Polyukhovich v The Commonwealth of Australia

In the High Court of Australia, Ivan Timofeyevich Polyukhovich brought proceedings against the Commonwealth of Australia. The dispute concerned the validity of certain legislation, with the plaintiff asserting its invalidity. The Solicitor-General for the Commonwealth, appearing for the first defendant, indicated that the Commonwealth had provided the plaintiff with a list of materials and a summary of arguments concerning the external affairs power, which formed the basis of their defence.

The central legal issue before the Court was the scope and application of the external affairs power under the Australian Constitution. Specifically, the Court was required to determine whether the legislation in question was supported by this power, which often involves an examination of international law and international concern regarding particular matters. The Commonwealth argued that the existence of international concern was a matter of constitutional fact that the Full Court itself must determine, rather than something that could be agreed upon by the parties or referred to a single Justice.

The Commonwealth's reasoning was that the determination of international concern, as it relates to the external affairs power, is a question of constitutional fact that necessitates the consideration of a body of material, including international law and the statutory materials of other countries. They submitted that this determination was a matter for the Full Court to undertake, as it could not be resolved by agreement between the parties. The Court was presented with draft documents and supporting materials to facilitate this inquiry.