Polyukhovich v The Commonwealth of Australia

In *Polyukhovich v The Commonwealth of Australia*, the High Court of Australia considered a question reserved for the Full Court concerning the constitutionality of the *War Crimes Amendment Act*. The applicant, Ivan Timofeyevich Polyukhovich, challenged the Act, and the Commonwealth of Australia and Robert William Reid were the respondents.

The legal issues before the Court included the constitutional validity of section 13(2) of the *War Crimes Amendment Act* and, more broadly, whether the Act as a whole could survive if section 13(2) were found to be invalid. The Court was also asked to consider whether Chapter III of the Constitution implied a guarantee of a fair trial, and if Parliament could legislate in a manner inconsistent with the basic requirements of justice for federal courts.

Counsel for the applicant argued that if section 13(2) of the Act were unconstitutional, the entire Act should be struck down due to non-severability. It was submitted that an Act creating new offences with unique elements and defences could not stand if those defences were invalidated without the entire legislation being recast. Furthermore, the applicant contended that Chapter III of the Constitution implied fundamental requirements for a fair trial, such as an unbiased judge, the right to be heard, and the opportunity for both parties to present evidence, and that Parliament could not compel federal courts to act contrary to these principles.