Polyukhovich v The Commonwealth of Australia

[1990] HCATrans 112

..

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• ~

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

First Defendant

and

ROBERT WILLIAM REID

Second Defendant

Directions hearing

Polyukhovich(2)

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 17 MAY 1990, AT 11~33 AM

Copyright in the High Court of Australia

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MR S.P. CHARLES, QC:  I appear with my learned friend,

MR N.J. YOUNG,for the plaintiff. (instructed by

David Stokes & Associates)

MR G. GRIFFITH, QC, Solicitor-General for the Corrnnonwealth:

I appear with MR H. BURMESTER for the first

defendant. (instructed by the Australian Government

Solicitor)

MR J.G. SANTAMARIA: If the Court pleases, I appear on behalf

of the second defendant. (instructed by the

Commonwealth Director of Public Prosecutions)

MR GRIFFITH:  Your Honour, when this matter was previously before

Your Honour we indicated that we had made available

to the plaintiff's counsel a list of materials and

also a surrnnary of the argument in respect of the

external affairs power issue that would be the basis

of our defence to the assertion for invalidity of the

legislation. We indicated that the materials would be made available - that were referred to in the list

would be made available to counsel. Some materials

were immediately made available that day and the

balance, save for specific legislative material, was

made available on Friday. We are at the position, so

far as the first defendant is concerned, and I think so far as the second defendant is concerned, that we

say that that represents the body of material that

we intend to rely upon to establish our propositions

which, I think, Your Honour has now been able to see

by having a draft of the present version of - - -

HIS HONOUR:  Yes, I have two documents: one is described as

"Rough draft 3, 7 May" and the other is "Draft 4,

9 May" and then there are the supporting documents.

MR GRIFFITH: Yes, which Your Honour, I think, has had a copy of

the supporting documents such as we have already

serviced which Your Honour will see is not complete

so far as the third list, listed items of various

other statutory materials of other countries which

are, obviously enough from the index, what those

materials cover.

So our position is, Your Honour, we say that

this is all the material that need be before the

Court to enable the Court to find and we see it as

a matter of inquiry for the Full Court, rather than
one for there to be any remitter to a single Justice

of this or another court to determine, because we

say the issue here is matters, firstly, of

international law and, secondly, of constitutional

fact which, firstly, Your Honour, we would submit

cannot be determined by agreement between the parties.

We would say it must be determined by the Court.

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We would say, secondly, Your Honour, it must

be determined by each of the members of the Court

and not by reference to a single Justice.

In that context, we say we are prepared to comply

with the proposed course of procedure that we outlined

when this matter was previously before Your Honour

and to del i.ver a full summary of our argument as was

proposed to be delivered next Tuesday or Wednesday.

Having got to that point, we are mindful of

Your Honour's reference to the requirement that it

be quite clear that the case was ready to proceed on

30 May and, Your Honour, as we understand it, and

perhaps my learned friend Mr Charles can elucidate it,

it is the plaintiff's approach that it may well be

that concessions can be made as to the extent to

which this material creates some evidence of, for

example, international concern, but it does not go

far enough to constitute the international concern

sufficient to support legislation of this sort under

the external affairs power.

HIS HONOUR:  The existence of international concern about a

particular topic would be a matter of fact, would it

not?

MR GRIFFITH:  We would say, Your Honour, it is a matter, though,

of constitutional fact for the Full Court itself

because we would say once the existence of the

international concern had been admitted, that would

carry with it the result, in our submission, subject

to any argument as to whether or not the legislation

does reflect the content of the identified matter of

international concern. So we would see it determinative

as a constitutional fact.

HIS HONOUR: All I was suggesting - or going to suggest was

that the determination by a single Justice of a matter

of constitutional fact would not preclude the Full

Court from taking a different view of that

constitutional fact.

MR GRIFFITH:  Yes. Your Honour, we would say that not only

would it not preclude it; it would not take the

matter any distance at all. We would submit it
would take it no further for the Full Court than if

the parties agreed.

HIS HONOUR:  In an abstract way I can understand that, but as

a matter of practicality you often find that if a

single Justice looks at a number of matters that

tend to be complex on their face, he performs the

useful purpose of sorting out the facts and elucidating

them.

MR GRIFFITH:  Yes. Your Honour will see from our summary that

that function, in so far as we make a case on the
materials, is carried out, we would submit, by the

draft 4 that we have given to Your Honours.

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HIS HONOUR:	But what is the issue between the parties at the present time, Mr Solicitor?	I have not quite
understood that.

MR GRIFFITH:  Your Honour, the issue seems to be, as I understand

it, my learned friend says with an opportunity for

further consideration of this material there may be

some matters that we do not desire to put in issue

and identify matters of degree of international concern

as the issue. Now, Your Honour, our response as to

that is to say, well, that really does not matter very

much because whether you concede some element or not,

it is still for the Court to determine; even if you

conceded all of it, it would still be necessary for

the Court to be satisfied.

That is entirely up to you to run your case as

plaintiff as you choose fit, so that we do not see

any advantage in refining this issue if it is going

to mean that we vacate the date. Now, it might be,

Your Honour, that by the time we get to Court - - -

HIS HONOUR:  But if you vacate the date and "vacate the date"

may be too strong a term, because the matter is
only provisionally in the list for 30 May, it is

not definitely"in"the list for 30 May at this stage

because I have always had it in mind that it might

not be ready to go on on that date, but is not the

reality this: if there is further discussion between

the parties, it will assist in fining the case down,

certainly in terms of its presentation?

MR GRIFFITH:  Only conditionally. We say the Court would still

have to be satisfied even as to matters that were

not - - -

HIS HONOUR: Granted that for the moment, Mr Solicitor, but

none the less, if you know that your opponent is not

contesting a range of matters, quite clearly, I would

have thought, it would result in a shorter time in

presentation.

MR GRIFFITH:  We entirely agree, Your Honour. We are quite

happy - - -

HIS HONOUR:  And the other thing is this: if the case does not

go on on 30 May, as presently advised I intend that

it should go on in the August sittings of the Court.

MR GRIFFITH:	Your Honour, we would prefer May to August.
HIS HONOUR:	Why, Mr Solicitor?
MR GRIFFITH:	Your Honour, because - perhaps my learned friend

Mr Santamaria can elucidate, but there are other

prosecutions in the pipeline and there is a committal

proceeding which is contemplated- - -

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HIS HONOUR:	But presumably that will go ahead in any event.
MR GRIFFITH:	The other prosecutions are in issue.
HIS HONOUR:But two months, surely.	Two months, when one bears

in mind, as it were, the endless span of years

since 1942.

MR GRIFFITH:  Your Honour, with respect, I must agree, because

it is not so much the time when the matter is

argued, it is when judgment is given that is the

relevant date, so I can say no more, Your Honour.

HIS HONOUR: Exactly. Yes. Yes, Mr Charles. By the way, should

I call on Mr Santamaria first, Mr Solicitor?	Is he
generally supporting your - - -

MR GRIFFITH:  I believe he does, Your Honour, but he can perhaps

assist on Your Honour's last question or some other

way, so yes, Your Honour.

HIS HONOUR: 

Yes, Mr Santamaria.

MR SANTAMARIA: 

Your Honour, I think you are ..... to the very point we were going to make, that there is a committal

which is taking place out of Australia, evidence is

being taken during July and it would be convenient,

in a sense, I suppose for everyone if judgment in this
matter occurred before then, but obviously there are
other considerations that have to - - -

HIS HONOUR: 

I would say prospect of judgment being delivered

in this matter before then is almost a figment of the
imagination, Mr Santamaria. Yes, Mr Charles.

MR CHARLES: 

Your Honour, I can give an indication of the general nature of the area of dispute between my friends and

the plaintiff.  Your Honour will appreciate that

although I must insist that we have not in any way

been dragging our heels, we cannot say that we are

ready for trial at this stage. 

HIS HONOUR: 

Yes. That seems to me to preclude a hearing on 30 May.

MR CHARLES: 

Your Honour, I accept that.

HIS HONOUR: 

Is there any difficulty in the matter being heard in August?

MR CHARLES: 

So far as the plaintiff is concerned, Your Honour,

no, although the dates that have been suggested, I

think, to us in September were the ones	- in the
first week in September - - -

HIS HONOUR: The Registrar points out to me there is some

ambiguity about August because there is only the

sitting of one week and we may not be able to manage

it then, but what about 5 and 6 September?

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MR CHARLES: That would be perfectly acceptable, so far as the

plaintiff was concerned, Your Honour.

HIS HONOUR:  No difficulties from your point of view,

Mr Solicitor?

MR GRIFFITH:	No, Your Honour.
HIS HONOUR:	Mr Santamaria?

MR SANTAMARIA: It is

HIS HONOUR:  Is there any risk that the case will not be ready

to go on then?

MR CHARLES:  I cannot see any reason why the case could not

proceed then. We- - -

HIS HONOUR:  What are the difficulties from your point of view

in relation to the documents that have been presented?

MR CHARLES: Only, Your Honour, that they are voluminous and,

secondly, that we may wish to supplement them.

HIS HONOUR:  Now, can you give any indication to us at the present

stage as to what supplementation might take place?

MR CHARLES:  Yes, I can, Your Honour. The Court will have seen

from looking at the third and fourth drafts that

what is put in issue by the Commonwealth is a

submission that there is an obligation of international

law which depends, in the first place, upon the

prosecution of war criminals being a matter of

international concern and, secondly, that the Act

gives effect to an obligation which has been put now
in varying ways, that Australia seek out and
prosecute or extradite persons guilty of serious war

crimes.

The particular focus of the plaintiff'~ researches

at the present time, Your Honour, relates to the

qestion of extradition and the part that plays in

international law and international concerns. One

of the main arguments that we would certainly be

seeking to put before the Court is that in so far as

there is an international obligation it is limited
to making available extradition and does not extend to the prosecution in Australia of persons found to

be war criminals.

Secondly, Your Honour, in so far as there is

a matter of international concern, we would wish to

investigate and have not completed those

investigations, the precise nature and extent of that

concern and whether, properly viewed, it is limited

to making persons available for extradition. Now,

those researches may lead us to want to put some

further material before the Court. I cannot say at

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this stage what those materials might be. It may
well be that the material now before the Court will

provide all the material we wish to rely on for this

purpose. But I cannot give the Court yet that firm

undertaking.

HIS HONOUR:  Now, coming back to something that the Solicitor

said earlier. Do you see any difficulty in the

matter being determined by the Full Court or "the"

matters being determined by the Full Court rather

than as it were by a single Justice in the first

instance?

MR CHARLES:  Your Honour, I accept what my learned friend has

said, that these are matters of both law and
constitutional fact and that the proper forum for

that determination would be the Full Court.

HIS HONOUR: 

And you do not think that the materials would be

so voluminous as to deter the Full Court from dealing
with the matter in the first instance?

MR CHARLES: 

I would hope, Your Honour, that once these issues

have been properly teased out between the parties,

that we would be able, on both sides, to put before
the Court a book of materials which may in itself be

voluminous but which would be properly sourced so

that members of the Court would be able to see the way

in which both or all three sides relied upon

particular pieces of material for proof or argument.

HIS HONOUR:  Yes. My recollection is - and my recollection was

sparked by the references to KOOWARTA in the

documents supplied by the Solicitor - that in KOOWARTA

the Full Court itself was satisfied by materials

handed to the Full Court by the parties that there was

international concern in relation to racial

discrimination and I do not think there was any

hearing in KOOWARTA; all that occurred on a demurrer,

if I remember rightly.

MR CHARLES:  Indeed. Of course the main example in the other

direction was the DOGS' case, if I may call it that.

We would submit that it would not be a helpful

exercise to follow the course that was preferred

there, of sending off these matters for trial or for

hearing by one member of the Court. I accept what

my friend has said that ultimately these matters are

going to be questions for determination by all members

of the Court.

HIS HONOUR: Now, one question that does arise. Does the

estimate of two days still hold good?	It would not
affect a hearing in September. If the	case were to
take longer than two days, there still	would be time
in September but it would assist us if	we could get
as accurate an assessment as possible.

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MR CHARLES:	Your Honour, I believe two days is a reasonable estimate of the time that can be taken. I cannot
guarantee that the matter will finish in two days but it would not take very much longer if it did
exceed that time, less than an additional half day
at the outside, I should have thought.

HIS HONOUR:  Yes. And no indication at the moment that there

would be any intervention by the States?

MR CHARLES:  I have heard it suggested, Your Honour, that

Victoria may wish to intervene.	I understand
Queensland will not.

HIS HONOUR:  Yes. Very well, is there anything else you wish

to say?

MR CHARLES:	Your Honour, only if it will be helpful to address the matter that my friend, Mr Santamaria, has
raised.  I should not have thought that the position
of the plaintiff would be any different in relation
to the committal proceedings.  I accept entirely
what Your Honour has said, that certainly the plaintiff
cannot have proceeded in relation to the present
committal on any assumption that this Court would have passed upon this Act before the committal proceeding
began. It would seem to follow, Your Honour, that the
plaintiff's position cannot vary in consequence of
this matter being adjourned to a date in September.

Apart from that, Your Honour, I must say that I

have not been able to obtain firm instructions from

my solicitor who is somewhere in central Europe,

having, I understand, been denied a visa to enter the

Soviet Union, but short of that, Your Honour, I cannot

see any reasonable argument being put forward to say

that the adjournment of this case should in some way

affect the committal proceedings.

HIS HONOUR:  No.

For my part, I can see no reason why the fact that the case is not corning on for hearing in this

Court until September should affect the hearing of

the committal proceedings.

Would 4 September be a suitable date, just in case it may proceed for more than two days?

MR GRIFFITH:  Your Honour, I was going to say something about

length. We were informed that New South Wales

intends to intervene and the nature of our alternative

submissions is such that it might be expected that

other States will intervene, for example, on matter

external to Australia. Perhaps even a passing

reference to nationhood might excite their interest.

One does not know, Your Honour, so that- - -

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HIS HONOUR:  I asked the question because I was concerned about

its impact on the duration of the hearing.

MR GRIFFITH:  To be realistic, Your Honour, now one State is

in, three days would be safer. We expect it would

take us no more than three hours to deal with the

materials and no more than two hours at the most

to cover the rest of our argument. Much of the

argument is covered as we cover the materials, so

that that might be an over-estimate, Your Honour, but

the nature of these things, if there is interest

excited from the States, one might fix two and a half,

three days, but certainly not over three.

HIS HONOUR:  Yes. It is very difficult to estimate in a case

like this. One does not know how counsel are going

to excite the interest of members of the Court in

relation to some of the material.

MR GRIFFITH: Precisely, Your Honour. The other thing is we,

as Your Honour has seen, have exposed our argument

and the way we are going to deal with the materials.

Now, we would suggest, Your Honour, that my learned

friend should - and we do not ask for an order -

but just contemplate reciprocate, say, within 30 days.

HIS HONOUR: Is that agreeable, Mr Charles?

MR CHARLES:  Yes, Your Honour.

MR GRIFFITH: With the view to reference as to materials being

included in a full argument, as it were, on the

external affairs point.

HIS HONOUR:  Yes. In other words, he would reciprocate by

providing submissions and materials in the same

fashion as you have done.

MR GRIFFITH:  Your Honour, it is probably sufficient to confine

that to the external affairs argument because

defence, influx, nationhood, they are subsidiary

and fairly obvious, although we will, a week or so

before argument, make a full argument covering them

and still deliver it to the Court.

HIS HONOUR:  I was going to suggest that the parties might, when

they have finalized the form of their argument and

their materials, deliver copies to the Court.

MR GRIFFITH: Would a week or so before be sufficient?

HIS HONOUR:	Yes, that would be quite sufficient.
MR GRIFFITH:	Your Honour, we would say then that really would

expose the case and that cross references of materials

would be there and it might substantially shorten the

oral argument. There are no surprises in this case

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as we see it, Your Honour. In that context,

Your Honour, if my learned friend can more or less

reciprocate within 30 days, we would expect that

between counsel we could get to the point where the

Court would have the benefit more or less of the
case a week before and we would serve copies on

interveners and whatever as well.

HIS HONOUR:  Yes, it might even be possible for you, with the

assent of Mr Charles, to deliver some short document

to the Court which indicated the areas of dispute

between the parties.

MR GRIFFITH:  Yes, we would expect that to come out of my

learned friend- - -

HIS HONOUR: After you have considered Mr Charles' response

it might be possible to produce a short document
with his agreement which would give the Court a

conspectus of what the issues were.

MR GRIFFITH:  Yes, we would be able to prepare that synopsis

if my learned friend is able to indicate that and

possibly then, Your Honour, two days would be enough.

But it is difficult to say.

HIS HONOUR:  I think we should proceed on three days at the

moment and then, if it transpires that you are able

to give the Registrar an indication that the time

would be shorter, then perhaps we could do something

about it.

MR GRIFFITH: If Your Honour pleases.

HIS HONOUR:  Very well. The matter will be disposed of on that

basis. There is no need for me to make any formal

order.

MR GRIFFITH: Thank Your Honour.

AT 11.57AM THE MATTER WAS ADJOURNED SINE DIE

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