordinary interpretation of those words is a

connection that is either geographic or temporal,

simply something which happens during and,

secondly, we refer in that context to the wording

of subsection (2) which we say demonstrates, if

there had been any doubt about the matter, that

there is a sufficient connection for the purpose of

section 7(l)(a) and (b), if it is either time or

place.

Now, Your Honours, we would put it that

next, (c), if one refers to that:

in pursuing a policy associated -

that might well demonstrate a sufficient connection

with the waging of a war, but when one comes

to (d), a serious crime committed:

on behalf of, or in the interests of, a

power -

it is not clear whether that involves a purposive

element or whether it simply refers to the

consequence of the action. Now, Your Honours,

next, (2), the limiting factor in so far as it is

one, is something which involves a crime not being

a serious crime committed for the purposes of (a)

and (b), if the:

connection •.... was only incidental or remote.

We would submit that that may mean that the

connection in (c) or (d) could be remote and still

be regarded as adequate for the purposes of the

definition of a war crime. Secondly, Your Honours,

we say that there is a gap between a connection

which is incidental or remote and, secondly, a

connection which is sufficient for the purposes of

article 6(c) of the Nuremberg Charter.

Polyukhovich(3) 208 5/9/90

And if that is so, to the extent that someone

is caught in that gap, then that person has been

subjected to a criminal penalty in circumstances to

which, by international law, that person would not

have before 1945.

Now, when one sees the words:

merely because the serious crime had with the

hostilities or occupation a connection

(whether in time, in time and place, or

otherwise) that was only incidental or

remote -

simply puts a minimum threshold which we say is

quite different from the connection which those who framed the charter had in mind, and I will take the

Court to an authority later when I come back to

international law. We say, it was plainly enough

that a link, as my friends have put it, is

necessary, but we say it was a substantial and

direct link which is more than a connection,

simply, incidental and remote.

Now, then, Your Honours, when one comes to the

idea of a war crime within the context of
section 7(1), we say that not merely does the law

establish that the connection had to be a

substantial and direct one, we say that the cases

show that the notion involved was one of some State

directed atrocity and that this was an

accompanying, or accessory, crime. Indeed, that

phrase, Your Honours, is taken from the article

which my friend Mr Burmester read to the Court

yesterday - Dr Schwelb's article. So, it is our
submiss.ion that section 7(1) and (2) pick up what

would have been a category of war crime but then by

reducing the connection enlarge the category.

Now, we submit that it would be sufficient for

the purposes of section 7(1) that an isolated
murder was involved whereas, again, the cases in

international law assert with some frequency that

an isolated murder would not be a war crime for
this purpose.	Now, Your Honours, when one turns

then to section 7(3) one finds reference being made

to:

in the course of political, racial or

religious persecution.

Now, the words are not defined. Any suggestion

that these words bore any connotation that the
phrase might have by international law is, to say
the least of it, troubled by what appears in the

explanatory memorandum which says that

international law is not to be applied for this

Polyukhovich(3) 209 5/9/90

purpose, of course somewhat in conflict with the

Solicitor-General's argument to this Court on

Monday, but none the less that is what the

explanatory memorandum says.

One has to find, therefore, a persecution. In

our submission, the noun "persecution" conveys with

it something which happens with frequency or system

but not necessarily government directed or

associated with government. In other words, if one

found a group of members of the unionist party in

Australia who are highly disgruntled with the

activities of some left-wing union in 1939 or 1940

agitating, let us say, in support of Soviet Russia

at that time and coming along, attending all their

meetings, breaking them up and no doubt with acts

of force, that could amount, we would submit, to a

persecution within the meaning of that phrase.

And, for the reasons we have given, the

territorial provision in section 3(b) would permit,

in our submission, that to be covered.	Now,
secondly, Your Honours:

with intent to destroy in whole or in part a national ethnic, racial or religious group -

again, could cover the sort of situation in

Scottish Highlanders, to which I have referred,

and, likewise, the phrase:

committed in the territory of a country when

the country was involved in a war or when
territory of the country was subject to an

occupation - would seem to suggest that "committed in the

territory" refers to both of the subsequent

provisions and that that territory does not have to

be the part of the territory of the country

involved in war because the country might be the

aggressor or, secondly, not the territory which was

subject to occupation of the country last referred

to.

TOOHEY J: Assuming you are right in the construction you

argue for, Mr Charles, perhaps you could tell us at

some time the extent to which section 7(3) then

departs from accepted cannons of international law.

MR CHARLES:  We would submit, Your Honour, that

subsection (3) departs wholly from cannons of

international law that were accepted in 1945 - up

to that time. If there is any intention that this

Act apply only to crimes that were crimes at

international law at that time, the section would

Polyukhovich(3) 210 5/9/90

apply only incidentally simply because, say, France

is involved in the war, unquestionably a murder is

a serious crime and would have been a war crime if

committed in the course of persecution while the

country was at war in France with Germany.

TOOHEY J:  Do you mean persecution by the country; that is

at the direction of the occupying power?

MR CHARLES:  We would submit, Your Honour, that that was the

intention, although there may have been - - -

TOOHEY J:  I am sorry, do you mean the intention of

international law?

MR CHARLES:  Yes, Your Honour. We would submit that it

would be surprising if persecution other than

governmental persecution were in mind in framing

the words in the Genocide Convention which are in

part the source of this description in

section 7(3), but there is nothing necessarily in

the word "persecution" that ties it to acts

attached to some form of governmental authority.

For example, Your Honour, if one looked at the

massacre of Armenians which may have occurred

recently in southern Russian republics, there is no

suggestion that that is necessarily in any sense

government inspired, authorized or permitted.	But
a persecution of that kind might well be what is
included in the Genocide Convention.

However, Your Honour, in attempting to answer

Your Honour's question there is no doubt that there is a substantial overlap between section 7(1) and

(3). They are plainly not intended to be mutually exclusive so long as there was a connection with a

government, something that was a war crime under

section 7(l)(b) could plainly be a war crime under

section 7(3)(a) and (b). But as we follow it, it

must be under both parts of (a) and (b) for (3) to

operate.

TOOHEY J:  I take you to be saying there is a the necessary

· role of government in control order 96?

MR CHARLES:  No, Your Honour. The necessary element of

something attached to government has been

extracted, as we understand it, from the phrase "in

connection with", or "in execution of", one of the

first two sets of crimes referred to in article 6

of the Nuremberg Charter.

That, Your Honours, is one of the conclusions

which appears in the judgment in re Altstoetter to

which I will come when we deal with international law. In other words, if I may complete my answer

Polyukhovich(3) 211 5/9/90

to Your Honour Justice Toohey, we certainly do not

suggest that there would not be crimes which would

have been accepted as crimes against humanity at

international law which would come within

section 7(3). Our contention is that the section

goes a long way beyond it.

TOOHEY J: Yes, thank you.

McHUGH J: Your construction of 7(3) would lead to the conclusion that acts committed by Australians

against Japanese in Australia would fall within

7(3) notwithstanding the legislative intention.

MR CHARLES:	The legislative intention, Your Honour: what one finds reference in the preambular portion of
the Act to concern "having arisen that a
significant number of persons who committed serious war crimes in Europe ..... have entered Australia"
might underline the fact that that concern is not
said to be international concern; it is entirely
possible that domestic concern was what was in the
mind of the draftsman.

Secondly, Your Honours, there is nothing to

indicate that what was in the mind of Parliament

was something so selective as simply to deal with

those people rather than people who were guilty of

war crimes in the second World War. I accept,

Your Honours, that the preamble makes it surprising that the Act should be worded in the way in which

it is but there is, in our submission no obvious

reason when one gets to section 7 to read down the

word "territory" and one may well wonder why

Parliament would only have wanted to deal with, let

us say Germans who were engaged in war crimes in

Europe, rather than in Ulster or if they happen to

commit them there, let us say in a part of Europe

that was not involved in war or further, if there

were Germans in Noumea or Tahiti who committed war

crimes, why they should not.have been in the mind

of draftsman as persons appropriate to be dealt

with.

result but that is what the section seems, on its I accept, Your Honours, it is a surprising

face, to say.

Your Honours, in relation to the wording of

section 7(3), may we draw attention to the wording

of the Genocide Convention, article 11, which

appears in materials book volume I, at page 88.

The area of possible application of this section,

Your Honours, section 7(3), in our submission,

would include an attack by any section of the

concerned, we would accept that there is some

British community in the United Kingdom say, on

notion of continuity or system that is involved,

Polyukhovich(3) 212 5/9/90

but again no necessary connection with government,

so that a group of racially biased English persons
concerned to persecute an Asian group in England at

that time would be covered.

It is not suggested, in section 7(3), that it

need be in pursuance of any policy associated with

war or occupation, or on behalf or in the interests

of a belligerent force. So far as

section 7(3)(a)(i) is concerned, there is no

necessary connection with a group; the noun "group" only appears in the second part, 7(3)(a)(ii). Now,

it is our submission that there is a whole

hotchpotch of offences here or an extremely

surprising nature, and that will bear upon,

Your Honours, the question of whether this Act in its full .terms is an appropriate response to any power the Commonwealth may have to legislation.

DAWSON J: Where are you saying the power is drawn from when

you are putting these submissions?

MR CHARLES:  Where any power may be drawn from, Your Honour.

DAWSON J: Where are you saying it is drawn from: concern,

international law?

MR CHARLES:  If, Your Honour, the power came from a

customary obligation, then one would look to the

confines of the obligation, and we would say that,

just as this Court has said that in dealing with a

legislative response to a conventional obligation,

so one is bound by international law, likewise we

would say that in dealing with a customary

obligation, one would be bound also by

international law. If one were dealing with an

international concern the question might be

different, although we would submit that it would

be strange, indeed, if the Parliament had greater
power and to legislation more freedom to depart

from international law than if it were legislating

in response to some positive· obligation.

If the question is simply extraterritoriality,

then different questions will arise again, but we

shall certainly submit that any exercise of the

external affairs power should firstly involve

compliance with our external obligations, and

secondly, in any event, any departure from our

external obligations would have to be weighed in

the question of proportionateness.

MASON CJ:  Mr Charles, do you get any limitation in relation

to war crimes in terms of place from the definition

of "war" itself?

Polyukhovich(3) 213 5/9/90

MR CHARLES:  Your Honour, certainly there has to be a

connection of some kind.

MASON CJ: But do you get a limitation in terms of

commission of a crime in Europe?

MR CHARLES:  We would submit, Your Honour, that while that

is a possible construction it is not the correct

construction because, while one finds "war" being

defined in relation to Europe and "occupation"

having a related definition, that that indicates

that before the commission of a crime, say in the

territory of unoccupied France, is not immediately

affected by war or occupation, that the connection

which the Act draws is the fact that France is at

war.

Your Honour, it would be strange if one were

entitled to look at the whole of France for this

purpose and include within the operation of the Act

a murder occurring in unoccupied France, because

France is obviously at war, and yet not cover a

murder occurring, say by a German spy, in Algeria

of French nationals. Why should the Mediterranean

Sea prevent that being none the less related to the

war, having a definite connection with it, and it

is simply a question of an extended geographical

connection to find the same thing happening in

Noumea?

McHUGH J: But your argument gives the term "war crime" a

meaning which ignores the meaning of war in the

definition.

MR CHARLES: With respect, Your Honour, it does not because

what one has defined is a country involved - that

is the word in section 7(3)(b) - in war.

McHUGH J: But the definition of war means a war:

in so far as it occurred in Europe -

in a particular period.

MR CHARLES:  I accept that, Your Honour.

McHUGH J: Well then, a serious crime is a war crime if war

has the definition in section 5 and a serious crime

is, in effect, a European crime •.

MR CHARLES:  Your Honour, our first answer to that would be

that it is by no means clear that the composite

phrase "war crime" builds into the word "war", the

definition of war in Europe. "War crime" is a

phrase which has a fairly well understood meaning

at international law. It was the sort of thing

Polyukhovich(3) 214 5/9/90

which certainly covered acts world-wide as far as

the Nuremberg Charger was concerned.

McHUGH J:  And in 7(1):

A serious crime is a war crime -

is clearly a war crime in Europe, is it not? It

cannot be anything else.

MR CHARLES: Well, Your Honour, we would question, with

respect, that response. Why would it not be a

relevant war crime if one found the sinking of a

ship in the Atlantic?

McHUGH J: Except, it says it is the war:

in so far as it occurred in Europe.

MR CHARLES:  It is in the course of hostilities,

Your Honour.

MCHUGH J: Yes.

MR CHARLES: It occurs between, let us say - - -

MCHUGH J: In a war - - -

MR CHARLES:	- - - England and France. It occurs in relation to that war in Europe. It involves an
attempt, let us say, to deliver soldiers or
civilians to that European country. There is no obvious reason why - if I may take Your Honour back
to the question of France - those who framed the
Act would have wanted to cover only German
atrocities in occupied France as against unoccupied
France.

DEANE J: But, is not the position that section 7(1) defines

the connection between a crime and the war as

defined which makes it a war crime?

MR CHARLES: Yes, Your Honour. So that what one finds is

that -

DEANE J:  I was not putting that against you, I was putting

it as a possible answer to what Justice McHugh was

putting to you.

MR CHARLES: Yes, yes, I accept that, Your Honour. What one

finds - the war being defined in such a way as to

identify the participants - the war occurring in

Europe which was a war which involved most of the

countries in this world but not all and one then

finds, having defined what that war was, that one

must find acts committed according to 7(3)(b), in

Polyukhovich(3) 215 5/9/90

the territory of a country when the country was

involved in a war, that being the European war.

Now, Your Honour, I can only say that I accept

that the result may have surprising consequences,

but we submit that it is the obvious interpretation

of those words.

DEANE J: But the surprising consequences all depend on what

view one takes of section 17?

MR CHARLES:  Yes. If I can skip the rest, Your Honours, of

the Act for a moment and come back to them later

and turn to section 17, one finds that it is said

to have been:

a defence that if the doing ..... of the act

alleged to be the offence ..... was permitted -

as stated "and", and Your Honours, we note the

conjunction, rather than the disjunction:

was not under international law a crime

against humanity.

Now, Your Honours, we say that while a defence is

raised in those terms on no view does that limit

the operation of section 7 to crimes against

humanity; that it may have the effect that only

when a crime against humanity is established is a

war crime proved, but it cannot have that

interpretation as a matter of intention, partly

because of what the explanatory memorandum says,
that the court is not required to find a breach of

interna~ional law and secondly, Your Honours,

because the very statement in (4) that:

The defendant is not entitled to rely on a

defence under subsection (2) unless there is

evidence of the existence of the facts -

will, almost invariably, we would submit, mean that

the defence has to produce some evidence of the
existence of those facts.	We would submit that it

is patently nonsense to say, as the learned

Director of Public Prosecutions put yesterday, that

all one has to do is point to some allegation.

That simply is not consistent with the words that

have been used. There has to be evidence of the

existence of facts.

Now, Your Honours, I put shortly to the Court

last night three examples which we said

demonstrated situations of alleged offences which

would be consistent either with, let us say,

negligence in the driving of a lorry; or a

deliberate intention to run down civilians; or the

Polyukhovich(3) 216 5/9/90

destruction of a building which might have been
caused by military necessity; the need to get rid,

let us say, of enemy soldiers inside; or an

intention to destroy a large number of unarmed

civilians; or a simple shooting.

Now, Your Honours, one of the problems is that

at this length of time, nearly 50 years, it is a

matter that is simply obvious that the evidence in

relation to these matters will be sparse in the

extreme and the difficulties of proving facts both

for the prosecution and the defence will be, to put

it mildly, intense.

DEANE J: But, Mr Charles, why do you not simply read

section 17(2) as having the operation that acts

will not constitute an offence under the Act unless

they are a war crime or a crime against humanity

under international law and treating section 4 as

restricted in its application to the case where the

reason they do not constitute such a crime is something by way of confession and avoidance?

MR CHARLES:  The difficulty, Your Honour, is the words that

have been used.

DEANE J: Well, the difficulty is the word "defence" in

section 17(2), is it not?

MR CHARLES:	Yes, indeed.
DEANE J:	I mean, it is easy to read section 17(4) as

referring to a confession and avoidance case.

MR CHARLES:  Yes •. We would submit, Your Honours, that the

consequence of these matters is that it is possible

that persons will be convicted of offences against

section 7, notwithstanding that they were not

guilty of a crime against humanity because they are

unable to put forward evidence of the existence of

facts.

DAWSON J: Could that work out in practice? Assume the

· example you gave of the negligent driving of a

lorry, in the end when the Crown case is finished

all you have got is an equivocal situation such

that no jury could reasonably conclude that the

accused was guilty; in that case he does not have

to call evidence.

MR CHARLES:  Your Honour, I accept that that might be one

situation but suppose one varies the situation

mildly and suppose one has a person giving

evidence - accurately or not is beside the

point - - -

DAWSON J:  Some vindictive witness.

Polyukhovich(3) 217 5/9/90

MR CHARLES:  Some vin<;iictive witness saying, "I saw him; he

had those people absolutely in his sights and he quite plainly ran them down." Now, the only way the defendant might be able to answer that would be

by getting into the witness box himself. I have

absolutely no knowledge of the facts in relation to

my client or any other possible defendant but one

can, with great respect, see that it may be

impossible to put persons aged 70 or thereabouts

into the witness box.

One might readily take the view that one will

simply have no alternative for reasons of memory,

demeanour, anything one likes to think of, that one

simply cannot put them into the witness box.

DAWSON J: But that is a common difficulty; it is not one

which is peculiar to this Act.

MR CHARLES:  I accept that, Your Honour, but that may mean

that that person is then convicted of the section 7

offences even though there was involved no crime

against humanity.

DAWSON J: Well, only if he is not believed.

MR CHARLES:  Not in that case, Your Honour, because no

evidence would have been given. An attempt would

have been made to attack, no doubt, the prosecution

case; that would have been unsuccessful because
those fervent or truthful witnesses will have been
accepted. The defendant will not have been in the
witness box and a statement from the dock not on

oath, we would submit, would not constitute

evidence of the existence of facts.

BRENNAN J: Could I just take you back to two answers that

you have just given; one to Justice Deane and one to Justice Dawson. I do not understand how it is that if you have got the lorry instance with an

equivocal case, it is one of confession and

avoidance and perhaps you could explain what you

mean by confession and avoidance in the context of

a -

MR CHARLES:  Perhaps I accepted it too quickly, Your Honour.

Possibly one should say that it is not so much confession and avoidance as in the case of the

person who was driving the lorry negligently or

alleged to have been with intention to kill, not
confessing and avoiding but saying, "Look, I didn't

see these people at all. I was being told to drive

by my superior and they just happened to get in the

way unfortunately".

Polyukhovich(3) 218 5/9/90

BRENNAN J: Well, what all that means is that 17(2) either

is or is not an element of the offence in

section 9.

MR CHARLES:  And, we would say, Your Honour, in answer to

that that it is not an element of the offence

because in some circumstances, possibly in many

circumstances, one is not entitled to raise that

defence and it is that which takes it out of one of

the necessary elements of the defence. I should

mention to Your Honours - I have been reminded -

that the explanatory memorandum in volume III at

page 203 asserts that:

The purpose of this provision is to ensure

that a person charged with an offence created

in the Bill will not be convicted of that
offence if the person can raise credible
evidence that the person's actions were not

contrary to the laws, customs and usages of

war and did not constitute a crime against

humanity, unless the prosecution can rebut

that evidence beyond reasonable doubt.

DAWSON J: It does not say you cannot raise a defence; it

says you cannot rely on it.

MR CHARLES:  I accept, Your Honour, that one might be

entitled to raise it and, indeed, to cross-examine

but that does not mean, Your Honour, that at the

end of the day without the accused having got into

the witness box and having given some credible

evidence that one is entitled to rely on the

defence.

DAWSON J:  Not ~hen the Crown has not proved its case. The

existing facts you can rely on are those which have

been proved if there is a reasonable - - -

MR CHARLES: Indeed, Your Honour. The next point in answer

to that, if I may take up precisely what

Your Honour has put to me, is that if the accused

did give evidence, and if ·the judge took the view

that it was not credible evidence, or put to the

jury that they should take the view it was not

credible evidence, then again one is not entitled

to rely on that defence.	It ceases to be an
element of the charge.

BRENNAN J:  I am having difficulty with the notion of

elements altogether, and indeed if one comes back

to the basic difference between elements and proof
of elements, one has the greatest difficulty in

understanding what section 17(2) is about, whether

there is an offence which is non-provoked. And one

of the elements of the offence of murder is mens rea which includes non-provocation. It is only,

Polyukhovich(3) 219 5/9/90

however, if there is something to raise the issue

that the question then arises as a live one for the

jury.

But in this case, if one has a case which

falls within section 7 and section 9 before one

gets to 17(2) and the prosecution raises it, is the

question of 17(2)(a) and (b) an element of the

offence so that it is susceptible, to use

Justice Dawson's term, to raise it, and say, "Well,

there is no evidence about it?" Or is it something

which simply awaits the adducing of evidence before

it even becomes an issue?

MR CHARLES:  We would say, Your Honour, that it awaits the

adducing of evidence before it becomes an issue.

Our submission is that the proper construction of

these sections taken together is that the

prosecution begins without any necessity to prove a

crime against humanity; that that interpretation

is supported by the explanatory memorandum; that

one could arrive at the end of a prosecution case and find the defendant unwilling or unable to get

into the witness box; and at that point the judge

would direct the jury, "It is now a matter for you.

You find what section 7 has to say. You have to

give no consideration to the question of crime

against humanity, of the international laws of war.

That is entirely beside the point. Your job is to

see whether an offence is created under

section 7(3), that is, a case of, let us say,

murder, in a persecution, no connection with war is

necessary at all on the wording of the section.

That is your concern."

TOOHEY J: It is a corollary of that argument then,

Mr Charles, that without subsection (2) it would be no answer to a charge under section 7 that the act,

the subject of the charge, was not under

international law a crime against humanity.

MR CHARLES: Yes, Your Honour.

BRENNAN J: Well then, you attribute to 17(2) the role of a

true defence - - -

MR CHARLES: Yes, Your Honour.

BRENNAN J:	- - - as a confession and avoidance.
MR CHARLES:	I think I may have - I am not sure,

Your Honour -

BRENNAN J: That is not against you, I do not think,

Mr Charles.

Polyukhovich(3) 220 5/9/90

McHUGH J: You may not have to go that far. It may be

that 17 suggests that there is a presumption about

section 7 that offences charged under those

sections are contrary to the laws, customs and
usages of wars and not done under the international

law unless you make an issue of it just in the same way as there is a presumption of sanity or there is a presumption that a court has got jurisdiction to

try an offence until it is raised.

MR CHARLES:  Your Honours, one of the difficulties I have

with that is that it is very difficult to construe

the Act as making any assumption within section 7

when, if our submissions be correct, the Act in

terms is departing from the offence known at

international law as criminal.

McHUGH J:  I appreciate that but on its face 17 seems to

suggest that the matters involved there are just

not elements which the prosecution is to be at all

concerned with.

MR CHARLES: 

Yes, indeed, that is our point, Your Honour.

The last and related point I should make,
Your Honours, on section 17 is the wording of

subsection (5):

However, if there is such evidence, the onus

of establishing, beyond a reasonable doubt,

that those facts either do not exist or do not

constitute the defence lies on the

prosecution.

We say that supports the view that the prosecution

does not have to prove, in the first instance, an

offence against the laws of humanity.

Your Honours, they are not the only problems

involved in section 17.

DAWSON J: Just while you are on that, you would construe

that in favour of the accused, would you not, if

you were in any doubt abou_t its meaning?

MR CHARLES:  If there were any doubt, Your Honour, it is our submission - - -

DAWSON J: At least one can say that, there is doubt.

MR CHARLES:  But not necessarily the doubt that would assist

us, Your Honour, in a situation of difficulty. It
seems clear that the defence cannot query "raise"

but certainly rely on these defences in the

absence - - -

DAWSON J: You see, that denies Woolmingtons' case. Putting

insanity on one side, which is an anomaly in

criminal law, there really is not anything that is

Polyukhovich(3) 221 5/9/90

in the form of confession and avoidance because the

Crown has to prove the absence of self-defence,

provocation, whatever it may be. In that sense, as

was said yesterday, it becomes an element of the

offence. There is no real precision about the term

"element of the offence". Really, what we are

asking is, "Does the Crown have to prove it?", and

it would seem that taking a view of the section in

favour of the accused, yes, the Crown would have to

prove these things or the absence of these things.

MR CHARLES:  Your Honour, I accept that that is one possible

way the matter might be dealt with. We submit that

there are very serious difficulties about a court taking the view, in the light of the wording that has been used here, that the prosecution has to

establish that there was a crime against humanity

involved. One of the problems, Your Honours, about

the application of this section, to which I was

about to turn if I may go back to that, is that

section 17(2) talks about the defence being

permitted to raise the defence that the actions

were permitted by the laws, customs and usages of

war.

One of the difficulties of that is that the

laws, customs and usages of war have very little to

do with genocide. Indeed, on the classic

definition of "genocide" they have nothing to do

with it and in so far as one is looking at the, let

us say, acts in the course of a racial persecution

occurring in unoccupied France, the laws of war

have got no relevance at all.

So that, the question, if one had acts

committed in unoccupied France by German soldiers

against the civilian population - let us say by

civilians against other civilians in unoccupied

France, the laws of war have nothing to say upon

that subject and yet before one can raise the

defence that there is no crime against humanity one

has to show that these actions were permitted by

the laws of war.

BRENNAN J: The only way one can make 17(2) an element of

the offence under section 9 in the light of 17(4)
seems to me to be to make the presumption to which

Justice McHugh referred that all Acts which fall

within section 7 are acts which satisfy 17(2) and

that as a matter of fact seems to be not in

accordance with reality.

MR CHARLES:  Indeed, Your Honour. Now, if one has to show

both of these things, then one is in a situation

which is, with respect, a nonsense for the reason I

have given. If one treats the "and" as

Polyukhovich(3) 222 5/9/90

disjunctive, which does not seem easy to do, then one has to say that:

the laws, customs and usages of war -

refer to 7(1) in so far as there is a war-related

crime involved and in relation to (3) in so far as

it is a war-related crime. And, in so far as one

is outside that context and dealing with a crime

against humanity, then one has to deal with the

defence in (2)(b), so that they are separate, and

then one has the third situation which is that (3)

covers matters that were not crimes against
humanity and does the section have anything to say

about those at all? Is any relevant defence raised

in relation to the section in so far as it deals

with matters that were not crimes against humanity

as referred to in 6(c) of the charter.

McHUGH J: Does not section 17(1) really destroy the notion

that what is referred to in subsection (2) is by

way of an element of the offence because the

section is expressed to have:

effect for the purposes of a proceeding for an

offence.

It appears to be aimed at the procedure rather than

at the substantive elements.

MR CHARLES:  Yes.

McHUGH J: And you can test it this way: supposing the

defence call no evidence at all so that you only

had the prosecution evidence and there was a

conviction, could you say there was an issue

estoppel as to there being a war crime as

understood in the international law sense?

MR CHARLES:	No.
McHUGH J:	It would be difficult to s·ee how there can be an

issue estoppel as to that.

MR CHARLES: Yes, I accept that, Your Honour. I do not know

to what extent, like Mr Weinberg, my feet have been

burnt so far, Your Honours, but at the moment I

have got nothing more to say about section 17 and I

have some things to say about other parts of the

Act.

DEANE J:  If you look at the first charge in the current

information, it would seem that the Crown does not

see section 17(2) as constituting an element of the

offence in the ordinary sense and that all it says

is:

Polyukhovich(3) 223 5/9/90

did murder two -

unnamed -

Jewish men ..... during and in the course of the

occupation by ..... Germany -

and does not contain anything at all about

international law.

MR CHARLES:	If Your Honour has either the amended statement of claim or the booklet which is "Question reserved
for consideration", I hope that there will be the
same information shown. Your Honour, we would
accept that, although the information contains
charges which seem to be raised in so many
different ways that there will be enormous problems
with duplicity - - -

McHUGH J: Well, the first charge is, in effect, in three

alternatives.

MR CHARLES:	Yes.
McHUGH J:	Well, I was referring to the first alternative

which is:

did murder -

as I say,two unnamed Jewish boys -

which said offences were serious crimes within

the meaning of section 6 of the Act and were

committed:

(b) during and in the course of the occupation •.•.• of the Ukraine -

by Germany.

MR CHARLES:  Indeed, Your Honour, and if I may say so the fourth, (d), at the top of page 2. Now, our case

is that abominable as such a murder no doubt is, if

committed by a national of the Ukraine against

others in the Ukraine, and without a connection

with war or the occupying forces, then that would

not be a crime against international law

before 1945. So that either the first or fourth

would support the view that the prosecution

certainly saw no necessity to establish that

connection.

McHUGH J: Well, it is difficult to say, is it not, because

it speaks about:

and did thereby commit a war crime contrary to

section 9.

Polyukhovich(3) 224 5/9/90

MR CHARLES: Well, I accept that that is so stated,

Your Honour, but one would have thought that it was

necessary to raise the relevant facts for that

purpose, and so far as (b) and (c) is concerned,

there facts are clearly raised which would be

relevant to any definition of war crime.

McHUGH J: Yes, and they are the words, "and did thereby"

which seems to suggest that the preceding

statements constitute a war crime for the purposes

of the Act. These informations may not disclose

any offences against the Act.

MR CHARLES: Well, Your Honour, I have tried to keep away

from the fact as far as possible, and I certainly

do not lay my argument on the basis of the matters

appearing in the information.

McHUGH J: Should we decide a constitutional issue if it is

academic?

MR CHARLES:  Your Honour, we are certainly asking this Court

to decide. these issues. If my friends wish to say

it is academic, it is a matter for them.

Your Honours, may I pray in aid what - - -

DEANE J:  Mr Charles, just so we can get it right, the "and

thereby did commit a war crime" that Justice McHugh

referred to, was that not in the information that

was withdrawn, and is not in the current

information, or was I looking at the wrong

document?

MR CHARLES:  Yes, it did appear, Your Honour, in page 003 of the "Question reserved" booklet.

DEANE J: But it is not in the, what is said to be the

current information which is set out in the
schedule of the "Further amended statement of

claim".

MR CHARLES:  So far as information 1 is concerned,

Your Honour - - -

DEANE J: That was all I was looking at.
MR CHARLES:	- - - in the second line, in the opening

paragraph:

did commit a war crime within the meaning of

section 9.

DEANE J:  Yes. I saw that. I was querying whether there

was an allegation at the end:

and did thereby commit a war crime.

Polyukhovich(3) 225 5/9/90

seems to have - - -

MR CHARLES:  No, Your Honour. I think it has been

truncated, in effect, put back into the opening

paragraph.

McHUGH J:	I was looking at your further amended statement of claim, where you set out the charges.	Now, are
those charges accurately set out?
MR CHARLES:	I am sorry, Your Honour, they are the old ones which were part of the original information.	When

we discovered that, near to the last minute, the

Commonwealth had substituted new charges, we amended, but did not set them all out in full.

DEANE J: Yes.

MR CHARLES:  I am so sorry, Your Honour. Does Your Honour

appreciate that - - -

DEANE J: Yes, I have got it now.

MR CHARLES: 

In so far as the Commonwealth understanding

bears on this, Your Honour, page 36 of the
Commonwealth's submissions say, as to section 17

that:

It is not correct to say that the facts

relevant to a section 17(2) defence are the

same as those referred to in section 7.

Section 17(3) makes it plain that Parliament

had in mind defences depending on different,

or additional facts.

DAWSON J: That is not what the Director of Public

Prosecutions said.

MR CHARLES:	Yes, Your Honour, I understand that; those are the submissions of the Commonwealth or the
submissions in their first form.  Your Honours,
when one turns then to section 13, what we are
particularly concerned to deal with here is
section 13(2)(f). That is:

this Act has effect -

I am reading from the body of section 13(2):

Where a person is charged with an offence

against this Act, then, for the purposes -

then set out, and -

(c) a proceeding connected with such an

exercise of jurisdiction •.•.. the Act has

Polyukhovich(3) 226 5/9/90

effect, in relation to an act that is, or is

alleged to be, the offence, as if:

(f) without limiting subsection 6(2), all

defences under the law in force in that State

or Territory when the person is charged with
the offence had been defences under the law in
force in that State or Territory at the time

of the act.

Now, Your Honours, as we understand it, that

means that when one comes to deal with defences the

accused person will have available the defences

that are permitted by the State or territory in

which that person happens to be resident at the

time when charged and while there is provision for

a change of venue that is plainly related to a

question of residence. The short point we want to

make in relation to that, Your Honours - and it

needs to be short because this at least is a point

that would be capable of being cured by a

comparatively simple amendment - is whether what

the Commonwealth has done by this subsection in permitting, in effect, eight different types of

defences to be raised is also permissible under the

Constitution?

For example, Your Honours, if one takes the

crime of murder, there are different defences

obtaining in differing States. In relation to insanity, diminished responsibility, duress or

provocation some of the States are Code States,

some are common law and, we submit, what has

happened therefore is that in relation to defences
not a matter of procedure the Commonwealth has

chosen to apply in one Act eight different types of

law.

Now, we would question, Your Honours, having

regard to Chapter III, whether federal judicial

power is indivisible and must be uniformly applied.

Can I ask the Court to contemplate, say, the federal court which is not a relevant court, but

of conspirators in relation to offences against the	suppose the federal court were dealing with a group	Companies Code, could Parliament legislate so that
the federal court in dealing with those prisoners who happen to come from different States, say, that
a Victorian defendant should have one set of
defences whereas a New South Wales defendant should have different defences and could, similarly, one Commonwealth Act, say the Copyright or Patent Act,
say that a person resident in Victoria shall have a
particular defence by virtue of his residence in
that State.

Polyukhovich(3) 227 5/9/90

Now, Your Honours, we do not see point in

spending much time on this because, as I have said,

it is a matter which is capable of being cured by amendment, but we would submit that as the Act is presently framed this is not something permitted by

the Constitution and we would submit that there is

an implication, or an implied restriction, in

relation both to Commonwealth legislative power
that it would not, in that respect, pass

legislation impacting differently on the residents

of different States - - -

McHUGH J: But Sl(ii) of the Constitution is against that,

is it not, because it talks about, but so as not to

discriminate between States or parts of States in

section 99?

MR CHARLES:  We would submit, Your Honour, that it says nothing about this particular submission.

McHUGH J: No, but it is dealt with specifically.

MR CHARLES:  We would make then the separate submission,

Your Honour, that in so far as this is the

investiture of federal and judicial power under

Chapter III that that also requires a uniform

investiture of power and does not permit that

division to occur.

Now, Your Honours, I do not see point in

prolonging that submission for the reason I have

given but we simply make it. It seems, we would

submit, a very odd result that one could have

persons with quite different offences in the manner

that we have put to the Court.

DEANE J:  Of course, in theory, it would seem that you could

be charged in the State in which the acts alleged

were not and had never been a serious offence. I

mean, offences such as indecent assault and rape or

wounding.

MR CHARLES:	Your Honour, if the situation was that the offence is not now and never was an offence, then
presumably the accused would be entitled to the
benefit of section 6. As I understood the way in
which this was put to the Court on Monday, it was
suggested that by reference to section 6(2) in looking at the law at the time the offence was
committed.

DEANE J: No, but presume that the acts were an offence of

that kind in some parts of the country but would

not amount to rape or indecent assault in the place

where he was charged, you could have a position

where what he was charged with was not and had

never been a serious offence or conceivably even an

Polyukhovich(3) 228 5/9/90

offence under the law of the place where he was

charged .. Perhaps you would say that was a defence,

I do not know.

MR CHARLES:  I must say, Your Honour, I have found section 6

extremely difficult to understand. It appears to

be definitional:

An act is a serious crime if it was done in a

part of Australia and was, under the law then

in force in that part, an offence, being -

one of those set out and then:

(2) In determining ..... whether or not an act

was, under the law in force at a particular

time in a part of Australia, an offence of a

particular kind, regard shall be had to any

defence under that law that could have been

established - As I follow the argument that was put on Monday,

what was being said was that if there was any part

of Australia that gave you a defence you were

entitled to that. we would submit that it is by no

means obvious that that is the proper
interpretation and on the contrary that if one can

find any part of Australia where the act was a

serious crime then one looks at that part and

defences in that part under subsection (2). So

that on that construction which, we would submit,

is the more likely construction, the defendant gets
the worst of every world and then, when one comes
to the question of charging, one looks at the law

in the place where the person has been charged and

looks at defences in that place, at that time.

McHUGH J:  I suppose it is unlikely to occur but by virtue

of the combination of section 6(3) and 13(2) you

could have a situation where there were no defences

to the charge in the place where you were charged

because it was not an offence there but, on the

other hand, it was still a serious crime for the

purpose of the Act.

MR CHARLES: Indeed, Your Honour, yes.

BRENNAN J: Looking at section 6(6), which disregards local

authority to commit the act at the relevant time,

how does that accord with international law and its

definition of crimes against humanity?

MR CHARLES:  My understanding, Your Honour, is that what

that is intended to say is that the fact that, say

by the law of the Ukraine, the present plaintiff

might have been entitled or required to act in the

Polyukhovich(3) 229 5/9/90

way that he is alleged to have acted would be no

defence and is disregarded. That, I think, we

would accept provided that the offences are within

the definition of international law crime at that

time. We would accept that the fact that one was

permitted to act that way domestically would be

irrelevant.

BRENNAN J: International law has a provision, as it were,

similar to the operation of 6(6)?

MR CHARLES: For the moment, Your Honour - I will check it

during lunch but my understanding of international

law is, for example, the fact that the Germans

would have permitted persons to act in that way

could not be treated under any reasonable

international law as being of any relevance to the
international obnoxiousness of their particular

crimes.

Your Honour, the next matter in the Act to

which we desire to take the Court is section 13(5).

Your Honours, what that section does is to provide

a means of application for a stay. It is something

which arises on trial and it involves the accused

attempting to satisfy the judge on the balance of

probabilities of three things: the first is an

ability to obtain evidence that that person would,

but for the lapse of time or other reason, have
been able to obtain; secondly, that that has

substantially prejudiced or will substantially

prejudice the preparation or conduct of the

defence; and, thirdly, that the interest of

justice require the making of an order.

Your Honours, it would be our submission, that

what this has done, far from being the very

generous handout which it has been suggested by the

Director of Public Prosecutions is involved, is a

codification of the entitlement to obtain a stay

which substantially reduces the entitlement a

person would otherwise have had to invite the Court

to exercise a power to stay. I certainly do not mean, by that submission,

to invite the Court to consider again its decision

in Jago. I am not seeking, Your Honours, to

suggest that there is any right to a speedy trial

involved. If I may come, separately, later to

questions of what is involved in the declaration of

human rights and various charters. The purpose of

this submission is that ordinarily one would have a

right to come to a court to ask for a stay.

Ordinarily, Your Honours, one would be entitled to

say that in some circumstances the very lapse of

time of itself has produced so much delay that a

Polyukhovich(3) 230 5/9/90

trial would be unfair and would bring the

adminstration of justice into disrepute.

For support for that submission, may I simply

direct Your Honours to what Your Honour

the Chief Justice said in Jago's case, 168 CLR 23,

at page 34.

Where delay is the sole ground of complaint,

an accused seeking a permanent stay must be

"able to show that the lapse of time is such

that any trial is necessarily unfair so that

any conviction would bring the administration

of justice into disrepute".

In other words, there may be circumstances in

which the delay is so substantial - and, of course,

in this case they were dealing with a question of a

mere 10 years or so of delay, troublesome enough

though that was to the Court - that it is

impossible to obtain a fair trial. Now,

Your Honours, what is apparent on the face of this

legislation is that Parliament intends persons who

committed an offence up to 51 years ago should be

dealt with by our judicial system for those

offences.

It is difficult to imagine any better case - I

do not say every one would be this - where the very

delay of itself must produce an unfair trial than a

delay of more than 50 years. Given that the

biblical expectation of life is three score years

and ten, there are not many offences that are going to be convicted before the age of 19 that are left.

Now, Your Honours, what this Act has done, if

this is a codification of the right to seek a stay,
is to say that you are not entitled to rely on the

mere lapse of time. The Court is to be required to deal with the charge even though up to 51 years may

have passed and you are only able to obtain a stay

at the discretion of a judge provided that you can

establish that you have been unable to obtain

evidence.

TOOHEY J: If you are right, Mr Charles, in that submission,

what consequences does it have for the validity of

the statute?

MR CHARLES: It means this, Your Honour: in the first

place, we would submit, the first question is

whether, on any view, this can be a proportionate

or appropriate response to any power in the

external affairs.

McHUGH J: Well, can I take you to the question of

construction. It may be that subsection (6) does

Polyukhovich(3) 231 5/9/90

have some real scope. What about

subsection (4)(b), does that not preserve the
general power to take action to prevent an abuse of

process?

MR CHARLES: Well, Your Honour, one thing, we would submit,

that this Act as a whole must do is to indicate

that Parliament contemplates that persons will be

dealt with for offences of not less than 45 years'

duration ago up to 51 years ago. The whole

implication of the Act is that you are not entitled to a discretionary stay on the ground of passage of time.

MCHUGH J: But it says:

Nothing in Part II shall be taken to exclude,

limit or otherwise prejudice ..... any of the
powers of a court ..... including ..... the powers
of a court to take action to prevent an abuse

of process.

Why does that not apply?

MR CHARLES: Because, Your Honour, at this particular point

one is referring to "Nothing in Part II" and this

is in Part III; it is a provision in Part III.

McHUGH J: Yes, but it also says "subsection 9(1)" and that

is the critical section.

MR CHARLES:  I accept that, Your Honour, but we would submit

that there is nothing in any part of subsection (4)

which would answer the argument that subsection (5)
which follows is a code in relation to the stay.

McHUGH J: What about subsection (6)?

MR CHARLES:  Your Honour, I cannot give any answer to that other than the one from Mr Weinberg yesterday.

TOOHEY J: Well, whatever the answer ·to the question of

construction, again what implications does that

have for the constitutionality of the statute?

MR CHARLES: Your Honour, the first answer we make is that

this Act must in the first place be an appropriate

and proportionate response to any demand the

external affairs power may raise, or any scope it

may have for operation.

The second we make is this: if the effect of

subsection (5) is to require the Court to hear
actions notwithstanding that 51 years have passed,

in other words that that simple ground is not
sufficient to make an application for a stay, then,

Your Honours, the Court is in effect being required

Polyukhovich(3) 232 5/9/90

to hear something which, in our submission,

involves the Court being required to act,
notwithstanding that there is unfairness to the
defendant on the hypothesis I put; notwithstanding

that the trial may bring the administration of

that submission be good, whether Parliament is	justice into disrepute. And we would question, if
entitled to require our courts to act not as a
court, to act in a way which, in effect, betrays
the judicial power.

If the Court is being required to deal with

matters which involve inevitable unfairness to the

defendant, we question whether there is a proper

investiture of judicial power.

TOOHEY J: Would that submission hold good if we were

dealing with a domestic statute?

MR CHARLES:  Yes, it would, Your Honour. It is quite

TOOHEY J: In a sense this is, but using that term loosely.

MR CHARLES:  Yes.

GAUDRON J: What you say in that is that these inherent

powers are there because they are necessary, and if

you take away what is necessary, what you have is

something less than judicial power.

MR CHARLES:  Yes, Your Honour, exactly.

DEANE J: They may not hold good if what was involved was

the direct punishment of an offence against

international law in that if, for example,

Australia had been an original party to the London

Convention setting up Nuremberg, it would be
debatable that what was involved there was the

judicial power of the Commonwealth as distinct from

some other sort of judicial power.

MR CHARLES:  Your Honour, I accept that that would produce

added difficulties - - -

DEANE J: I was not suggesting it was against you in this

case.

MR CHARLES: Yes. Of course, the argument we are making is

that there is retroactivity and that by

international law there would be no expectation

that persons would be dealt with for offences

having the width of those characterized in

section 7.

DEANE J: But that is a different aspect?

MR CHARLES:  Yes, yes.

Polyukhovich(3) 233 5/9/90

DEANE J:  Does not all that mean though that the point

Justice McHugh raised with you as to the continued

operation of subsection (4)(b) that it is a very

important one on this aspect of the case?

MR CHARLES:  Yes, Your Honour, it does indeed. Now, as the

Solicitor-General has said, one has to make this Act work. If one can find an abuse arising from

the very thing that the Act requires of the courts,
that is to hear charges arising more than 45 years

ago, one would be, it is submitted, in very great

difficulty in putting to a magistrate, "Look

45 years have passed, you cannot possibly have a

fair trial" if one were, for example, taking the

line that Lord Shawcross took in the House of Lords

in opposing the passage of their War Crimes Bill,

"Identification is at the route of all these

charges", one cannot possibly have proper

identification after that length of time. It is

submitted that what this Act does is quite directly

to require courts to hear charges more than

45 years ago and in so doing is saying to the

court, "Well, you have still got an entitlement to

deal with abuse and if the prosecutor acts

improperly in relation to abuse; if the prosecutor

does any of the things other than bringing these

charges in relation to acts more then 45 years ago,

then you can deal with it for abuse, but in
relation to delay then that matter is covered by

the Code in section 13(5)".

DEANE J: But that seems to be inconsistent with

subsection ( 6 ) .

MR CHARLES: Well, if one is trying to find a meaning,

Your Honour, for an Act which is requiring - one of

the things about subsection (6) is that it says:

Nothing in subsection •.••• (S) limits the generality of anything else in those

subsections.

Indeed, however it does explain, quite expressly,

that you have got to establish that you are unable	to obtain evidence. It does not say, for example,
that because you have had difficulty in testing the
prosecution's case after the best part of 50 years
that that has any bearing upon your entitlement to
a stay and, of course, the onus is on you to show
that you would have been able to get relevant material and the tests required by (5) are cumulative.

But whatever implications may draw from either

subsections (4) or (6) what it submitted is clear, is that the courts are being required to deal with matters which were occurring not less than 44 years

Polyukhovich(3) 234 5/9/90

before the time when the Act was passed and going

back to 1939 up to 51 years.

DEANE J: But one can envisage circumstances where that may

not be unjust or call for a stay. I mean, say for

example, there had been a continuing course of

conduct in a country where the accused continued to

have control. I would not find it abhorrent to

think that 45 years later people get their hands on

him - - -?

MR CHARLES:  Your Honour, if I may say so, there may be

plenty of examples of that kind. If, for example,

the accused admitted complicity -

DEANE J: Most of them.

MR CHARLES:  Then, clearly. The only point we are seeking

to make, Your Honours, is that while there may be

cases of that kind, it is inherently likely that

most of the matters that will come before the Court
will raise critical difficulties of identification

and will not involve admissions of guilt.
Therefore, for most of the cases, a critical
question will arise of the effect of a delay of
49 years, the.difference in the appearance of the

persons, the ability of witnesses to remember what

happened.

DEANE J: But that might just give a much wider scope

to (4)(b) than some people may have anticipated.

MR CHARLES: Well, Your Honour, one construction of

subsection (4)(b) which, we submit, is open and

likely, is that the mere passage of time is removed

from the question of the Court's discretionary
power by section 13(5), that questions of abuse in
subsection (4)(b) are related to matters other than
that simple passage of time, such as unfair actions
on the part of a prosecutor or matters of that

kind. Your Honours, that is all I wish to say

about the interpretation of the Act and after that

excursus, may I go back to the questions of

international law?

We have submitted to· the Court that it is

necessary on the authorities to find this direct
connection with the first or second of the

compendious collection of offences in article 6 of

the charter and may I refer the Court to various

authorities briefly to establish both the necessity

for that connection, that the connection involves a

notion of State-directed atrocities carried out in

connection of war and that isolated acts were not

covered in the concept of crimes against humanity.

Polyukhovich(3) 235 5/9/90

Your Honours, I have referred to the

tribunal's decision in materials book volume II at

page 34. May I refer the Court to the Hetherington

report - I do not propose to ask the Court to go to

any of these, I will simply give the references -

in materials book III at pages 167 to 170; to

Dr Schwelb's article on Crimes against Humanity and

in that long article virtually the whole of

pages 201 to 221 bear on this; to the decision in

re Altstoetter in materials book II, page 35 and,

in particular, at page 38; to the decision in List

which is materials book II at page 43 and may I

give the Court a particular reference in Schwelb to

pages 205 and 220.

Your Honours, there is one matter to which I

should make specific reference in the law at this

time, certainly because it was relied on yesterday

by my friend Mr Burmester, and that is Control

Council Law No 10 which was the provision by which

a number of lesser accused, other than the major

war criminals dealt with the by Nuremberg Tribunal,

were dealt with in Germany. Control Council

Law 10, Your Honours, was the provision under which

the Altstoetter defendants were dealt with - that

is in materials book II at page 36. The

significance of Control Council Law No 10,

Your Honours, is that the occupying forces came into Germany after the war with a total break down

of authority and at that time imposed what was, in

effect, domestic law for the purposes of dealing

with the defendants they had before them.

Now, in particular, Your Honours will see that in Dr Schwelb's article in materials book II at

page 230. The Control Council Law No 10,

Your Honours, is set out in materials book III at

pages 184 to 185 and the Court will see that it

does not contain the phrase which appears in

article 6(c) of the Nuremberg Charter, the

expression "in connection with" one of the earlier

two sets of crimes. Your Honours will find Control

Council Law No 10 dealt with by Dr Schwelb at

pages 230 to 232 and, again, at pages 239 to 240.

McHUGH J: What do you seek to make of this? I mean, one

surprising aspect of it is that Control Council Law

No 10 seems to be more comprehensive in its

application to minor criminals than in relation to

the major war criminals.

MR CHARLES: Yes, indeed, Your Honour, and the explanation

for that appears at the bottom of page 232 of the

article to which I have just been referring.

Polyukhovich(3) 236 5/9/90

If I could start, Your Honours, with a passage beginning at point 3 of the page, Your Honours will

~~ that:

it is not necessary for an act to come under

the notion of a crime against humanity within

the meaning of Law No 10 to prove that it was

committed in execution of, or in connexion

with, a crime against peace or a war crime.

Owing to this difference between the

Charter on the one hand and Law No 10 on the other, the whole jurisprudence evolved in the

Nuremberg proceedings with a view to restricting crimes against humanity to those

closely connected with the war becomes
irrelevant for the courts which are dealing or

will be dealing with crimes against humanity

under Law No 10. At first sight it seems

rather startling that the law applied to major

war criminals who are tried under the Charter

shoul.d be less comprehensive and therefore

less severe than the law applied to not-so-

high-ranking perpetrators. In reply to this

objection it may be said:  (a) that the

objection is a theoretical and doctrinal one
only, because the major war criminals were

certain to be caught in the net of the law in

spite of the qualification contained in

Article 6(c) of the Charter; (b) that the

striking difference in the texts of the

Charter on the one hand, and of Law No 10 on

the other, does not permit of any other

interpretation; (c) that the difference

between the Charter and Law No 10 probably

reflects the difference both in the
constitutional nature of the two documents and

in the standing of the tribunals called upon

to administer the law. As we have attempted

to show, the International Military Tribunal

is, in addition to being an occupation court

for Germany, also - to a certain extent - an

international judicial organ administering

international law, and therefore its

jurisdiction in domestic matters of Germany is

cautiously circumscribed. The Allied and

German courts, applying Law No 10, are local courts, administering primarily local

(municipal) law, which, of course, includes

provisions emanating from the occupation

authorities.

So that, Your Honour, it was the exercise of what

was treated here as domestic and not international

law that occurred in relation to law No 10 because,

in that respect, the occupying forces were the then

internal controllers of Germany.

Polyukhovich(3) 237 5/9/90

Your Honours, it is obvious that major changes

occurred after the war and in response to the

wording of the Geneva Conventions and the Genocide

Convention 1949. The Court has been referred to

them and Australia immediately subscribed to the

Genocide Convention and that is now found in our
Genocide Convention Act.

Your Honours, there is no question that all of these conventions spoke prospectively. It has

never been suggested that they were retrospective

in their operation. For example, Your Honours, we

refer to the Deschene Commission report in

materials book volume III at pages 141 to 143.

We refer Your Honours in that regard to what

was read to the Court from Mr Kuntz, in the opening

of this morning's hearing, at page 741 to 742.

Now, there is a passage, Your Honours, in the work

contained in Professor Brownlie's chapter to which

I should refer before leaving this subject. It

appears at materials book III at page 95, and,

Your Honours, in the left-hand column on page 95,

Professor Brownlie says of:

Resolutions of the United Nations General

Assembly -

that of -

The law making role of organizations ..... In general these resolutions are not binding on

member states, but, when they are concerned

with general norms of international law, then

acceptance by a majority vote constitutes

evidence of the opinions of governments in the

widest form for the expression of such

opinions. Even when they are framed as

general principles, resolutions of this kind

provide a basis for the progressive

development of the law. and the speedy

consolidation of customary rules. Examples of

important 'law-making' resolutions are the

Resolution which affirmed 'the principles of international law recognized by the Charter -

Your Honours, that is resolution No 95 of

December 1946 which the Court has been taken to in

the materials:

which affirmed 'the principles of

international law recognized by the Charter of

the Nuremberg Tribunal and the judgment of the

Tribunal'.

Now, Your Honours, I want to turn briefly to

how one establishes a customary obligation at

Polyukhovich(3) 238 5/9/90

international law. We submit that there are two

necessary elements in this, and the first of these i& State practice, and the second is opinio juris.

Arid, in our submission, what is established by the

international court cases and the authorities is

that the conditions are strict before such

customary law can be established.

We rely, Your Honours, on Professor Brownlie's

work, Principles of Public International Law. It

appears in volume III, and in particular,

Your Honours at pages 90 to 95 of volume III.

Professor Brownlie deals with State practice at

pages 90 to 91, and opinio juris at pages 91 to 93.

Next, Your Honours, in Dr Akehurst's work,

Custom as a Source of International Law - that

appears in volume IV - and there is a lengthy

passage, Your Honours, which begins at page 21 and

finishes at page 47 of volume IV. He deals with

practice at pages 21 to 36, and opinio juris at
pages 36 to 47, and there is a summary of his

conclusions on both matters at page 47 of

volume IV.

Now, Your Honours, we refer to the following

cases in support of what we say is the strictness
of the tests necessary to establish a binding

customary obligation: the Asylum case - I will

have to produce this after lunch, Your Honours. It

is referred to in our list of authorities as, I

think, case 18.

McHUGH J: Seven, I think.

MR CHARLES:  I am so sorry, Your Honour. In any event, the

relevant passage appears at pages 276 to 277.

MASON CJ: Seven may be our numbering, the Court numbering,

rather than yours, Mr Charles, but that is the

number by which we know it.

MR CHARLES:

I am sorry, Your Honours, I thought that I had

· this in my materials case book but may I, simply

for the moment, if Your Honours have copies of the

case, give a page reference at pages 276-277.

BRENNAN J:	What is the citation of this, did you ever say?
MR CHARLES:	I regret, Your Honour, that I am not able to

produce it at the moment.

MASON CJ: Perhaps you could do that after lunch,

Mr Charles.

MR CHARLES:  I can give it now if it would help.

Polyukhovich(3) 239 5/9/90

BRENNAN J:  I think it is the 1950 International - - -

MR CHARLES:  International Court of Justice Reports. Yes,

Your Honour.

MASON CJ:	Mr Charles, I take it that the progress has not been so rapid this morning as to lead to a hope
that the case will conclude this afternoon.
MR CHARLES:	I am afraid I have not been lightning in my

responses, Your Honour, no.

MASON CJ:  How long do you think the balance of your

argument will take?

MR CHARLES:  Your Honour, I find that very difficult to

answer.

MASON CJ: Yes, I appreciate the difficulties but if you

could give us, as it were, your best guess.

MR CHARLES: It is not inconceivable that I could finish

this afternoon. I propose to deal with the matters

without copious citation of authority and largely

from first principles. It is possible that I could

finish but that will depend on how I perform in my

viva.

MASON CJ: Very well, we had better review the matter at

4.15 pm.

MR CHARLES: Yes, Your Honour.

MASON CJ: Yes, Mr Solicitor.

MR MASON:  Your Honour, the issue that was raised this

morning about which I got some advance notice

yesterday concerning the indivisibility of the

federal judicial power was one that has not been

covered by any 78B notice. It is one that may have

some significance consequences with respect to the

cross-vesting scheme, that aspect of it which vests

State power in federal judicial courts.

My present feeling is that it is a point on which I would wish to assert the 78B requirement

that there be an opportunity to respond to it.

MASON CJ: Yes. Well, the likelihood is that we will not

finish this afternoon and that will give you an

opportunity in any event. If we do not finish this

afternoon then the matter will be relisted as soon

as conveniently possible without occasioning unfair

disruption to cases already listed for hearing. We

will now adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

Polyukhovich(3)	240	5/9/90
UPON RESUMING AT 2.17 PM:
MASON CJ: Yes, Mr Charles.

MR CHARLES:  Your Honours, may I give the Court a further

reference to a work by Mr Sydney Goldenberg

entitled Crimes against Humanity, 1945-1970, (1971)

10 University of Western Ontario Law Review 1. It

reaches conclusions which are to the same effect as

those of Dr Schwelb. Your Honours, I only have one

copy of that; I can make copies available to the

Court if that would be helpful.

MASON CJ:	I think you could do so, Mr Charles.
MR CHARLES:	Yes, if the Court pleases. Now, Your Honours,

I was seeking to put to the Court the authorities which established the strictness of proof necessary

to establish a customary international law

obligation.	I had referred the Court to the Asylum
case at pages 276 to 277.	May I also refer to the

decision of the International Court in the North

Sea Continental Shelf case. That appears in

volume IV of the materials book and the relevant

passage appears at pages 127 to 128 and the next

case to which we would refer Your Honours

immediately follows it; that is, the judgment in

the matter of Nicaragua, which appears also in

volume IV at pages 133 to 134.

Now, Your Honours, so far as the North Sea

Continental Shelf case is concerned, the particular

paragraphs to which we would make specific

reference are paragraphs 73 and 74 and in the

Nicaraguan udgrnent, paragraphs 184 to 186.

Your Honours, may we follow those references

to two English cases. The first is West Rand

Mining v R, (1905) 2 KB 391 at page 407 and,

secondly, Your Honours, Compania Naviera Vascongado

v SS Cristina, (1938) AC 485 at page 497.

TOOHEY J:  What is meant by strictness of proof in this

context, Mr Charles?

MR CHARLES:  In this context, Your Honour, what we mean is

that the courts have said with some force that, "We require strong proof". It is not sufficient simply

to find - or will not usually be sufficient to find

one example of State practice. It is necessary to

find, usually, a series of actions and taken with

it clear evidence that the action in question was

taken by a State out of a sense of obligation; the

fact that it was obliged to do so rather than out

of courtesy, good manners; the fact that it wanted

Polyukhovich(3) 241 5/9/90

to at the time; a matter, in other words, of

obligation, the opinio juris et necessitatis.

MASON CJ: What is the best of these statements, from your

point of view?

MR CHARLES:  The best, Your Honours, would be the

Continental Shelf and the Nicaraguan judgments.

TOOHEY J:  I take it none of the judgments say that proof

has to be found, as it were, in a particular

source.

MR CHARLES:  No, Your Honour, indeed not. They accept that

there may be a variety of different methods of
establishing this. For example, if one were to

find France asserting that somebody else was bound

towards France in the International Court, that

would plainly be strong evidence that France

regarded it as a matter of obligation as against

it. On a number of occasions it has been said that

it is not sufficient simply to participate in a

United Nations resolution, for example. They are

recommendations, they do not have any binding

force in so far as establishing international law

is concerned with some exceptions, like the

one - - -

TOOHEY J:  In some of the cases that you gave us, is the

result that the case failed because of inability to

establish international law?

MR CHARLES:  Yes. Your Honour will find that both in the

North Sea Continental Shelf and the Nicaraguan

judgments.

TOOHEY J: Thank you.

MASON CJ: In the latter, Mr Charles, the statement is made:

The Court must satisfy itself that the

existence of the rule in the opinio juris of

States is confirmed by practice.

MR CHARLES:  Yes, Your Honour.

MASON CJ: What is meant by the word "practice" in that

context?

MR CHARLES: Practice, Your Honour, as I understand it,

involves positive actions by the State in addition

to the opinio which is the sense of obligation,

that it has been put into practice.

MASON CJ: Yes.

Polyukhovich(3) 242 5/9/90

MR CHARLES:	In any event, Your Honours will find the matters to which we have just referred dealt with
i~ detail and examples of what is practice and what
iS.:the necessary opinio given both in Brownlie and Akehurst, and the passages I referred the Court to
before lunch. There are a number of examples given
in those cases, Your Honours.
May I add a reference to Queensland v Commonwealth, 167 CLR 232. It was referred to by
our friends yesterday and we would submit,
Your Honours, that the passage at pages 239-240
shows that the Court would follow the process which
the International Court has indicated is required
in looking to whether a conclusion can properly be
drawn that a customary obligation is to be found.

MCHUGH J: That passage deals with the construction of a

convention, does it not?

MR CHARLES:  Not if I have got the right reference,

Your Honour. I hope - - -

MASON J: That is dealing rather with a conventional rule,

is it not, as distinct from a customary rule?

MR CHARLES: Yes. What the Court says, Your Honours, at

239 point 6:

The existence of such an international duty

must be decided as a matter of fact, though

this Court has no jurisdiction the exercise of

which can affect the existence under

international law of any purported obligation

imposed on Australia.

And then, Your Honours, at page 240 - I accept, of

course, at this question that the Court is

concerned with the construction and operation of a

convention, but what we referred specifically to,

Your Honours, is the passage on page 239 first

read.

McHUGH J: But the question of proof of customary law is in

a different area, is it not, because you have to

show settled practice, and you have to show that

the Acts which constitute that settled practice

have been done in the belief that they are

fulfilling an international obligation.

MR CHARLES:  Yes, Your Honour. All I am really saying is

that the Court, in seeing whether an Act has

constitutional validity would, we would submit, by

analogy or by parity of reasoning, look to those

who assert the validity of the Act to put forward

the necessary proof. In other words, to the

extent that the Commonwealth was relying upon a

Polyukhovich(3) 243 5/9/90

customary obligation, it must be a matter for the

Court to establish it to the satisfaction of this

Court.

McHUGH J: Are you going to say anything about how

widespread the settled practice must be?

MR CHARLES:  we are certainly, Your Honour, going to deal with the evidence, yes. The conclusions that we

will ultimately put to the Court is that there is

no evidence whatever that would support any

customary obligation to prosecute war criminals in

Australia. We will submit that there is no

evidence of State practice as opposed to some

evidence of isolated cases of action, for example,

in Canada, West Germany and Israel, and we will

submit that there is no evidence of the sense of

obligation required in opinio juris.

MASON CJ:	How extensive must the practice be in order to qualify as a customary rule?
MR CHARLES:	It is difficult to answer that, Your Honour,

with precision. What the authorities seem to say

is that while it will not be necessary in every

case to show extended practice over a period of

years, in some cases, practice over a short period

of time will be sufficient. We would submit that

the conclusion the Court should draw is that where
there is a matter of doubt, as we would submit

there is here, the Court would need convincing

evidence that the matter of obligation had been

acted upon over a convincing period of time,

sufficient, at least, to convince this Court that

there was practice giving rise to that sense of

obligation.

McHUGH J: Not practice giving rise to to the sense of

obligation but a practice as a result of a belief

in an obligation?

MR CHARLES: Indeed, but we accept, Your Honour, that in

some cases once can infer the sense of obligation
from a settled course of practice.	We would submit

that there is no evidence before this Court that

would justify a conclusion of itself that anyone

has demonstrated the relevant sense of obligation.

What we will submit is that when one looks at both

the United Nations resolutions and the isolated

instances of activity, one finds that a number of

States - a very few States - have acted to try

people on their own territory in relation to

offences committed outside.

We would submit that that sort of action, certainly in the case of Israel, comes not from any

Polyukhovich(3) 244 5/9/90

sense of obligation or opinio but for quite

obviously different reasons.

McHUGH J: ··-no the materials contain any evidence showing the

motivation for various States ac·ting in the way

they have?

Your Honour, the best material to which I can

point the Court is the conspectus that appears at

the end of the Hetherington report where the Court

will recall that there is a discussion of the

actions taken by a variety of different countries

which demonstrates that there are, I think,

something like six European countries which have

dealt with people; that is, the Soviet Union,

France, Germany, Belgium, the Netherlands,

Yugoslavia and at least as far as two of those are

concerned, I think that is Belgium and Sweden -

that is one additional one - no longer deal with
these matters on limitation grounds and at least

two of those countries have limited the matters to

which trials can now be brought to murder. Outside

that collection, Your Honours, one then finds

Canada and Israel, which have dealt with people for
crimes committed outside their borders; Australia,

which is now contemplating doing so and the

United Kingdom which has introduced legislation but which has not yet brought it to fulfilment.

Now, Your Honours, so far as countries have

acted in relation to those who have committed

crimes within their own borders are concerned and,

in France, the Klaus Barbie case, of course,

relates to crimes committed in France. We would

submit that that does not indicate any evidence of

a sense of obligation as a matter of international

law but a natural enough desire to bring punishment

or retribution for crimes committed in the

territory of the places in question. The one

possible exception to that might be Germany.

So far as Canada is concerned, the Court will

find some assistance in deciding what sense of

obligation or otherwise is involved in the

Deschenes report. So far as England is concerned,

one sees some assistance to be gained from the

Hetherington report and we drew the Court's attention this morning to the opening passages appearing in Mr Menzies' report and

Sir Thomas Hetherington's report. What we say can

be gleaned from those passages is that it is not a

sense of obligation at international law which has

caused these countries to act; it is a response to

a pressure very naturally brought to bear from
within the countries in question by those who, one

might say, with every justice, would like to see

these people forced to face retribution. We would

Polyukhovich(3) 245 5/9/90

say, Your Honours, that has got nothing to do with

any sense of international obligation.

McHUGH J:  Would parliamentary debates in this case throw

any light on - - -

MR CHARLES:	I am sorry, Your Honour?
McHUGH J:	Do the parliamentary debates in respect of this

legislation throw any light on the motivation -

MR CHARLES:	Your Honour, may I answer first in relation to the second reading speech and the explanatory
memorandum.  We would submit that one might have
expected if this legislation was said to be response to an obligation that there would have
been some mention made of that fact and the second
reading speech would have been a perfect place to find it mentioned.

We submit that the very absence of any

reference to any such obligation is telling in that

speech. The memorandum contains no mention of any

such obligation. Indeed, the second reading speech
says absolutely nothing about international

concern. The only mention of concern is in

relation to the use of the noun in the preambular

section to which attention was directed this

morning and, again, which does not say whether the

concern is international or domestic.

We would submit that when one looks at the

passages that can be found by way of example in the

Hetherington and Menzies' reports, what the Court will see is that the concern is a domestically

expressed concern by people having a common affinity

in a variety of different places throughout the

world and every justification for taking the views they do but, none the less, in a way that we would

respectfully characterize as not being international

in the sense of as between nations.

Your Honours, may we pass to the question now

whether there is in fact any international

obligation. It would be our submission that what

the documents establish and the material before

this Court establishes, is a consistent recognition

by all nations, or most, that the countries where

the acts in question have been committed is, as a

general rule, the place where the perpetrator

should be punished. And, of course, for this

purpose extradition is a prerequisite save in cases

where the culprit is actually found and arrested in

that country.

Now, Your Honours, in other words if there

were obligation, what one would expect to find

Polyukhovich(3) 246 5/9/90

first is an obligation to extradite being alleged

by countries, for example, against Australia; you
h~ve got war criminals on your territory, you

should extradite them to us, and a response by

Australia to that claimed international obligation.

One would expect, Your Honours, that if that

request for extradition failed that the response
then would be a request, "Well, if you are not

going to extradite him to us you must deal with him yourself". Now, of course, there is no evidence of that kind at all.

The Commonwealth has, at the forefront of its

case, conceded that the whole question of

extradition is discretionary and we would submit

that that is a concession of great significance

when one is looking at an alleged customary

obligation to extradite or try. The very fact that

it is conceded you do not have to seems to suggest

that there is no such obligation.

Now, the next matter, Your Honours, to which

we point is the Menzies report. Your Honours, the

Menzies report - the extract from it appears in

volume III of the materials book and what

Mr Menzies said is dealt with at pages 150 and

following. In other words, Your Honours, this

Government's legal advisers have dealt with the

matter and the Court will see at page 151 point 9,

paragraph 16.6.

On this aspect, the Attorney-General's

Department has furnished an opinion which

appears as Attachment 'C'. The

Attorney-General's Department concludes that,

for the reasons given, these instruments -

that is the ones referred to immediately above -

no longer have direct application in relation

in
to the extradition of war criminals any legal obligation at international law to

extradite. The Attorney-General's Department

also concludes that, apart from the question

whether Australia has international

obligations arising from these instruments,

the Government's power to extradite under

domestic law is probably limited to that

provided by the Australian Act or the

Extradition (Commonwealth Countries) Act.

Your Honours, we have a full copy of the

Menzies' report and, if the Court should wish to

see it, it is here. The opinion that was given to

the Attorney-General's Department was given by

Mr Burmester. we, if I may say so, would adopt the

Polyukhovich(3) 247 5/9/90

opinion as	being correct and we would prefer	his
reasons in	writing to those he gives orally.	Of
course, in	writing he was not speaking as an
advocate.	Your Honours will recall - - -

BRENNAN J:  Can you identify the points of fallacy in

Mr Burmester's oral argument, from his
written - - -

MR CHARLES:  They are self-evident, Your Honour.

MASON CJ: Well, Mr Charles, I, for one, will display the

necessary curiosity.

MR CHARLES:  We will have them copied, Your Honour.

MASON CJ: Yes, thank you.

MR CHARLES:  Your Honour will recall that reference had been

made to the view taken by Sir Garfield Barwick;

that is referred to in Mr Menzies' report at the

bottom of page 152 and at the top of page 153, and

Mr Menzies himself had indicated that he agreed
with the conclusions of Mr Burmester and the

Attorney-General's Department at the end of

paragraph 16.6.

I should refer Your Honours, in elaboration of

what I have just put, back to page 145, when

Mr Menzies was dealing with the question, "Should

the chapter now be closed", in paragraph 2.2, at point 4 of the page, Sir Garfield Barwick said - and this is dealing in 1961 with the Government's

decision to refuse a request from the Soviet criminal:

He went on to say that Australia had

developed a thorough but not infallible system

for sifting and screening the hundreds of

thousands of migrants _who had enriched our

national life since the war and, in default of

a binding obligation requiring Australia at

this point of time to do otherwise, those who

had been allowed to make their homes here must

be able to live in security new lives under

the rule of law. While distinguishing the
case of Adolf Eichmann, who was then facing

trial in Israel, he thought that in 1961 'the
time has come to close the chapter'.

With the exception of one member the then

Opposition did not express dissent from the decision.

Your Honours, it therefore appears that so far

as the government's spokesmen and advisors are

Polyukhovich(3) 248 5/9/90

concerned, within Australia at least, there is no

acceptance, at least as far as this material is

concerned, of any obligation at all to extradite

obligation binding or otherwise on Australia to	and certainly no recognition that there was any
deal otherwise with alleged war criminals.

Now, Your Honours, if I may now go back to the

Genocide Convention. If members of the Court would be good enough to look at volume I of the materials book, at page 088, what the Court will see, that if

genocide had been regarded which always was at

international law a crime that would seem to supply

a very strong basis for insisting upon either the

delivery up by extradition or for the dealing by

criminal process by States with persons suspected

of having committed those crimes.

What the Genocide Convention involves, we

would say, is clearly prospective in terms and, in

any event, by article VI what one finds is the

acceptance - and this, of course, Your Honours, is

an Australian Act. At page 088, at point 7, by

article VI, under the treaty the obligation

Australia has accepted is that:

Persons charged with genocide ..... shall

be tried by a competent tribunal of the State

in the territory of which the act was

committed, or by such -

other -

international penal tribunal as may have jurisdiction.

jurisdiction with respect to those Contracting

TOOHEY J: What you have just said, Mr Charles, does not

quite square with article I, does it, but seems to

operate by way of confirmation of the existence of

genocide as a crime?

MR CHARLES: It refers to the parties confirming,

Your Honour, and in the use of the word "confirm",

Your Honour may recall that the article on Mr Kuntz

drew attention to the fact that United Nations

Resolution, I think it was 95(1) or 96(1), had

affirmed in 1946 and, indeed, I am reminded,

Your Honours, at page 087 point nine, there is

reference specifically back to:

having considered the declaration made by the

General Assembly ..... in its resolution 96(1)

dated 11 December 1946.

Polyukhovich(3) 249 5/9/90

Now, Your Honours, the first of a series of

declarations tending to this result that parties

should be dealt with where their crimes were

committed is seen in the Moscow Declaration of 1943

- that appears at volume I, page 148, both in the

left-hand column at point nine and the right-hand

column at point three, both of them, in the

clearest possible terms, that they are to be sent

back to the places where their abominable crimes

were committed. Then, Your Honours, to exactly the

same effect is the London Agreement On War

Criminals in the two pages following, 149 and 150,

referring back to the Moscow Declaration on

page 149 at point four and making reference to the

desirability of returning persons; at page 150 at

point three, the provision for setting up the

international tribunal in article 1 in the middle

of the page, and then article 4, Your Honours, at

point eight on that page.

Your Honours have been given resolution 96(1). That, Mr Kuntz told the world in his article

referred to this morning, immediately followed

resolution 95(1) which appears at 158 in this

volume and which affirms the principles of

international law recognized by the charter - that

is 158 in, really, the whole of the left-hand

column. Then, Your Honours, if I may take the

Court to - proceeding through the volume, at

page 166 reference was made by Mr Burmester

yesterday to the Statutory Limitation to War Crimes

Convention, reference was made to the very wide

definition in article I and Your Honours drew

attention to the fact that, as appears at the

bottom of page 83, Australia voted against that

convention and only some 30-odd countries ever

ratified it. The reason for that appears in the

page following at page 171 and that is because of

the breadth of the definition of crimes against

humanity. Your Honours will see that at page 171

point three that:

The U.N. Convention ...•. seemed unacceptable to

most members ..... because of its broad

definition.

Then, Your Honours, may I go briefly on to

page 178 of the volume. The Court will see that in

1946 in resolution 3(I) the assembly recommended,

in the middle of the page:

the necessary measures to cause the arrest of
those war criminals ..... to cause them to be

sent back to the countries .....

and calls upon

Polyukhovich(3) 250 5/9/90

the governments of States ..... to take all

necessary measures for the apprehension of

such criminals in their respective territories

with a view to their immediate removal to the
countries in which the crimes were committed -

Your Honour, when one then turns to resolution 170 on the next page, which is 179, one

finds that reference is made to:

Noting what has so far been done in the matter

of the surrender and punishment, after due

trial, of the war criminals -

and which is said, Your Honours will see, from

footnote 1 to be a reference back to

resolution 3(I). That was, Your Honours,

13 February 1946. It is a direct reference back. Reaffirms the aforementioned resolution -

that is that they should be sent back, and then,

Your Honours, there is reference to, on page 180,

the Commission on Human Rights, resolution 3(XXI) and, again, Your Honours, the relevant request at point 7 of the page:

To urge all States to continue their efforts

to ensure that ..... criminals

responsible ..... are traced, apprehended and equitably punished by the competent courts.

We refer Your Honours to point 2 of the page which

recalls resolution 95(I) which contemplates

specifically sending them back to their own

countries and, likewise, Your Honours, on the next

page, 181, in 1965 again:

Urges all States to continue their efforts to

ensure that ..... crirninals responsible ..... are

traced, apprehended and equitably punished -

having considered resolution 3(XXI) which recalls

· 95(I) and then, Your Honours, to the same effect,

resolution of the Economic and Social Council, at

page 182, of August 1966. Again there is a

reference back to resolutions 3(I) and 170(II). In

the left-hand column at point 3, again, it is a

reference to sending back.

The reference to "competent courts",

Your Honours, may well derive from the reference in

article VI of the Geneva Convention Act appearing

at page 88 of the volume in relation to the

Genocide Convention.

Polyukhovich(3) 251 5/9/90

BRENNAN J: What is the status of the Economic and Social

Council in the passage of these resolutions?

MR CHARLES~ Your Honours, I would have to say that so far

as that body is concerned I could only defer to the

authority of Mr Burmester. I have no idea. I shall

seek the information but I cannot give it to

Your Honours immediately. However, Your Honours,

the next two resolutions quoted on pages 183

and 184 are again United Nations General Assembly

resolutions, 2338(XXII) and 2583(XXIV).

Your Honours, we can only submit by a process

of suspicion and deduction that the Economic and Social Council must have less authority than the
General Assembly, by virtue of the fact that it is

a narrower forum, but we have taken the Court to

some of the authorities which suggest that a

resolution or recommendation of the United Nations

Assembly will not ordinarily create international

law of itself. I should add some references,

Your Honours, for the purpose of completing this

argument. May I hand up to the Court three

articles, or two articles and one portion of a

judgment.

Your Honours, the references to which we draw

the Court's attention are a chapter in a work

called International Law: Teaching and Practice,

edited by Bin Cheng, in (London 1982), the chapter

is the Means for the Identification of

International Law by Mr Iain MacGibbon. It begins

at page 10 and, Your Honours, the whole of pages

10-25 are relevant. They deal with the effect of

United Nations resolutions and also on what

conclusions one can draw from the repetition of

resolutions and Mr MacGibbon submits that, even by
repetition alone resolutions do not create the

force of law. Secondly, Your Honours, we have

included an article by Blain Sloan.

Professor Sloan's article is called General

Assembly Resolutions Revisited (Forty Years later).

It is in (1987) LVIII BYBIL 39, and in particular

Your Honours, the passages are at pages 42-46,

68-76 and 101-102.

The last matter, Your Honours, to which we

draw the Court's attention is a judgment in the

South West Africa case, 1966 International Court of

Justice Reports, the passage is at pages 432 to

433. It is, of course, a dissenting opinion of

Judge Jessup, but the passage to which reference is

made on the law is in these terms:

The importance of the issue lies in the

fact that at times the argument of Applicants

seemed to suggest that the so-called norm of

Polyukhovich(3) 252 5/9/90

non-discrimination had become a rule of

international law through reiterated

statements in resolutions of the General

Assembly, of the International Labour

Organisation, and of other international

bodies. Such a contention would be open to a

double attack: first, that since these
international bodies lack a true legislative
character, their resolutions alone cannot

create law.

Your Honours will see that footnote 2 assets with

the appearance of certainty that -

the literature on this point is abundant.

Now, Your Honours, the two resolutions to

which I was drawing the Court's attention at

pages 183 and 184 both confirm at the start of them

recalling resolutions 3(I) and 170(II) in both

places. That is page 183, left column, at the head

and page 184, left column, at the head.

Then, Your Honours, in 1970, resolution 2712

and 1971, resolution 2840 - resolution 2712 recalls resolution 2583 on the preceding page which recalls resolution 3(I) and 170, and resolution 2840

expressly recalls them. And likewise,

Your Honours, in 1972, resolution 3020 recalls
resolution 2840 which recalls 3(I) and 170(II).

The first time one finds even an assertion

that States have the right to try their own

nationals for crimes appears in 1973 in
resolution 3074 which, however, begins by recalling

a variety of the earlier resolutions which had

harked back to taking the criminals back to be

dealt with in their own countries. And even that,

Your Honours, in 1973, at the right-hand side in

paragraph 5, asserts again harking back that as a

general rule they should be tried in the countries

where they committed those crimes.

Now, Your Honours, as far as we are aware,

since Sir Garfield Barwick in 1961, some 30 years

ago, said it was appropriate to close the chapter
asserting then that there was no binding obligation

to extradite, there has been no further request, as

far as we know on the material before the Court

certainly, to extradite, no suggestion of any

diplomatic protest, no note of any kind suggesting

that anybody else felt, or any other nation that is
to say, felt that Australia was in breach of any
obligation in relation to the failure by Australia

to deal with the persons who are said to be war

criminals now in this country.

Polyukhovich(3) 253 5/9/90

Now, Your Honours, we would say that if one

was searching for evidence of any binding

obligation at international law, there was every

opportunity for those who assert that obligation to

make complaints or claims that Australia either

should meet or has failed to meet so basic an

obligation. Now, there is no such evidence from

any European country since the 1961 request from

the Soviet Union which does not seem to have been

followed by a protest. There is no evidence from

Israel, which might be thought to have had a very

considerable interest in whether Australia pursued

any such matters.

Now, there is to the same effect,

Your Honours - the Court will recall there was

plenty of evidence of atrocities committed in the

Asian region - one only has to mention the name

Nanking, for example - plenty of atrocities

committed in the Asian theatre. There is no

evidence of any return or extraditions in recent

times for that matter. There is evidence of, I
think, one expulsion or deportation from the Latin

American countries; there is evidence of the

extradition of Demjanjuk and, of course, the trial

of Finta, but in so far as evidence that would

support any such claimed obligation, we would

submit that it simply cannot be found to exist.

The Deschenes Commission seems to have found

that there was no such obligation; that appears in

materials book III at pages 132 to 134 and 141 to

143. The Act contains no assertion that there is

such an obligation.

Now, accordingly, Your Honours, we would

submit for those reasons that there is no evidence

of State practice and no evidence of opinio juris

available to support the existence of any

obligation now of the kind claimed on the part of

the Commonwealth.

DAWSON J: The Deschenes report seems to draw a distinction

between law strictly speaking and law broadly

speaking, does it not?

MR CHARLES: Yes, Your Honour.

DAWSON J:  I am not sure that I understand the distinction

but - - -

MR CHARLES:  Yes. We would submit with all respect that in

that area, and I take the point Your Honour makes,
that the reasoning is somewhat sloppy in that

report but, in any event, we submit that it seems

plain enough that the Deschenes Commission did not

Polyukhovich(3) 254 5/9/90

find that there was an obligation of the relevant

kind.

· "-- Your Honours, there are two matters before the

Court which are significant in terms of finding

what international law was. We say first, that the

point on which I have just been addressing the

Court, obligation to try, or extradite or try,

there is no evidence of it at all. The second

matter of international law which is of importance

before the Court is whether we have made good our

submission that, as at 1939 to 1945 the relevant

international law did not include an area of law

which now appears in the Genocide Convention.

We submit that while we accept that there

could well be said to be dispute by academics and

international lawyers as to whether such a
principle of universality could be found, whether

there was a general law that persons guilty of

genocide were guilty of an offence in international

law, in our submission, the better view on the
material before the Court is that there was no such

wider criminal obligation at international law, and

that in so far as it is a matter that is before the

Court, there is plainly no evidence that would

justify the conclusion that in 1939 to 1945 it was

criminal at international law in the wide terms of
the Genocide Convention.

Now, Your Honours, if we make good those

propositions then, in our submission, it follows,
subject to the view the Court takes as to
section 17(2) and implications, that the act in

section 6 and 7 goes outside the permitted area of

an infraction of international law and accordingly,

in seeking to deal with acts committed in 1939 to

1945, is retroactive.

DEANE J:  Why do you say that the fact that it was

retroactive would take it outside the external

affairs power? I can understand what you would say

in relation to Chapter III but I do not follow it

in relation to the external affairs power?

MR CHARLES:	In relation to that, Your Honour, we say that in the first place, as we follow it, the Act has
been justified by those who support it.

DEANE J: Well, I was not thinking in terms of any argument.

I mean, would you dispute that the external affairs

power extended to making a law punishing nationals

for their conduct overseas or making an offence in

relation to the conduct of nationals overseas?

MR CHARLES:  We would accept, Your Honour, that if one had a

situation now, let us say, where supporters of

Polyukhovich(3) 255 5/9/90

Australian sporting teams were going overseas, say
to Indonesia, in the numbers and carrying with them
the behaviour attributed to English soccer

supporters in recent times, that there might well

be justification for saying that the external
affairs power would permit English courts or, in

that way overseas should be dealt with criminally here.

this context, Australian courts and the Australian

DEANE J: Well, you do not have to take an abstract example,

what about punishing Australian nationals who

engage in genocide in other countries?

MR CHARLES:  In other countries now? We would say -

DEANE J: - - - or not genocide, who go about killing people

in other countries?

MR CHARLES: Ordinarily, Your Honour, that would be a matter

for the domestic law of those other countries and

Australia's response properly, we would submit,

would be by extradition. It would be -

DEANE J: What, you are saying that the external affairs

power does not extend to making it an offence for

Australians to go around killing people in other

countries?

MR CHARLES:  If I may say so, Your Honour, that was not the proposition I was seeking to put.

DEANE J: Well, I was then going to ask you if it does

extend to that, putting aside questions of judicial

power, why does it not extend to doing it

retrospectively or retroactively as a matter of

legislative power?

MR CHARLES:  Your Honour, we would say firstly, when one

looks at the question whether the Commonwealth can

legislate in relation to criminal conduct overseas,

one would need to see something beyond the mere

fact of criminality by an Australian to make the

matter one proper for the Commonwealth Parliament

to legislate. In the example I have just put to

the Court the necessity for the Commonwealth to

legislate would come from the concern or otherwise

that the behaviour of Australians was affecting our

international relations as, indeed, it may be seen

that England's relations with the European

countries have been very severely affected by the

way in which their supporters behave.

McHUGH J:  But why do you have to go that far? Why could

not Australia under the external affairs' power

make it an offence for an Australian to participate

Polyukhovich(3) 256 5/9/90

in killing seals in Canada or engaging in whaling

in some other country?

MR CHARLES~ Your Honour, because the mere fact that someone

commits a murder in England or kills seals in any impact on Australia's external relations.

McHUGH J:  It is a question of whether it is an external

affair.

MR CHARLES:  I entirely follow that, Your Honour. In so far

as one is looking at the matter in the concept of

externality, we would say that the examples given

in New South Wales v The Commonwealth, the Seas and

Submerged Lands Act case, have to be recalled in

the context of the territorial sea. We submit that

it is not merely the fact that the sea is external

to Australia's boundaries but that that legislation

involved both a convention and the fact that

Australia's territorial seas involved the dealing, in a sense, with foreigners by looking at the way

in which our external boundaries interact with

those of other countries and the claims we make

over that territorial sea.

DEANE J: But, it is one thing when there is a competition

between Commonwealth and States and the

Commonwealth is relying on the external affairs'

power to intrude into fields that would otherwise

be within State power but why, when one is dealing

with something done or the consequences of

something done overseas and where the question is

whether in a case where the national parliament

thinks that legislation is desirable, a law passed
will be within the external affairs' power? Why,

in a national constitution should this Court say,

"No, that's not good enough"?

MR CHARLES:  Your Honour, in the context in which this is

being put to me is whether this is an appropriate

exercise of external affairs. The answer - - -

DEANE J: Or whether it is a law with respect TO external

affairs.

MR CHARLES:	And we would submit to that that it depends upon whether the isolated act of an Australian
citizen in London of murdering some passer-by has
any bearing on external affairs. Our submission is
that it is not simply the fact that it is external
to Australia that is sufficient to call into
operation the external affairs power.

DEANE J: Well, it seems to me, with respect, that you are

saying there is not sufficient connection to

Polyukhovich(3) 257 5/9/90

justify the Parliament enacting this law with

respect to external affairs.

MR CHARLE$L Yes, Your Honour, that is one way which we

would answer it, yes.

DEANE J: Well, once you have said that, you have conceded

it is a law with respect to external affairs.

MR CHARLES: Well, with great respect, Your Honour, what we

also say is that until one finds an impact upon

Australia's international relations, and there
might be circumstances in which there would be,

then one does not find it as a matter of external

affairs.

McHUGH J: But Mr Justice Mason, as he then was, rejected

that argument in terms in New South Wales v The

Commonwealth. He rejected the argument it had to

impinge on Australia's international relations.

MR CHARLES: Well, if I may say so, Your Honour, we would

adopt in that context, the answer made, as we

follow it, by the Solicitor-General for New South

Wales, at pages 10 to 15 of their argument on this

point, and so far as we are concerned the answer is

fully made, we would submit, in those pages.

DAWSON J: 

How can this Court decide, once you are dealing

with something that has a degree of externality,
whether it is going to affect Australia's

international relations. Take the International

Whaling Act: whaling is forbidden on the part of

Australia anywhere I think. Now, how can we say

that will or will not affect international

relations.  It may be pour encourager les autres.

MR CHARLES: 

It may, indeed, encourager but we would say,

Your Honour, that that is one of the reasons why

this Court should tread, with respect, with great

care in looking at the expansion of the external

affairs power, we would submit, in relation either

to an assertion of extraterritoriality or simple
international concern as opposed to obligation.	We
have included, in our written submissions, reference to the American decisions on
non-justiciability - the political issue cases -
and, we would submit that by parity of reasoning

this Court will be led into areas and this case, in

so far as it deals with international concern, is a

good example of the Court being led into very

difficult and, indeed, arguably insoluable areas if

the Court is going to accept that matters like

international concern can be sufficient to support

legislation of this nature.

Polyukhovich(3) 258 5/9/90

DAWSON J: International concern it is very often a near

precursor of international obligation.

MR CHARLES:: Your Honour, I accept that international

concern may, in appropriate cases, be and for that

reason support an exercise of power, executive in
this case making the convention but may, in
appropriate cases, be that.

May I go back several stages to the question of extraterritoriality because, really as a first

step in the argument, we would submit that the law

in question here, the War Crimes Act, on no view

can be described as an extraterritorial Act. we

submit it is a law with respect to the punishment

of Australian citizens for acts committed by them

in 1939-1945; acts regardless of whether they are

crimes; acts regardless of whether they were in

Europe and acts regardless of whether they were

related to a war.

McHUGH J: But it is also a law with respect to external

acts and once you concede there is a retrospective

power, it does not matter, does it, that the acts

occurred in 1941-1945 or 1939-45?

MR CHARLES:  As to that, Your Honour, we say that the

difficulty with retroactivity is this: quite apart

from questions of Chapter III which raise their own

problems. - separate ones - the Court has in the
past said it requires the response to be
proportionate and that the Court will exercise

supervision, if I can put it that way, over

legislation to ensure that the Court accepts that

the legislation is proportionate.

One way in which the Court might regard

legislation as disproportionate is if the

Commonwealth were to pass legislation in breach of

a positive international obligation the Parliament

has accepted. There are a variety of different

international obligations the Commonwealth has

accepted which prevent it from making retroactive
legislation.	I was going to take the Court to them
in a moment.	We say that this legislation does, in

fact, conflict with a number of international

obligations Australia has accepted.

DAWSON J: But you can do that, cannot you? I read

somewhere that as far as customary law is concerned

you are not bound by it if you disavow it.

MR CHARLES:  Your Honour, as a matter of international law

that may be so. It is a separate question, in our

submission, whether the Commonwealth is permitted

to legislate in defiance of its international

obligations on the basis of an international

Polyukhovich(3) 259 5/9/90

concern and without having first disavowed that

obligation.

DEANE J:  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?

MR CHARLES:  Your Honours, I do not say that the

Commonwealth could not repudiate. One of the

difficulties about this case is that the

legislation appears to have been drawn under the

misapprehension that the Commonwealth was complying

with international law and, indeed, that submission

has been forcefully made to this Court, that the

Commonwealth was complying. That is the reverse of

a repudiation. The Commonwealth is asserting that

it has complied with its international obligations.

Yet, if we had made our arguments good, it is

flagrantly in defiance of them.

BRENNAN J:  Mr Charles, the difficulty really is at a more

fundamental level, is it not? If the Commonwealth

in a purported exercise of the external affairs

power passes a law which affects the internal legal

order in Australia then it must find its

justification in either the fulfilment of some

obligation, treaty or otherwise, or perhaps in the

existence of some matter of international concern.

But if the subject-matter of the law is not one which affects the internal legal order but which

purports to act upon conduct outside Australia then

the argument against you, as I understand it, is

one does not have to look for any external

international obligation or treaty. One simply

notes that the conduct in question is external to

the territory of Australia.	You have to find a
response to that, do you not?

MR CHARLES:  The response we make to that, in the first

place, Your Honours, is that if it is simple

externality that entitles the Parliament to

legislate, then it does not have to be Australian

citizens killing seals in Canada, it can just as

well be Canadian citizens killing seals in Canada.

BRENNAN J: Quite.

McHUGH J:	It may have to because it has got to be a law for the "peace, order and good government".
MR CHARLES:	That, Your Honour, was going to be precisely my

next answer. The question then is whether it is a

law for the "peace, order and good government" of

Australia and that is the very next point that we

wanted to make:  how can that be said to be? A law

Polyukhovich(3) 260 5/9/90

against Canadian citizens, resident in Canada,

killing seals there, what has it got to do with

Au.stralia? ,::· __ .

BRENNAN J: That raises the question whether the "peace,

order and good government" formula is a formula

which is intended to confer an unqualified

plenitude of power or whether they are words of

restriction.

DAWSON J: But that depends on the nature of the polity to

which the words are directed?

MR CHARLES:  Indeed, Your Honours, and we would say that

there is more justification for reading those words

as involving some limitation or restriction on

power than there would be in the case of the

similar expression, "peace, welfare and good

government", in the case of New South Wales and

referred to in the judgment of Sir Laurence Street

in the Builders Labourers Federation v The Minister

for Industrial Relations.

The Court will recall the case. The attempt

to deregister the Builders Labourers Federation;

the matter proceeding in court; the government

apparently having some concerns about whether it

was going to win and then passing legislation to

produce the result of the action. Sir Laurence

dealt at length with the question whether there was

any such restriction involved in those words and

concluded that there was a restriction on the power

to legislate involved in that formula although it

did not apply in that case.

McHUGH J: But his reasoning was in the minority in that

case, was it not?

MR CHARLES:  We would respectfully submit, no, Your Honour.

We would submit that the same conclusion is

accepted by Mr Justice Pri~stley on that point.

DAWSON J: But he was dealing with a State there, was he

not?

MR CHARLES: Yes, of course, Your Honour.

DAWSON J: A different polity in a different State.

MR CHARLES: Different polity, I accept.

DAWSON J:  Once the Commonwealth power, it has unlimited

power with respect to that subject-matter because

otherwise there would be a gap.

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

there is no necessary gap. There are a variety of

Polyukhovich(3) 261 5/9/90

potential answers to that gap: the first of them is

that the States which have primary criminal power

would have power to legislate so long as a law in

r~lation to the killing of seals in Canada did have

some appropriate connection with the peace, welfare
and good government of the State in question.

Secondly, Your Honours, the argument that was made was that the United Kingdom had unlimited

legislative power in relation to these matters. We

submit that that is not a correct description of

the powers of the United Kingdom government. There

is a case of "Le Louis", (1817) 2 Dods which

indicates that there is a limitation on the power

of the United Kingdom to legislate in that area.

I have "Le Louis", 1817 2 Dods. 210, and may I

hand copies to the Court. We would respectfully

submit that that case does establish that there are

some limitations on the power of the United Kingdom

to legislate in relation to matters external to the

United Kingdom. It was a case, I think, of seizing

a slaver - ship engaged in the slave trade on the

high seas. Next, Your Honours - - -

DAWSON J:  Does that mean that the United Kingdom courts

have power to decide that the United Kingdom Act is

beyond power and invalid?

MR CHARLES:  What was decided, Your Honour, was that no

British Act of Parliament or commission founded on it, if inconsistent with the law of nations, can affect the rights or interests of foreigners.

BRENNAN J: Well, this is going back to the question whether

or not the peace, order and good government is, in

fact, a charter of human rights.

MR CHARLES:  Yes, Your Honour, indeed. We submit that there

are some restrictions to be found arising out of

the use of that expression, but our first

submission is that it is not surprising that the

Commonwealth Parliament does not have power to

legislate in relation to the killing of seals in

Canada by Canadian citizens; that if it should be

thought necessary that the Commonwealth have an

extraordinary power of that kind, then there is the
possibility of an amendment of the Constitution to

enable such a power to be obtained. If at the

moment we do not have it, is that a matter for

great regret - the fact that there is such a gap -

and if we be right that there is no power to

legislate in relation to the killing of seals in

Canada by Canadians, why should the mere fact that

it is an Australian citizen doing it there have any

greater impact on the external affairs power,

unless the matter becomes one which raises some

Polyukhovich(3) 262 5/9/90

concern in relation to Australia's international

re_lations?

We would submit that, ordinarily speaking, the

natural response to an act of murder being

committed, say, in England is that the person would

be expected to be dealt with there by the criminal

courts of that country, and if we discovered that

that person had come back to Australia, he would

immediately be arrested as soon as the matter

became known and extradited to face trial in that

country.

Not only is there an extradition treaty for

that purpose but that is precisely what one expects

to happen and what all of the resolutions to which

we have drawn the Court's attention would expect to

happen.

DEANE J:  Was the court in "Le Louis" applying United

Kingdom law or international law?

MR CHARLES:  My impression, Your Honour, is that it was

applying English law for the purpose of saying that
they could not seize the slave trader on the high

seas.

DEANE J: Except was it an admiralty court under English law

applying international law?

MR CHARLES:  It was certainly a vice-admiralty court,

Your Honour.

DAWSON J:  Mr Charles, as I understand it, and my

understanding may be most imperfect in this area,

you look at international concern first of all to

see whether it converts what otherwise would be a

matter of internal concern into a matter of

external affairs and that being so there is

legislative power. But, onqe you can see what is

involved is external affairs, without looking at

international concern, it is no part of this

Court's functions to assess the degree of

international concern. It may be, when you are

concerned, as Justice Brennan puts it, the internal

divisions of power, for the reason I have given,

you have to convert what, prime facie, is not an external affair into an external affair; such as

lands in Tasmania or whatever it might be.

MR CHARLES: Well, Your Honours, if I may turn to

international concern. It is not the purpose of

our submissions to argue that international concern
cannot raise an appropriate case for the exercise
of the external affairs power. We recognize that

there may well be circumstances which would require

or entirely properly cause the Commonwealth

Polyukhovich(3) 263 5/9/90

Parliament to legislate or to act in an executive fashion because of a matter of international

concern.

But if, Your Honours, it is said to be simply

a matter of some sort of vague international

concern that can entitle the Commonwealth

Parliament to act, the certain consequence is that

one can, if I may say so, with respect, throw out

of the window all the very careful reasoning in

Koowarta, The Dam's case, Richardson. As soon as

one finds a concern by nations expressed in any

way, or people from foreign nations say, for

example, in relation to any resources area - say,
the preservation of flora and fauna, disarmament -
nuclear or otherwise, global warming, solar

heating, reduction in the use of fossil fuels,

birth control, compulsory sex education, the use of

animals in scientific research, the legalization of

marihuana, prevention of the ordination of women,

rain forest and wood chipping. All of these

matters are the subject of genuine international

concern in the sense that bodies of people in

foreign countries have perfectly legitimate

interests for or against various of these things

happening.

DAWSON J:  Some of us have recognized that.

MR CHARLES:  I apologize for the speech, Your Honour. would say, Your Honours, that what this means is We

that it is a matter of critical importance where

one is dealing, not with a question of a treaty or

an obligation that one must examine the supposed

concern to see, firstly, whether it is

international; to see precisely what it is that is

said to be the matter of concern and its

boundaries; by whom it is being expressed;

whether it is genuinely a concern raised by nations
or groups of persons independent of nations and

whether it is a proper concern touching Australia's

international relations as a nation.

Now, the point we seek to make in relation to

the matter presently before the Court and starting

with the matters to which we drew attention first

this morning is that what one sees here is a most

deeply felt concern by, if I may so call it,

international jury and expressed through the medium

in Australia of a group of very concerned citizens

anxious that war criminals should be dealt with.

We say, that is not a matter of international

concern properly speaking, notwithstanding the fact

that other groups of similarly concerned citizens

have raised the matters overseas and persuaded

their governments to act. Unless the matter reacts

upon the way in which Australia deals with various

Polyukhovich(3) 264 5/9/90

governments overseas, it is a matter of thought

h~re which is common with thought in other places

_bQ-t, with great respect, can it enliven the

external affairs power? We would say, "No".

Now, if any of those matters - and I certainly

shall not repeat the deplorable list - if any of those matters can be said to enliven the foreign

affairs power then there is no limit to the way in

which the Commonwealth Parliament may legislate.

It is not simply a question of conventional

obligation; the matter is at large.

DEANE J: But you do not need anything to enliven the

external affairs power. It is there.

MR CHARLES: It requires, we would say - - -

DEANE J: Well, all you need to enliven it is a use of it by

a law made by the national Parliament.

MR CHARLES: That might be a conclusion, with respect, Your

Honour, that does not give sufficient weight to the

constitutional restrictions of section 51, we would

submit.

DEANE J:  But the question is not whether you enliven it;

it is what is its content and if the law is a law

with respect to external affairs.

MR CHARLES:  Yes, indeed.

DEANE J: Your argument seems to be the more external it

gets, the less it is a law with respect to external

affairs.

MR CHARLES:  Your Honour, if this law is properly

characterized as being a law with respect to the

punishment of Australian citizens for what they did

in 1939 to 1945 and, if our construction of the Act

is correct, possibly in Australia itself, all you

have got to make the matter on any view a response

· to an external affairs power is the fact that the

war, with which the activities had to have some

connection, occurred in Europe and something which

happened in 1939 to 1945. Now, it is difficult to

see how one can find less of a connection with

external affairs.

BRENNAN J: Well, is not the answer against you to be found

in section 6(3)(a), that is:

It was done at a particular time outside

Australia -

In other words, forget all about the content of section 7; forget about the definition of "war

Polyukhovich(3) 265 5/9/90

crimes" and forget about international concern;

here is a law which exposes to punishment an

Australian citizen or a resident of Australia under

se9tion 11 who has committed a serious crime

outside Australia and that that and that alone is

sufficient to find support in 5l(xxxi).

MR CHARLES:  Yes, Your Honours, save also that the Act in section 6(1) provides that:

An act is a serious crime if it was done in a

part of Australia -

In other words, Your Honours, it is a matter really

of no concern whether it was done in or out of

Australia and by section 8(2):

An act may be a serious crime by virtue of one

or more of subsections 6(1), (3), (4) and (5),

but not otherwise.

In other words, Your Honours, it is not necessary that the act may be done outside Australia; it may

be done inside.

McHUGH J: Well, it seems to me that 6(1) seems to be a

drafting device.

MR CHARLES:  So is 6(3), Your Honour.

McHUGH J: But, supposing before the Second World War, a

foreigner resided in Australia for some years; just

before the outbreak of the war he went to Japan and

during the war he broadcast for the Japanese, then

after the war he came back to Australia. Why could

the Australian Government, if it wanted to under

the external affairs power, not pass a law making

him guilty of the equivalent of treason?

MR CHARLES:  I am sorry, I missed the first part of

Your Honour's example.

McHUGH J: Well, assuming somebody just lived here for some

years as a resident, but he was a foreigner, he

leaves the country before the outbreak of war, so

he owes no allegiance in any sense, goes over and

broadcasts for the Japanese and then comes back to
Australia after the war is over. Why could not the

Australian Government retrospectively make his acts

an offence?

MR CHARLES:  If it is being put, Your Honour, in a situation

of someone who is not an Australian citizen who is

acting in that way then, we would submit that there

would be serious questions about whether Australia

now could make someone who was not an Australian

citizen guilty of treason for actions taken in

Polyukhovich(3) 266 5/9/90

Japan at that time any more than Australia could

now deal with Canadian citizens killing seals in

Canada. There, with respect, does not seem to be mu.ch does not seem to be much difference between them.

All we are seeking to put in relation to the

argument as to externality, is that there has to be

something other than externality; there has to be

some appropriate connection before a law is

sufficiently based within the scope of the external

affairs power. I am reminded that in the second

reading speech at page 189 of volume III, the

Attorney-General said in the left-hand column at

point four that:

The Bill is confined in its operation to

the period of hostilities known as World

War II and provides that certain criminal acts

done during that period, whether in or out of

Australia, which were during that period

offences under a law in a part of Australia,

are serious crimes for the purposes of the

Bill.

DAWSON J: Well you may be right.

MR CHARLES:  Yes. The Attorney may have got it wrong, but

that is what he said.

BRENNAN J:  May I take you back to these intractable,

incomprehensible subsections? Read section 6(1)

either as meaning "would have been" instead of

"was" or, alternatively, sever it and leave only

subsection (3) and if one has section 6(3) and

section 11 in conjunction, then what is the

argument against the creation of a serious crime

done outside Australia by an Australian citizen or

an Australian resident being outside the external

affairs power? Perhaps you might like to deal with

that in terms of a law which says it is a serious

crime if it is done so that it acts prospectively,

or was done so that it acts retroactively?

GAUDRON J: And there is another aspect to that which

worries me: whether he or she was an Australian

citizen when the act was done or whether or not he

or she has since become an Australian citizen?

BRENNAN J: 

Or resident.

GAUDRON J: 

Or a resident.

MR CHARLES: 

Your Honours, if the section is prospective

then we would say that most of the objections may
well disappear. An Act dealing prospectively with
offences of the kind here, by Australian citizens

Polyukhovich(3) 267 5/9/90

abroad, would be criminal under international law

by virtue, in part, of the Genocide Convention

under which Australia has positive obligations

and - - -

DEANE J: Well, take it back to an Act enacted in 1935 which

was prospective.

MR CHARLES:  An Act enacted in 1935 so that it is

prospective avoids some of the - we have not yet

got to the collection of breaches which we say the

present Act commits in relation to our

international obligations because there are about

five, Your Honours.

If one went back to 1935 and had an act

operating prospectively in the way that this Act

does, then it would at least not be retroactive; at

least it might offer the prospect of a fair trial,

and not one that was 50 years after the event; at

least it might, in other respects, not change the

burden of proof and so, in that, comply with our

obligations under other conventions to give a fair

trial, and would still however, Your Honours, have

the potential vice that if we be right that we

cannot legislate for what Canadians do in relation

to seals in Canada, that external affairs power

does not give us the right to do that, why is the

fact that an Australian murders seals in Canada a

matter which has any impact on our external

affairs?

It is not something which relates to something

external in the sense of bordering Australia. It

is not something which affects Australia's borders

with other countries, which we submit is the proper

foundation of the judgments in the Seas and

Submerged Land case. We submit that one would not

find simply from citizenship an adequate connection

to found legislation under the external affairs

power. If, on the other ha:rtd, one looks at

legislation of this kind acting retroactively, but

say that, for the reasons we have just given, it	in relation to citizens outside Australia, then we
cannot be seen to have an adequate connection with
Australia, or Australia's external affairs, in part
because the persons were then not residents, not
citizens, of Australia, so we are dealing with
Canadians acting in Canada who happen to have come
here since.

Secondly, we are doing so in breach of our

obligation not to pass retroactive legislation.

Secondly, we are denying them a fair trial and

thirdly we would say for reasons such as onus of

proof, in those respects also, departing from

obligations.

Polyukhovich(3) 268 5/9/90

May I shortly give the Court those submissions

which I sought to put to the Court before - if I

Gc!Il find them - as to why it is we say that our

-ob-ligations are being departed from. Apart from

the question of retroactivity with which I have

dealt, Australia has accepted conventional

obligations under the international covenant on

civil and political rights applied in Australia

under the Human Rights and Equal Opportunity

Commission Act of 1986, firstly, that everyone is

entitled to a fair and public hearing - it is in,

Your Honours, the material book; it appears in

volume IV at, I think I am correct in saying, pages

8 and following.

Everyone is entitled by article 14 to a fair

hearing. Under article 14(2):

Everyone charged with a criminal offence shall

have the right to be presumed innocent until

proved guilty -

and we say that in one respect the onus of proof

has been departed from. Everyone has the right - To be tried without undue delay -

that is article 14 3(a) and (c). The provision in

relation to retroactivity in that convention is

article 15 1, that you are not to:

be held guilty of any criminal offence on

account of any act or omission which did not

constitute a criminal offence, under national

or·international law ..•.. when the criminal

offence was committed.

It was in the Hetherington report that it was said

that article 15 2, or the similar provision, was of narrow operation and not intended to permit persons

to create offences having retroactive effect.

DAWSON J: But it does recognize that they may have been an

offence - yes, that would ..... your argument.

Genocide you say is excluded at least.

MR CHARLES: Yes. Your Honours, all of these matters, taken

with the obligation under the Genocide Convention

to send people back to the place where their crimes

have been committed for trial, we say, bear upon
the question of the proportionality of the
response. We have submitted to the Court that when

Parliament legislates in response to a conventional

obligation or treaty obligation the Court will look

to see whether the obligation has been complied

with.

Polyukhovich(3) 269 5/9/90

We would submit that by parity of reasoning

this Court should say that unless these obligations

~ave been repudiated so also one would expect and

require Parliament to legislate if an international

concern is sufficiently demonstrated to produce a

proper operation within the scope of the external

affairs power, that that legislation will conform

to our international obligations.

Unless the Court says that there is no

question of proportionality in the response to that

obligation, then we submit that it is a proper

submission that the Commonwealth here is acting in

defiance of those obligations.

BRENNAN J:	Mr Charles, can I just take you back again once more to 6(3) and the problems that that gives me,
mainly in this respect: it seems to me that when
one is endeavouring to give a character to a law,
the first step is to see what it is that the law
does. If it is a prospective criminal law, the
operation of the law is to provide a legislative inhibition against the conduct prescribed. A retrospective criminal law does not have that effect. A retrospective criminal law has only one
effect and that is to impose upon a person not
theretofore liable, a liability to punishment and
the question really is, whether or not this law,
being retroactive, has an effect which, if of that
kind, can be described as a law with respect to
external affairs.
MR CHARLES:	Indeed, I accept that, Your Honour, and for the

reasons we have put, we submit that it cannot be so

described as a law with respect to foreign affairs

particularly if we are correct that it is a law
properly characterized with respect to the

punishment of persons now Australian citizens but

who were not necessarily then, who presumably were

not then, in relation to acts committed in 1939

to 1945 regardless of whether they were then

crimes, regardless of whether the acts were

committed in Australia or out of Australia, and

regardless of whether they were connected with a

war.

DAWSON J:  But is that not taking too narrow a view? Why

cannot it be a condemnation these acts now,
notwithstanding they were done then, by this

country as a nation and to deter others from doing

similar things in the future?

MR CHARLES:  Your Honour, the fact that Australia wishes to

make a condemnation does not, we would submit with

respect, mean that an act of this kind is an act in

relation to external affairs. Australia has

accepted obligations under the Genocide Convention

Polyukhovich(3) 270 5/9/90

under a variety of other conventions and treaties

in support of that entirely praiseworthy view.

We would submit that this Act cannot properly

be described as an external affairs response to a view of the kind that Your Honour has just put to

me for all the reasons which we have submitted to

the Court today. I do not know that it would be

helpful to repeat them.

The fact, Your Honours, that persons committed

atrocities in Mildura in 1930 and that the

Commonwealth Parliament now wishes to take a stand

against the repetition of those offences would not,

with respect, give the Commonwealth Parliament

power to make a law under external affairs.

DEANE J: Well, that may well be so but we are looking at

section 6(3).

MR CHARLES:  And 6(1), Your Honour.

DEANE J: Not necessarily; 6(3) can stand without 6(1) but

incorporating 6(1) by reference.

MR CHARLES: 

Save, Your Honour, that one has to find an

adequate connection with external affairs before
the law becomes one under the external affairs

power.  We can do no more than submit that, for all

the reasons we have put, in the first place it is
not with respect to external affairs and if it has
any connection with external affairs, it is not a
proportionate response.

DEANE J; 

I was just quibbling at Mildura.

MR CHARLES: 

I have no reason to believe that any such acts

occurred in Mildura, Your Honour.

Your Honours, I am sorry for the time that has

passed. I have said in the course of the last

discussions that have taken place much of what I

wanted to submit on most of the various matters	that were before the Court other than the defence
power. I am just seeking to go through my notes to
make sure that I have not omitted anything, if the
Court will permit me a moment.
Your Honours, if I can now turn to the defence power, we submit that 45 years after the conclusion
of the Second World War there is nothing to be
found in this legislation that could properly be
regarded as a matter of defence. The reasons for
that submission could be sufficiently found in the
decision of R v Foster, 79 CLR 43, and in
particular at pages 81 to 84. We submit that this

Polyukhovich(3) 271 5/9/90

law has no real and substantial connection with the

defence of the Commonwealth.

Now, Your Honours, in so far as it is

suggested that this law is in any respect a law

with deterrent intentions, we would submit that any

relevant deterrent effect the legislation might

have is removed by the legislation being limited to

the period 1939 to 1945.

Your Honours, I do not think I can add to our

submissions.	We have made them at length in
writing in relation to the defence power.	We

submit that basically this law stands or falls by
virtue of what it has to say under the external

affairs power, and certainly should fall under that

power.

Now, Your Honours, the last matter is that, my

learned friend Mr Weinberg, in dealing with a

number of matters which it was said the legislation

did in its grab-bag of matters which is designed to ensure a fair trial put it to the Court that, among
other things, it would be impossible for there not

to be committal proceedings, that it was a matter

of certainty that a committal would occur in every

case. My instructions are that there will be no

committal in the case of the plaintiff in this case

that, by virtue of a number of odd and procedural

matters, what has happened is that there will now

be an application made to the Supreme Court in

Adelaide on the question of his fitness or

unfitness to plead a matter, I am instructed, not

raised by the defence, that is those on our side of

the table, but put forward, on the other hand, by

the Director of Public Prosecutions or the

informant being put before the Court.

The consequence, as we are informed, is that

that will mean that the question of the accused's
fitness or unfitness to plead will be dealt with by

the supreme court before a jury and that the

procedural consequence then is that if he is found

unfit to plead what then follows is that the

prosecution then proceeds after that has happened

to prove a prima facie case before the court,

before the matter is then brought back if within a

year he should become, again, fit to plea. I am

instructed that in those circumstances no committal

takes place. Those are my instructions.

We have, Your Honours, copies of

Mr Goldenberg's article to which I referred the

Court. May I hand copies of the articles to the

Court and, also, Your Honours, Mr Burmester's

opinion upon which we rely.

Polyukhovich(3) 272 5/9/90

DEANE J:  Mr Charles, is it proposed that these proceedings

in relation to fitness to plead go ahead pending

the decision of this Court, or is it proposed that

they will await the decision of this Court?

MR CHARLES:  Your Honours, this is not a matter of our

choosing. My instructions are that the question of his fitness or unfitness to plead will proceed next

month, I think it is, in October, in the Supreme

Court in Adelaide, regardless of the proceedings in

this Court.	As I understand it the view has been
taken that the matters are urgent.	The matters

should proceed with all due speed and will continue

to and if the Court should decide the legislation

is invalid, then obviously at that point they will

stop, but until the Court should so decide the

matter will proceed.

DEANE J: Is that with, if not at the initiative, with the

concurrence of your client?

MR CHARLES:  No, Your Honour, indeed not. I had better seek

instructions on that, if Your Honour will permit

me.	Your Honour, the matter is, as we understand
it, proceeding at the wish of the prosecution.	The

view that has been taken on behalf of the accused

is that the accused has no option in the matter.

I

do not know if the Court is aware of this, but the

procedure was that this matter was first listed for

hearing before this Court at the end of June.

Because there seemed then to be difficulties in

completing the matters for argument, the matter was

raised before His Honour the Chief Justice and put

over to this week in September in order to ensure

that argument was completed and the Court was not

disrupted by delays.

At that point, counsel for the Director of

Public Prosecutions raised the concern that was
held by the prosecution that the prosecution should
not be delayed by the hearing in the High Court and

proceed was not a matter which we took exception

that the fact that the committal was expected to the view was expressed that we, at that stage, said

to - we could see no reason why the fact that the
matter was then coming before the Court was a
matter which should delay the committal
proceedings.

TOOHEY J: But the pursue a fitness to plead, Mr Charles,

which is the subject of a separate hearing, does

that result from a direction by the Court on its

own motion or at the instance of one or other of

the parties? How did it come about?

MR CHARLES:  It is at the instance, Your Honour, of the prosecution that this question of fitness to plead

Polyukhovich(3) 273 5/9/90

is being raised and, indeed, referred to trial in

the supreme court before a jury.

TOOHEY J: - ·rs that as of right, as it were, or is it simply

by application to the court?

MR CHARLES:  I am not entirely clear, Your Honour, of

precisely how it has happened but I believe that

the circumstances are these: my understanding is
that the information that was first laid left the

matter to be dealt with under the common law.

Since the information was first laid, a new

procedural provision was introduced which enabled

the procedure now proposed to be followed to be used in relation to all informations laid after

that provision.

After that provision was introduced the first

set of charges was withdrawn and a second set of

charges - the ones now before this Court - were

laid. The very fact that that course has been

followed has resulted in, on my instructions, the

prosecution being entitled under this new

legislation to take proceedings to have the

question of fitness to plead referred to the jury.

The fact that that course has been followed has led to the defence taking proceedings in relation to

abuse of process which will be heard first in

either next week or the week after.

MASON CJ: What are the consequences of a finding that your

client is unfit to plead?

MR CHARLES:  As I understand it, Your Honour, what then

happens is that the prosecution proceeds, him being

unfit to plead, to prove a prima facie case.

Having proved a prima facie case, the matter then

stops and awaits a period of 12 months or something
of that kind - I do not know the precise details -
to see if, within that time, the accused regains a

condition in which he is fit to plead.

MASON CJ: What happens to the accused physically if such a

finding is made? Are there any consequences in

relation to that?

MR CHARLES:  I am told my friend, Mr Weinberg, knows the

answers to these questions. I must confess,

Your Honours, that my substantial ignorance of them

is, I am sure, already apparent but I am happy to

have Mr Weinberg answer them, although I do

understand there is some difference of view between

the parties as to what is either the proper course

and the meaning of the sections.

DEANE J: But, you are not making any application in

relation to this now, or seeking leave to make an

Polyukhovich(3) 274 5/9/90

application to a single Justice if you are so

advised?

MR CHARLES:.:.. Not at this stage, Your Honour, but may I seek

instructions?

DEANE J: Well, I am not trying to prompt you. I just want

to be clear.

MR CHARLES:  No, I understand Your Honour is not but I am

not, at this time, Your Honour.

DEANE J: Thank you.

McHUGH J: If there was a finding on fitness to plead, I

suppose your retainer would come to an end?

MR CHARLES:  It has not yet, Your Honour, and the matter

does not become hypothetical if what I have put to

the Court has any correctness at all because the finding of unfitness to plead does not determine the proceedings. Also, I am instructed, it does not mean necessarily that he is mentally incapable

of giving instructions. It can bear either on that

or on the man's physical condition.

MASON CJ: Well, Mr Charles, you have indicated that you

will give consideration to the matter and if so

advised you may make an application.

MR CHARLES:  Yes, Your Honour.

MASON CJ: That is your position at the present time.

MR CHARLES:  Yes, but we are not making an application now.

MASON CJ: No. Well, in those circumstances it does not

seem necessary for us to ascertain from Mr Weinberg

what his views are about the matter or the

consequences.

MR CHARLES: Yes, Your Honour.

MASON CJ: That being so, the matter should stand adjourned

to a date to be fixed.

MR CHARLES:  I have certainly completed my submissions,

Your Honours.

MASON CJ: Yes, but in the meantime, as the Solicitor for

New South Wales has pointed out, it will be

necessary to serve a 78B notice.

MR CHARLES:	Yes.
DEANE J:	Do you propose to add anything on whether,

assuming you be correct in terms of retroactive

Polyukhovich(3) 275 5/9/90

legislation, that is consistent with Chapter III of

the Constitution?

MR CHARLES:-- We had submitted this morning - - -

DEANE J: I follow that. Again, I was not suggesting you

should. I was just inquiring whether -

MR CHARLES:  Your Honours, we have made detailed submissions

in writing. They are very lengthy and there is

detailed reference to the cases. we, I must say,

for that reason had not made extensive reference to

case material in the course of these submissions.

Obviously, members of the Court will read them and

give them such weight as they deserve and we

certainly did not, at the moment, have any

intention of making further submissions.

DEANE J:  Thank you.

MASON CJ: Very well, the matter will stand adjourned to a

date to be fixed.

MR CHARLES: If the Court pleases.

AT 4.17 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Polyukhovich(3) 276 5/9/90