Polyukhovich v The Commonwealth - [1991] HCA 32 - HCA 1942 case summary — Zoe

CTHHCA

Polyukhovich v The Commonwealth

[1991] HCA 32

High Court of Australia|1942-09-01|Before: McHugh JJ

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Court

High Court of Australia

Decision date

1942-09-01

Before

McHugh JJ

Source

Original judgment source is linked above.

Judgment (796 paragraphs)

[1]

High Court of Australia Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Polyukhovich v The Commonwealth [1991] HCA 32

[2]

ORDER Answer the question reserved as follows:Is Section 9 of the War Crimes Act 1945 Cth, as amended, invalid in its application to the information laid by the second defendant against the plaintiff? Answer: No. No order as to costs.

[3]

The plaintiff is an Australian citizen and a resident of South Australia. He brought an action in this Court seeking a declaration that the War Crimes Amendment Act 1988 Cth is invalid and, or in the alternative, a declaration that ss. 6(1), 6(3), 7, 9 and 11 of the War Crimes Act 1945 Cth as amended ("the Act") are invalid. The plaintiff's interest in seeking declaratory relief of this kind arises from the circumstance that the second defendant laid an information against the plaintiff alleging that, between 1 September 1942 and 31 May 1943, the plaintiff committed war crimes in the Ukraine. Each of the crimes is alleged to have been a "war crime" within the meaning of s. 9 of the Act, being a "serious crime" within the meaning of s. 6 of the Act. In each instance the crime was alleged to have been committed at a time when the Ukraine was under German occupation during the Second World War. It is common ground that at the time of the commission of the alleged offences there was no Australian legislation in force which purported to make it a criminal offence on the part of an Australian citizen or resident to do such acts in the Ukraine as the plaintiff is alleged to have done.

[137]

(whether or not involving Australia or a country allied or associated with Australia) in so far as it occurred in Europe in the period beginning on 1 September 1939 and ending on 8 May 1945. Section 7 thus has effect, so far as it relates to "war", to any armed conflict occurring in Europe during the same period as that prescribed by s. 9(1)(a), whether the armed conflict involved Australia or not. The Commonwealth submitted that this section is to be read as importing by implication the requirement that the relevant conduct be a war crime or a crime against humanity by international law. This submission cannot be accepted. There is nothing in the framework of the Act which provides any foundation for implying an element which is not expressed. Although the suggested implied element would limit the exposure of persons to conviction, the Act expressly purports to deal with the requirements which, when added to the definition of "a serious crime", satisfy the element of "a war crime". As the preamble demonstrates, the Act was intended to provide for the bringing "to trial in the ordinary criminal courts in Australia" of "persons who committed serious war crimes in Europe during World War II", and ss. 6 and 7 were the legislative expression of what were perceived to be war crimes of serious degree. There is no legislative indication that the words of s. 7 should be read as importing into the definition of the term a war crime in s. 9 the definition of a war crime at international law. A war crime in international law is a violation of the laws and customs of war. Those laws and customs limit the belligerents' choice of means of injuring enemy forces, controlling enemy prisoners of war and treating enemy civilians, but are silent as to acts which do not contravene those limitations. Sections 6 and 7 do not import those limitations. Indeed, the sections assume that any killing, not justified or excused under the general law applicable (ordinarily to civilians) in Australia during the prescribed period, would amount to culpable homicide.

[146]

The practical operation of sub-ss. (4) and (5) of this section may be open to debate, but its substantive effect is clearly to introduce a modification to the relevant system of Australian municipal law. Section 17 has been inserted in an attempt to provide, under municipal law, some justification or excuse for some acts of belligerents in war - a justification or excuse not usually provided by municipal criminal law: see Brierly, The Basis of Obligation in International Law (1958), pp. 297-298. In due course it will be necessary to consider whether the provisions of the Act correspond with the provisions of international law but, in considering whether the Act incorporates international law into its definition of "a war crime", we must refer briefly at this stage to some of the rules of international law. Thus, in construing s. 17, it is clear that the draftsman misunderstood the effect of the laws, customs and usages of war, for they give no permission for acts which would otherwise be forbidden; they simply forbid particular means of injuring enemy forces, controlling enemy prisoners of war or treating enemy civilians. Therefore, to give some effect to s. 17(2)(a), "permitted by" must be read as meaning "not in contravention of". However, by reading s. 17(2) in that way, any justification or excuse for "a serious crime" which was committed by a belligerent as a belligerent in time of war but which was not a violation of the law and customs of war must be found, if at all, in the relevant municipal law of a State or Territory. Yet the municipal law of the States and Territories contains no justification or excuse which might protect belligerents against liability to conviction for the deliberate killing of one who is not outside the protection of the municipal law. Alternatively, sub-s. 2(a) might be read as having the precise meaning which sub-s. (3) attributes to it, so that a "defence" is available when the act charged was reasonably justified by the exigencies and necessities of the conduct of war and was not under international law a crime against humanity. In due course, it will be necessary to consider more precisely the meaning and effect of s. 17(2) in order to ascertain whether it imports the elements of a war crime under international law. For the moment, it is sufficient to note that, once the reader is directed to the provisions of s. 17, it is impossible to read ss. 6 and 7 as though they impliedly imported international law to provide a definition of, or an element in the definition of, "a war crime" for the purposes of s. 9.

[162]

The Act thus exposes to punishment by a court of a State or Territory exercising jurisdiction under municipal law any person who (a) being an Australian citizen or resident when charged with the offence; (b) committed an act of the kind referred to in s. 6; (c) in Australia or outside Australia; (d) between 1 September 1939 and 8 May 1945 (inclusive); (e) in circumstances (defined in s. 7) connected with any armed conflict in Europe between the dates mentioned, whether Australia was involved in that conflict or not; (f) being an act that is not "permitted by" the laws, customs and usages of war or being under international law a crime against humanity. It is immaterial that, when the relevant act was done, the person who did it was not then an Australian citizen or resident, that no Australian citizen or resident nor any person under or entitled to the protection of Australian law was the victim or likely victim, that the armed conflict in the course of which the act was committed did not involve Australia or that the act was lawful according to the laws of the place where the act was done at the time when it was done. Whether or not any relevant Australian interest was involved when the relevant act was done, it is sufficient for the purposes of the Act that the person who did the act has become an Australian citizen or an Australian resident. The Act is truly retrospective in its operation: that is to say, it attaches penalties under Australian municipal law to the doing of an act to which that penalty was not attached when the act was done. Under this Act, the plaintiff is charged with offences allegedly committed in 1942 and 1943 in the Ukraine during Germany's occupation of that territory. It is alleged that he wilfully killed a number of people in pursuit of German policies - either a policy of persecuting the Jewish people or those opposed to German policies or a policy of annihilating suspected partisans or communists. The plaintiff was not then an Australian citizen or resident.

[169]

The [external affairs] power extends, in my opinion, to any affair which in its nature is external to the continent of Australia and the island of Tasmania subject always to the Constitution as a whole. A wide view of the power was also taken by Mason, Jacobs and Murphy JJ. [98] . In Koowarta [99] , Mason J. said that " "external affairs" covers any matters or concerns external to Australia." In the contexts in which these observations were made, no question arose as to the connexion between Australia and the extraterritorial person, thing or event to which the particular Commonwealth law applied. Australia's connexion with its maritime boundaries in the one case and with its treaty obligations in the other was manifest. But it is argued that, although there must be some connexion between the extraterritorial operation of a State law and the extraterritorial persons, things or events on which a State law operates (Port MacDonnell Professional Fishermen's Association Inc. v. South Australia [1] ), no such connexion is required in the case of a Commonwealth law. If such a connexion were required, so the argument runs, there would be a lacuna in the plenitude of legislative powers which the Australian legislatures, Commonwealth and State, together possess: see per Jacobs J. in the Seas and Submerged Lands Case [2] . But the powers conferred by the Constitution are not to be expanded beyond their true scope merely to supply what is thought, from the public viewpoint, to be a desirable or convenient power. Limits on power are the measure of private immunity from legislative action by the State. The legislative powers of the Parliament are limited by the terms of the Constitution, and the connotation of the phrase "external affairs" must be ascertained from its context and purpose. Accepting fully that s. 51(xxix) is not to be narrowly construed (The Commonwealth v. Tasmania (the Tasmanian Dam Case) [3] ), nevertheless the power thereby conferred is limited. Although the phrase "for the peace, order, and good government of the Commonwealth" itself contains no territorial limitation (Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. [4] ), it does not expand the connotation of the phrase "External affairs" in s. 51(xxix). Just as the power conferred by s. 51(xx) "remains a power to make laws with respect to immigration into and emigration from Australian territory", as Menzies J. pointed out in Reg. v. Foster [5] , so the power conferred by s. 51(xxix) remains a power to make laws with respect to Australia's external affairs. I do not understand the phrase "external affairs" to sweep into Commonwealth power every person who exists or every relationship, set of circumstances or field of activity which exists or occurs outside Australian territory. The "affairs" which are the subject matter of the power are, in my view, the external affairs of Australia; not affairs which have nothing to do with Australia. Although affairs which exist or occur outside Australia may be described as "external" in a geographical sense, I would not hold that the Constitution confers power to enact laws affecting affairs which, though geographically external, have nothing to do with Australia. There must be some nexus, not necessarily substantial, between Australia and the "external affairs" which a law purports to affect before the law is supported by s. 51(xxix). 1. (1975) 135 C.L.R. 337, at p. 360. 2. (1975) 135 C.L.R., at pp. 470-471, 497, 503. 3. (1982) 153 C.L.R., at p. 223. 4. (1989) 168 C.L.R. 340, at p. 372. 5. (1975) 135 C.L.R., at p. 497. 6. (1983) 158 C.L.R. 1, at pp. 220-221. 7. (1959) 103 C.L.R. 256, at pp. 300-301, 307-308. 8. (1959) 103 C.L.R., at p. 301.

[170]

It may be that this view of the scope of the external affairs power corresponds with the legislative competence of Australia as recognized by international law. The internationally recognized competence of a domestic legislature is illustrated by " Le Louis " [6] , a case in which a question arose as to the limits of domestic legislative power under international law. In proceedings for the condemnation of a French ship for being employed in the slave trade, the seizors sought to rely upon a British statute which made the slave trade illegal. At that time, slavery was not illegal by the law of nations and it was held that "[t]he Legislature must be understood to have contemplated all that was within its power, and no more" [7] . Although the power of the Legislature to enact extraterritorial legislation was not denied, it was acknowledged that, by the law of nations, the plenitude of legislative power claimed by the United Kingdom Parliament would not be recognized internationally where there was no occasion for its exercise. The general terms of the statute were construed in accordance with the limits recognized by international law. However, the correspondence between the scope of the power conferred by s. 51(xxix) and that recognized by the law of nations is not a question which we have to decide in this case. The scope of the constitutional power is not determined by the law of nations, much less by international opinion as to Australia's connexion with a particular subject matter. We are here concerned solely with the limits of a power conferred by the Constitution. The recent cases relating to s. 51(xxix) show that the power thereby conferred enables the Commonwealth to legislate for the purpose of discharging the responsibilities and asserting to the full the interests of Australia as an independent member of the community of nations: the Seas and Submerged Lands Case; Koowarta ; the Tasmanian Dam Case; Gerhardy v. Brown [8] ; Richardson v. Forestry Commission [9] ;Mabo v. Queensland [10] . It is a plenary power exercisable as well in protection of Australia's international interests as in performance of its international obligations. But s. 51(xxix) does not arm the Commonwealth with power to enact laws governing affairs outside Australia with which Australia has no connexion. It is, of course, for the Parliament to determine in the first instance whether there is any connexion between Australia and a relationship, set of circumstances or field of activity which exists or occurs outside Australia and which a proposed law would purportedly affect, but, if the legislative judgment cannot reasonably be supported, the law will be held to be outside the power conferred by s. 51(xxix): see Richardson [11] ; Gerhardy v. Brown [12] . It leaves no great lacuna in the plenitude of Australian legislative power to deny the character of a law with respect to external affairs to a law which does no more than affect something or somebody unconnected with Australia occurring or existing outside Australia. To take an extreme example: would a law be properly characterized as a law with respect to external affairs if it imposed a criminal penalty on a person who, being a citizen and resident of France, had dropped litter in a Parisian street forty years ago? The limits of the power conferred by s. 51(xxix) are, in a real sense, a guarantee of the immunity from harassment by Australian law of persons who, having no connexion with Australia, engage in conduct elsewhere which does not affect Australian interests or concerns.

[173]

However, the Act does not purport to affect the conduct of Australian citizens or residents outside Australia. It does not attach any penalty to conduct in which any such person might engage outside Australia. The conduct which is made a condition of present liability to conviction is past conduct of the kinds prescribed by the Act which occurred during the prescribed period, being conduct that was engaged in by any person. It is immaterial to liability whether the victims of any such conduct were under the protection of Australian law. If it be said that the Act bears the character of a law with respect to the "serious crimes" which fall within s. 7(1) or s. 7(3), the question is whether those crimes, at the time when they were committed, were then an aspect of Australia's external affairs. Nothing in the Act suggests that a serious crime falling within s. 7(1) or s. 7(3) must be an aspect of Australia's external affairs. The Act does not prescribe as an element of conduct answering the description of "a war crime" anything which connects Australia with that conduct at the time it was engaged in. The element which at first sight may seem to provide some contemporaneous nexus between "a war crime" in s. 9 and Australia is the definition of war in s. 5, for Australia was involved in the European war between 3 September 1939 and 8 May 1945. But, apart from the difference in the commencing date of the prescribed period, the definition of war in s. 5 rejects Australia's involvement in the Second World War as a necessary element in the definition, for the definition is satisfied by any armed conflict "(whether or not involving Australia or a country allied or associated with Australia)". If conduct of the prescribed kind which occurred during the prescribed period was not then an aspect of Australia's external affairs, a fortiori it could not have been an aspect of Australia's external affairs when the Act came into operation on 25 January 1989. Nearly forty-four years had passed between 8 May 1945 and the date when the Act came into operation. Unless Australia's external relations were affected by unpunished "serious crimes" committed more than forty-four years earlier (a question presently to be examined) I am unable to see how an act by an individual in the course of any European armed conflict occurring between 1 September 1939 and 8 May 1945 could be regarded, without more, as an aspect of Australia's external affairs in 1989.

[174]

If "a serious crime" committed by an individual forty-four or more years earlier answering the statutory description of "a war crime" was not itself an aspect of Australia's contemporary external affairs before 8 May 1945, does it make any difference to the character of the Act that the only persons who are liable to conviction must now be Australian residents or citizens? The Act, as we have seen, is a retrospective law which attaches penal consequences to conduct engaged in before the law was made. If the Parliament has power to enact a law which prohibits Australian residents and citizens from engaging in particular conduct outside Australia in future, does it have power to enact a law which exposes to conviction Australian residents and citizens who have engaged in particular conduct in the past? Were the Act restricted in its application to persons who were Australian residents or citizens at the time when "a war crime" was committed, it would be strongly arguable, on the authority of Kidman [13] , that the Act is supportable under s. 51(xxxix) as a retrospective law with respect to the conduct of Australian residents and citizens overseas. In Kidman , a majority of this Court upheld the validity of a law deeming past conduct in defrauding the Commonwealth to be criminal and imposing penal consequences. By analogy, it could be argued that the extraterritorial commission of "a war crime" by Australian residents and citizens was, at that time, an aspect of Australia's external affairs and the retrospective imposition of a criminal penalty on them for engaging in that conduct is simply an exercise of the incidental power which empowers the Parliament to make retrospective laws to punish conduct that was at all material times a subject of legislative power. It is unnecessary in the present case to determine whether, if the Act had retrospectively created an offence which only persons who were Australian citizens or residents at the time could have committed, the Act might have been supported on the authority of Kidman . It is common ground that, at the times of the alleged occurrences of the acts charged against the plaintiff, the plaintiff had no connexion with Australia and was not then either a citizen or a resident of Australia. He subsequently became and is now an Australian citizen and a resident of the State of South Australia. Does his becoming a citizen and resident of Australia transform his earlier conduct into an aspect of Australia's external affairs?

[181]

The Commonwealth submits that the Act discharges an international obligation or meets an international concern that persons alleged to be guilty of war crimes and crimes against humanity be sought out, brought to trial and, upon conviction, punished, irrespective of the place where the crime was committed or where the alleged offender is found and irrespective of the citizenship or residence of the alleged offender or the victim. The propounded matter of international obligation or international concern is not stated merely in terms of seeking out and punishing persons guilty of war crimes and crimes against humanity. A process of trial is concededly an integral part of the postulated obligation or concern. Therefore, the postulated international obligation or matter of international concern is that the guilt of an alleged criminal be ascertained by a court of competent jurisdiction administering a system of law which creates or recognizes the crime with which the alleged criminal is charged. The international instruments relating to the punishment of war criminals have uniformly contemplated trials according to law. In 1942, the Declaration of St. James placed among the main goals of war the punishment, "through the channels of organized justice", of war criminals. In 1943, the Moscow Declaration declared that those responsible for or taking part in atrocities, massacres and mass executions would be "sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein". That Declaration was echoed by a unanimous recommendation of the United Nations General Assembly in Resolution 3(I) of 13 February 1946 which was reaffirmed by Resolution 170(II) of 31 October 1947. The latter resolution "[r]easserts that trials of war criminals and traitors, like all other trials, should be governed by the principles of justice, law and evidence." Then, following a series of further resolutions, the General Assembly declared on 3 December 1973 (Resolution 3074(XXVIII)) that, inter alia -

[201]

It is clear that the term "international concern" possesses no very precise meaning, for it may cover a diverse multitude of topics. However, its meaning cannot carry the external affairs power beyond the fulfilment of the purpose for which it was conferred. The Constitution summoned into existence a new Commonwealth that was to take its place among the nations of the world and, in the fullness of time, to act and to be seen to be acting independently of the Imperial Government. The Commonwealth was equipped not only with executive power, so that its voice might be heard and its actions might be seen by the international community, but with legislative power, so that the Commonwealth might ensure that our municipal laws were conducive to the discharge of our international duties and the effective assertion of our international rights. As treaty obligations and other obligations in international law possess the capacity to affect Australia's relations with other countries, those obligations are a matter of international concern, but not every subject of international dialogue or even of widespread international aspiration has the capacity to affect Australia's relations. One purpose of the external affairs power is to furnish the Commonwealth with legislative authority to ensure that Australia acts in accordance with standards expected of and by the community of nations, even though those standards are not, or have not yet achieved the status of, obligations in international law. The observation of those standards may rightly be regarded as a matter of international concern. However, unless standards are broadly adhered to or are likely to be broadly adhered to in international practice and unless those standards are expressed in terms which clearly state the expectation of the community of nations, the subject of those standards cannot be described as a true matter of international concern. It may be that there are few occasions when the external affairs power is enlivened by the existence of a matter of international concern without a corresponding obligation in international law, but whether the enlivening factor be an obligation or a concern it is necessary to define it with some precision in order to ascertain the scope of the power. Understanding the notion of international concern in this way, the relationship between obligation and concern can be perceived - a relationship which requires elucidation in order to answer the question asked by Dawson J. in Richardson [20] : " if international concern is the touchstone, why is a treaty necessary at all? Why is international concern over a matter not sufficient of itself to bring it within the external affairs power?" It would be erroneous to attribute a scope to the external affairs power which depended on the broadest meaning which could be given to the imprecise phrase "international concern": that phrase is not a constitutional text and it is used to indicate that the power relates to matters affecting Australia's external relations even if those matters are not obligations under international law.

[212]

The prohibitory nature of the laws and customs of war is illustrated by Art. 22 of the Hague Regulations of 1907 which provides: The right of belligerents to adopt means of injuring the enemy is not unlimited. War crimes, being violations of the laws and customs of war, thus consist in acts which transgress the limitations imposed by those laws and customs. Such transgressions are universally condemned and are internationally recognized as crimes which can be tried according to international law by the courts of any nation into whose hands the offender falls. The same national competence was recognized in relation to the offence of piracy, as the Privy Council observed in In re Piracy Jure Gentium [22] : With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but "hostis humani generis" and as such he is justiciable by any State anywhere. Their Lordships' statement that recognition of crimes as defined by international law is "left to the municipal law of each country" should not be understood to mean that international law accepts whatever definition of an international crime the municipal law may contain. Rather, what is left to municipal law is the adoption of international law as the governing law of what is an international crime. So much appears from the judgment of Judge Moore (dissenting, but not on this point) in The S.S. "Lotus" [23] : in the case of what is known as piracy by law of nations, there has been conceded a universal jurisdiction, under which the person charged with the offence may be tried and punished by any nation into whose jurisdiction he may come. I say "piracy by law of nations", because the municipal laws of many States denominate and punish as "piracy" numerous acts which do not constitute piracy by law of nations, and which therefore are not of universal cognizance, so as to be punishable by all nations.

[216]

Since the latter half of the nineteenth century it has been generally recognized that there are acts or omissions for which international law imposes criminal responsibility on individuals and for which punishment may be imposed, either by properly empowered international tribunals or by national courts and military tribunals. These tribunals exercise an international jurisdiction by reason of the law applied and the constitution of the tribunal, or, in the case of national courts, by reason of the law applied and the nature of jurisdiction (the exercise of which is justified by international law). The jurisdiction of the courts of the United States to try cases of international crime was founded on the application by municipal courts of international law. Thus, in an early American case (United States v. Smith [25] noted in the report ofThe Magellan Pirates [26] ), the Supreme Court of the United States held that American common law "recognizes and punishes piracy as an offence, not against its own municipal code, but as an offence against the Law of Nations (which is part of the Common Law), as an offence against the universal law of society; a pirate being deemed an enemy of the human race." In that case and in Ex parte Quirin [27] , the Court spoke in terms which suggested that the courts of the United States applied international law directly as part of the municipal law of the United States. Thus in Ex parte Quirin [28] , the Court said: From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. In In re Yamashita [29] the Court, speaking in more guarded language, observed that - We do not make the laws of war but we respect them so far as they do not conflict with the commands of Congress or the Constitution. (Cf. Art. I, s. 8, cl. 10 of the United States Constitution which confers on the Congress power "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations".) 1. (1820) 5 Wheat. 153, at p. 161. 2. (1853) 1 Sp. Ecc. & Ad. 81, at pp. 90-91 [164 E.R. 47, at pp. 52-53]. 3. (1942) 317 U.S. 1. 4. (1942) 317 U.S., at pp. 27-28. 5. (1946) 327 U.S. 1, at p. 16.

[255]

Section 6(3) of the Act requires a court, in determining whether an act committed outside Australia is "a serious crime" to "imagine another act committed [in a part of Australia] which is similar in all relevant respects" (per Lord Reid in Cox v. Army Council [37] ). Although Lord Reid went on to say that murder and theft "are the same all the world over", there are conceptual difficulties in translating a killing in the course and for the purposes of military activity in Europe (including hostile military occupation of a European State) into a part of Australia. Presumably, in the notional translation directed by s. 6(3)(b), the victim must be treated as having been within "the King's peace" (cf. Reg. v. Page [38] ) so that that element of culpable homicide can be established. But what is the position of an accused who, as a member of military forces, killed "in the course of hostilities in a war" or in any of the other circumstances referred to in s. 7(1)? If it be right to say that the members of an enemy force in occupation of a State are immune from the municipal law of the State provided they do not act in violation of the law and customs of war, an accused looking at ss. 6, 7(1) and 9 of the Act might have argued that his act would not have amounted to one of the offences under municipal law mentioned in s. 6(1) unless it were proved to be an act done in violation of the laws and customs of war. Had that been the effect of the Act, the law of nations would have governed his liability to conviction as for an offence under s. 9. Sections 6 and 7 would have operated as restrictions on liability to conviction for war crimes as defined in international law. But s. 17 precludes that construction. It is enacted as a critical part of a code which determines the liability to conviction of a person who is proved to have committed an act falling within ss. 6 and 7. One cannot postulate, for the purposes of s. 6, that the members of an enemy force are immune from punishment for the municipal law offences mentioned in s. 6(1) except where the act charged violated the laws and customs of war, for that would make s. 17(2) otiose. Section 6 must bring deliberate and wilful killing by a member of an enemy force into the category of "serious crime" unless the usual defences - self-defence, mistake, etc. - are open on the facts of the particular case, leaving s. 17(2) to take out of "a war crime" any killing which falls within its terms. The Act thus displaces the essential character of a war crime under the law of nations as a violation of the laws and customs of war and seeks to make the laws, customs and usages of war a source of excuse. Section 17(2) is misconceived, as Baxter (op. cit., p. 388) explains:

[256]

If, in those states in which war crimes are tried under municipal law, the function of international law is to furnish a justification for acts of warfare which are thereby recognized to be lawful, the law of war loses its reasonableness. The international law of war is "prohibitive law" and its purpose is to place curbs upon the otherwise unrestrained violence of war. Belligerent acts in war are facts, not legal rights, and to set the law to justifying them, instead of keeping them within limits which comport with the dictates of humanity, leads to a law which places its emphasis on the rightness of war to the detriment of what is wrong in war. Any theory which relies on the law of nations as a defence for belligerent acts thus fails to accord with the true raison d'être of the law of war and with the many expressions of the intentions of those who have contributed to its development in recent years. Sub-section (2) does not stand alone as a defence. Sub-section (3) provides a dictionary for sub-s. (2) and calls for a factual evaluation of what was "reasonably justified by the exigencies and necessities of the conduct of war". It may be that the exigencies and necessities of the conduct of war could be construed to embrace any military objective which is not unlawful by the laws and customs of war (see Bindschedler-Robert, "Problems of the Law of Armed Conflicts" in Bassiouni and Nanda (eds), op. cit., vol. 1, p. 295, at pp. 304-306), a construction that would be repetitive of the concepts in sub-s. (2)(a). However that may be, the requirement that the act charged be "reasonably justified" leaves the way open for a jury to make an evaluation of the facts adverse to an accused although the legal restrictions on military action prescribed by the laws and customs of war have not been violated. By the combined operation of sub-ss. (2) and (3) of s. 17, the laws and customs of war are excluded as the legal criterion of criminal liability capable of application by direction of the trial judge and are replaced by the factual criterion of reasonable justification which a jury, probably inexperienced in the exigencies and necessities of the conduct of war, must apply as best it can. 1. [1963] A.C. 48, at p. 70. 2. [1954] 1 Q.B. 170.

[274]

Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. (Emphasis added.) The words italicized limited the scope of the crimes falling within Art. 6(c) and, in effect, restricted them to crimes against humanity which were also war crimes or, pursuant to Art. 6(a), crimes against peace: see Schwelb, Crimes Against Humanity, British Year Book of International Law, vol. XXIII (1946), 178, at pp. 188, 194-195, 206. If war crimes and crimes against peace were, at all material times, crimes against the law of nations, it was unnecessary to consider whether crimes against humanity which were not connected with war crimes or with crimes against peace were crimes against the law of nations. Construing its Charter, the Nuremberg Tribunal said, at p. 249: With regard to Crimes against Humanity there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression, and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute Crimes against Humanity, the acts relied on before the outbreak of war must have been in execution of, or in connexion 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 been satisfactorily proved that they were done in execution of, or in connexion 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 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 connexion with, the aggressive war, and therefore constituted Crimes against Humanity.

[282]

Hand in hand with the speedy enshrinement of genocide as a crime under conventional law, has gone a process of parallel acceptance under customary international law. Kunz (at p. 742) and Green (at p. 225), on the other hand, take the view that the Convention created and defined the crime of genocide for the law of nations. The weight of opinion and international practice as evidenced by the drafting of Art. 6(c) of the Nuremberg Charter show that genocide was not a crime under international law until after the Second World War, and the history of the drafting of Art. 6(c) shows that crimes against humanity were not clearly established as crimes in international law independent of war crimes when the Nuremberg Charter was drafted: see Clark, Crimes Against Humanity in The Nuremberg Trial and International Law, pp. 177-199; but cf. Simons, at p. 49. Thus I come to the same conclusion as that expressed in the Hetherington Report whose summary I would adopt (par. 6.44) mutatis mutandis as applicable to Australia: To summarize, by 1939, before the offences which this Inquiry is required to investigate were allegedly committed, violations of the customs and uses of war, or war crimes as they were later called, were internationally recognized as crimes, both Britain and Germany being among the signatories of the Hague Conventions which confirmed them as such. The Nuremberg judgment also held that such acts were also recognized as crimes under customary international law, which bound even those nations which had not become party to the Conventions. Genocide was not so recognized until 1948 and we find the position of what were subsequently called crimes against humanity to be unclear. Under customary law belligerents had the right to try before military courts war criminals who fell into their hands, and also to provide for the surrender of others in the terms of the armistice or the peace treaty. Legal opinion then held that jurisdiction existed over such crimes and that a state had the right to legislate to incorporate that jurisdiction into its national domestic law. Therefore it can be argued that enactment of legislation in this country to allow the prosecution of "war crimes" in British courts would not be retrospective: it would merely empower British courts to utilise a jurisdiction already available to them under international law since before 1939, over crimes which had been internationally recognized as such since before 1939 by nations including both the United Kingdom and Germany. We are less certain that a similar stance can be adopted with regard to crimes against humanity. To legislate now for offences of genocide committed during the Second World War would, in our view, constitute retrospective legislation. (Emphasis added.)

[306]

The laws and customs of war, including those of military occupation, are well established in international law. They are enacted in national legislation, codified in military manuals, incorporated in binding international conventions, and affirmed by the immemorial practice of states thus becoming a part of the common law of war. In their particular context as a "defence" to conduct which would otherwise be punishable as a "war crime" under the statutory definition contained in the main operative provisions of the Act, it appears to me to be clear enough that the words "was permitted by the laws, customs and usages of war" should be understood as meaning conduct which did not constitute a violation of the then rules of international law prohibiting certain types of conduct towards combatants, prisoners and civilians in or in relation to the waging of war. Such conduct is commonly described as a war crime under international law. That description should not, however, be allowed to conceal the fact that the rules of international law, as distinct from particular treaties, did not, at the time of the alleged offences in the present case (i.e. between September 1942 and May 1943), directly establish or make punishable the criminality of individuals for breaches of the law of war: see, generally, Stone, Legal Controls of International Conflict (1954), p. 357; United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War, (1948), pp. 262ff. International law had long recognized the right of a belligerent State to punish for war crimes not only members of its own forces and those who contravened the laws and customs of war upon its territory but also members of the armed forces of an opposing State who fell into its hands. The development of international law to the stage where it made individuals directly and universally punishable by the International Community or by a State or States acting on its behalf for conduct constituting a war crime was, however, something which occurred after the establishment of the United Nations War Crimes Commission in October 1943. It was closely associated with the development of the principle of international law that conduct of an individual could be a crime under international law notwithstanding that it was done in obedience to government or superior orders (see below).

[310]

Section 17(4) provides that a defendant "is not entitled to rely on a defence" under s. 17(2) "unless there is evidence of the existence of the facts constituting the defence". Section 17(5) provides that, "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". On first impression, sub-ss. (4) and (5) appear to have been framed on the assumption that the question whether the doing of any act falling within the very wide range of s. 7 was permitted by the laws, customs and usages of war and was not under international law a crime against humanity will always involve a defence allegation of additional fact by way of confession and avoidance. Such an assumption would be ill-founded in any case where, regardless of excuse or justification, "the act alleged to be the offence" was not, as a matter of international law, a contravention of the laws, customs and usages of war or a crime against humanity at the time when it was allegedly committed, e.g. some possible examples of the "serious crime" of "manslaughter" (see s. 6(1)(b)) "committed in the course of an occupation": see s. 7(1)(b). Be that as it may, s. 17(4) confirms what s. 17(2) itself clearly indicates, namely, that s. 17 does not add an element to what constitutes a "war crime" for the purposes of the Act. The elements of a "war crime" are to be found in the earlier sections to which reference has been made: in particular, s. 6 which defines a "serious crime"; s. 7 which builds upon a "serious crime" to define a "war crime"; and s. 9 which identifies a past period within which the commission of a "war crime" constitutes an indictable offence. Conduct which constitutes a "war crime" for the purposes of the Act is not punishable as such if a s. 17(2) defence is applicable. Where such a defence involves allegations of additional fact, there must be some evidence of the existence of those facts before the defence can be relied upon. Subject to that qualification, the onus of negativing the defence to the ordinary criminal standard of proof rests on the prosecution.

[320]

three members of the Court, Barwick C.J., Mason and Jacobs JJ., relied on the further ground that the power given by s. 51(xxix) was not limited to authorizing laws with respect to Australia's relationships with foreign countries, but extended to any matter or thing situated or done outside Australia. It is unnecessary to consider whether the words of par. (xxix) can have this dual operation, i.e. whether the phrase "external affairs" can be used to mean matters outside the Commonwealth as well as matters involving a relationship between Australia and other countries. In contrast, Mason J. in Koowarta [59] expressed the view that the question had been determined by the decision in the Seas and Submerged Lands Case which "decided that the power extends to matters and things, and I would say, persons, outside Australia". His Honour added [59] : That decision established, quite apart from the provisions of the Statute of Westminster, that the so-called principle denying an extra-territorial operation to the legislation of a colony had no application to laws enacted by the Commonwealth Parliament. There was, accordingly, no reason why the power should not apply to any matter or concern external to Australia. In Koowarta , Stephen J. (who, like Gibbs C.J., had dissented in the Seas and Submerged Lands Case in relation to the territorial sea) appears to me to have accepted that s. 51(xxix) conferred a general legislative power with respect to matters outside Australia. The word "External", his Honour wrote [60] , qualified "affairs" so as to restrict the meaning of the composite phrase "External affairs" in s. 51(xxix) "to such of the public business of the national government as relates to other nations or other things or circumstances outside Australia" (emphasis added). In the Tasmanian Dam Case [61] , Gibbs C.J. adopted as accurate that suggested "paraphrase" of the legislative power with respect to external affairs. 1. (1982) 153 C.L.R. 168. 2. (1982) 153 C.L.R., at p. 190. 3. (1982) 153 C.L.R., at p. 223. 4. (1982) 153 C.L.R., at p. 223. 5. (1982) 153 C.L.R., at p. 211. 6. (1983) 158 C.L.R., at p. 97.

[321]

Whatever may have been the position before the emergence of Australia as a fully independent sovereign State, it should now be accepted that any law which can properly be characterized as a law with respect to any matter, thing or person occurring or situate outside Australia is a law with respect to "External affairs" for the purposes of s. 51(xxix). In referring to "a law with respect to any matter occurring outside Australia", I intend to include, among other things, what Jacobs J. described (see above) as "any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth". As has been mentioned, that broad view of the scope of the power conforms with settled principles of constitutional construction. It is, as has been seen, arguably part of the ratio decidendi of the Seas and Submerged Lands Case. It is certainly strongly supported by statements in the judgments in that and other recent cases: see, in addition to the above references, Robinson v. Western Australian Museum [62] ; the Tasmanian Dam Case [63] . It is also supported by the consideration that Commonwealth laws with respect to matters, things or persons outside Australia are likely to operate in areas where there will commonly be no competing State interests with the result that, in the absence of Commonwealth legislative power, there would be a lacuna in the plenitude of combined legislative powers of the various Parliaments of the Australian federation. It has long been recognized in this Court that, subject to express and implied constitutional limitations and guarantees, no such lacuna exists in legislative authority in relation to internal matters: see, e.g., Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [64] ; Smith v. Oldham [65] ; Reg. v. Duncan; Ex parte Australian Iron and Steel Pty. Ltd. [66] . With the emergence of Australia as a fully sovereign and independent nation, there remains no acceptable basis for maintaining any such lacuna in the combined powers of the Parliaments of the federation to legislate for this country with respect to extraterritorial matters beyond that resulting from the limitations which the Constitution itself expressly or impliedly imposes. In that regard, it is important to bear in mind that the question whether s. 51(xxix) confers a general plenary legislative power with respect to matters, things and persons occurring or situate outside of Australia does not ordinarily involve what Stephen J. called the "conceptual duality" which applies in a case where the subject matter of a law with respect to external affairs is some matter, thing or person occurring or situate within Australia: see the Seas and Submerged Lands Case [67] . As Stephen J. commented [68] , "the absence of any State interests means that for that area the Commonwealth may act as if it were a unitary state, without need to draw any distinction, if distinction there be, between internal and external aspects of "sovereign rights" " (and see, generally, the discussion in the judgment of Jacobs J. in the Seas and Submerged Lands Case [68] , with which I respectfully agree).

[324]

It should, however, be acknowledged that the question whether the Act can properly be characterized as a law with respect to external affairs for the purposes of s. 51(xxix) to the extent that its provisions are made applicable (by s. 6(1) and (2)) to acts committed within Australia is a more complicated one than the question whether it can be so characterized to the extent that its provisions apply to acts committed outside Australia. In its purported application to local conduct, the Act operates in an area in which it interacts with State laws. Indeed, s. 6(1) makes criminality under the law of the locus State an element of a "war crime". That interaction with State law raises difficult questions about whether the Act, if wholly within constitutional power, should be read down to avoid double jeopardy or double punishment in cases where there has been a trial or conviction under State law for that past criminal conduct and whether State laws are rendered invalid, under s. 109 of the Constitution, to the extent that they would provide for future punishment of a "serious crime" that is liable to be punished, under the Act, as a "war crime". In a context where I am unpersuaded that there is any obligation at all upon Australia under customary international law or under any treaty to enact legislation providing for the further punishment of an individual's pre-1945 conduct within Australia (i.e. punishment additional to the penalty already provided under "the law then in force" in the relevant "part of Australia": see s. 6(1) and (2)), the answer to the question whether the provisions of the Act are, to the extent that they deal with conduct within Australia, properly to be characterized as a law with respect to external affairs for the purposes of s. 51(xxix) ultimately turns upon whether, being a law with respect to acts committed within Australia, they can, in all the circumstances, also be properly characterized as a law with respect to the 1939-1945 war or armed conflict in Europe or whether, if they cannot properly be so characterized, their operation is capable of being reasonably considered to be "appropriate and adapted" to deal with some matter of international concern or to achieve an identified purpose or object which is itself a legitimate subject of external affairs in the sense explained in the Tasmanian Dam Case [69] ; see, also, Richardson v. Forestry Commission [70] .

[333]

The main objective of the sometimes inconvenient separation of judicial from executive and legislative powers had long been recognized at the time of the federation. It is to ensure that "the life, liberty, and property of the subject [is not] in the hands of arbitrary judges, whose decisions [are] then regulated only by their own opinions, and not by any fundamental principles of law" (Blackstone, Commentaries, 17th ed. (1830), vol. I, p. 269; and see, to like effect, Story, Commentaries on the Constitution of the United States (1833), s1568). That objective will, of course, be achieved only by the Constitution's requirement that judicial power be vested exclusively in the courts which it designates if the judicial power so vested is exercised by those courts in accordance with the essential attributes of the curial process (cf. Re Tracey; Ex parte Ryan [75] ). Indeed, to construe Ch. III of the Constitution as being concerned only with labels and as requiring no more than that the repository of judicial power be called a court would be to convert it into a mockery, rather than a reflection, of the doctrine of separation of powers. Common sense and the provisions of Ch. III, based as they are on the assumption of traditional judicial procedures, remedies and methodology (see below), compel the conclusion that, in insisting that the judicial power of the Commonwealth be vested only in the courts designated by Ch. III, the Constitution's intent and meaning were that that judicial power would be exercised by those courts acting as courts with all that that notion essentially requires. Accordingly, the Parliament cannot, consistently with Ch. III of the Constitution, usurp the judicial power of the Commonwealth by itself purporting to exercise judicial power in the form of legislation. Nor can it infringe the vesting of that judicial power in the judicature by requiring that it be exercised in a manner which is inconsistent with the essential requirements of a court or with the nature of judicial power. It would, for example, be beyond legislative competence to vest jurisdiction to deal with a particular class of matter in a Ch. III court and to provide that, in the exercise of that jurisdiction, the judge or judges constituting the court should disregard both the law and the essential function of a court of law and do whatever they considered to be desirable in the public interest.

[335]

A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter Prima facie, the relevant substantive law for determining rights and liabilities is the law which operated at the time of the circumstances from which those rights and liabilities are alleged to arise. Thus, it is a rule of construction that it is to be presumed that it was not the legislative intent that a statutory provision which affects rights or liabilities should operate retrospectively. Nonetheless, the focus of civil litigation is upon the determination of rights and liabilities under the law as it exists at the time of the proceedings. Civil legislation which operates retrospectively in the sense that it extinguishes or alters pre-existing rights or liabilities or deems rights and liabilities which it creates to have existed at an earlier time may, depending on the circumstances, be susceptible of legitimate criticism as unfair or unjustified. Such legislation will not, however, contravene the doctrine of separation of powers merely because it retrospectively creates, extinguishes or alters civil rights and liabilities or because it requires the courts to recognize and enforce, in subsequent civil litigation, the retrospective operation of its provisions (cf., e.g., Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [79] ). Putting to one side cases of impermissible interference with the proper discharge of judicial power by the courts, it will do so only if it is properly to be seen as involving a purported legislative exercise of the judicial function. Except in quite extreme cases (e.g. a statute providing that there be a verdict for the plaintiff in the amount of $500,000 in pending defamation proceedings in a court), the boundary between what is permissible as falling within the limits of legislative power and what is forbidden as a usurpation of judicial power is likely to be blurred in civil matters. The reason is that both the legislature and the judicature may, within the limits of their respective functions under the doctrine of separation of powers, each settle questions of rights and liabilities under the civil law. The position is different, however, in the case of a law which operates to make criminal an act which was not a crime when done. I turn to explain why that is so. For convenience of discussion, I shall refer to such a law as an "ex post facto criminal law". 1. (1908) 211 U.S. 210, at p. 226. 2. (1944) 69 C.L.R. 185, at p. 211. 3. (1954) 90 C.L.R. 353, at p. 370. 4. (1956) 94 C.L.R., at p. 281.

[339]

after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term " prescribed ". Put differently, it is basic to our penal jurisprudence that a person who has disobeyed no relevant law is not guilty of a crime. Of its nature, a crime "is an act committed, or omitted, in violation of a public law, either forbidding or commanding it" (Blackstone, Commentaries (1830), vol. IV, p. 5). It necessarily involves a contravention of a prohibition contained in an existing applicable valid law. As Lord Atkin wrote, for the Judicial Committee of the Privy Council, in Proprietary Articles Trade Association v. Attorney-General (Canada) [82] : Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences? Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality - unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of "criminal jurisprudence"; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State Accordingly, the whole focus of a criminal trial is the ascertainment of whether it is established that the accused in fact committed a past act which constituted a criminal contravention of the requirements of a valid law which was applicable to the act at the time the act was done. It is the determination of that question which lies at the heart of the exclusively judicial function of the adjudgment of criminal guilt. 1. [1931] A.C. 310, at p. 324.

[341]

The retrospective Attainder Acts of earlier times, when the principles of law were not so well understood or so closely regarded as in the present day, and which are now looked upon as barbarous and loosely spoken of as ex post facto laws, were of a substantially different character. They did not confirm irregular acts, but voided and punished what had been lawful when done. Mr. Justice Blackstone [1 Bla. Com. 46] describes laws ex post facto of this objectionable class as those by which "after an action indifferent in itself is committed, the legislature [Blackstone wrote "legislator"] then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it" (Emphasis added). Obviously, their Lordships were not suggesting - any more than was Blackstone - that ex post facto criminal legislation was beyond the legislative competence of the Imperial Parliament whose powers have never been confined by an entrenched doctrine of the separation of judicial from legislative and executive powers. Nonetheless, their Lordships' comments - like those of Blackstone - are directly relevant to the determination of what lies beyond the limits of the legislative function under a constitution which, like ours, entrenches the doctrine and subjects legislative power to it. In that regard, it is important to note that their Lordships identified the central vice of a Bill of Attainder not as lying in its specific naming of an individual but as lying in its ex post facto operation as a legislative decree that an act which was not criminal when done was "voided and punished" as a crime. A statute which decreed that "any person" who had supported the unsuccessful party in some past period of civil disturbance was, notwithstanding that he had contravened no then existing law, guilty of treason and subject to a death penalty would not be a Bill of Attainder in the strict sense in that a trial would be necessary to determine whether a particular accused had in fact supported the unsuccessful party and the actual sentencing would be by a court. It would, nonetheless, fall squarely within the category of laws which their Lordships condemned as inconsistent with a proper understanding of "the principles of law". So also does any statute which, like s. 9(1) of the Act, declares that a person is guilty of a crime against the law of the Commonwealth if he has committed a past act which did not, when committed, contravene any then existing and applicable law of the Commonwealth and was therefore not such a crime. 1. (1870) L.R. 6 Q.B. 1. 2. (1870) L.R. 6 Q.B., at p. 25.

[345]

The position is less obvious where such a statutory provision does not nominate a particular person or group of persons but identifies the persons whom it makes punishable for past "crime" by reference only to their having committed some past act which was not criminal when done. In such a case, there will be a need for a trial to determine whether a particular accused falls within the class of those whose past conduct is retroactively made criminal. Nonetheless, such a statutory provision declaring past conduct to have been a criminal offence constitutes a usurpation of judicial power in that, once it is established that the accused has committed the past act, the question whether that act constituted a criminal contravention of the law is made simply irrelevant. To that extent, curial determination of criminal guilt is ousted by legislative decree. The point can be illustrated by dividing the legislation in such a case into its essential components. One component of such legislation is the requirement that there be a "trial" in the courts, in which judicial process must be observed, to determine whether it is established beyond reasonable doubt that a particular person knowingly engaged in the designated conduct. The second component is the enactment that, if it be established that the particular person did in fact engage in that past conduct which was not criminal when done, he is guilty of a punishable crime. That second component of the legislation invades the heart of the exclusively judicial function of determining criminal guilt, that is to say, of determining whether past conduct constituted a criminal contravention of the law. It pre-empts and negates what would otherwise be an inevitable judicial determination that, since the act of the particular person did not constitute a criminal contravention of any Commonwealth law which was applicable at the time when it was done, that person committed no crime under our law. In the place of that inevitable judicial determination, it imposes a legislative enactment of past guilt which it requires the courts, in violation of the basic tenet of our criminal jurisprudence and the doctrine of separation of judicial from legislative and executive powers, to apply and enforce. It is simply not to the point that the first component of the legislation camouflages the usurpation of judicial power involved in the second by requiring a display of the full panoply of judicial process for the purpose of determining whether it is established beyond reasonable doubt that the accused person knowingly did a specified act which was not criminal when done.

[351]

Moreover, the structure of the federation and the paramountcy of the Commonwealth's legislative powers with respect to designated subject matters could give rise to extraordinary injustice, difficulty and uncertainty if it lay within the Commonwealth's legislative competence to enact an ex post facto criminal law. If the proscribed act under such a Commonwealth law had been mandatory under an operative and applicable State law at the time when the act was done, the accused would be made retroactively guilty of a crime for doing what the law actually required him to do at the time he did it. If the Commonwealth's ex post facto criminal law covered the field and purported to exclude the operation of any State law, the question would arise whether the exclusion and consequent pro tanto invalidity of the State law could be made fully retroactive (cf. University of Wollongong v. Metwally [92] ). If it could, State criminal law would assume a provisional character in any area within the reach of Commonwealth legislative power. If, in such a case, the accused had been convicted and punished for an offence against the inconsistent State law, he would have been accused and punished under what retroactively had been made invalid. If the Commonwealth law did not apply retroactively to invalidate the State law but had full cumulative operation, double jeopardy and double punishment would be the result. If it be objected that these problems are hypothetical and far-fetched, one need do not more than refer to the provisions of ss. 6(1), 7(1) and 9(1) of the Act. Under those provisions, a person who had been convicted of the offence of "wounding" in 1942 in New South Wales would be retroactively made guilty of a "war crime" under the Act if his offence was committed in any of the circumstances referred to in s. 7(1)(c) and (d). In such a case, the elements of the offence of "wounding" under New South Wales law would be elements of the "war crime" under the Act. Unless one can read down the provisions of the Act so that they do not apply to the case where a person has been convicted of the underlying "serious crime" under s. 6(1), those provisions would inevitably give rise, in such a case, to serious difficulties and uncertainties about, among other things, the past validity of the State law and the effect of the past trial and conviction in respect of the State offence.

[358]

The Constitution does not prohibit the Parliament of the Commonwealth from making retroactive laws; and none of the Constitutions of the States imposes any such prohibition upon the Parliament of the State. But by limiting the governmental authority of the Federal Parliament to the exercise of legislative functions the Constitution of the Commonwealth has indirectly but effectually prohibited to the Parliament any legislation similar in character to some of the legislation which has been enacted in some, if not all, of the colonies which have become States of the Commonwealth. The legislation to which this statement refers has been usually enacted to remedy defects in previous legislation which have been discovered in the course of litigation and have defeated the expectations of the promoters of the previous law. Such amending laws have been repeatedly declared by the American courts to be invalid because they were encroachments upon the exclusive province of the Judiciary under a constitution which conferred separately upon different departments of the government the legislative, the executive and the judicial powers exercisable under it [See People v. Board of Supervisors, [1] ; Governor v. Porter, [2] ; Mayor &c. v. Horn, [3] ]. The underlying principle of the decisions of the American courts upon this subject was concisely stated by Thompson, J., in the case of Dash v. Van Kleeck [4] in which he said - " To declare what the law is or has been is a judicial power; to declare what the law shall be is legislative. " Clearly enough, the first sentence in the above passage must be read, in context, as referring to a direct constitutional prohibition of retroactive laws. Equally clearly, Inglis Clark's apparent acceptance of the "underlying principle" referred to in the last sentence as applicable to our Constitution would preclude the enactment of an ex post facto criminal law. 1. (1857) 16 N.Y., 424. 2. (1844) 5 Humph., 165. 3. (1866) 26 Md., 294. 4. (1811) 7 Johns., 477.

[380]

The purported conferral of jurisdiction in the present case is upon Ch. III courts. Conduct which the Act makes punishable as a "war crime" is not punishable under the Act as an offence against international law. It is punishable as a distinct and independently defined indictable offence under the municipal law of the Commonwealth. Nor is that conduct confined to violations of international law. The conduct which the Act retroactively makes punishable as a crime under municipal law need not have been a crime against international law at the time it was committed. The elements of the indictable offence of a "war crime" are identified by ss. 6, 7, 9 and 10 of the Act without reference to international law. International law becomes relevant only if a defence is raised, under s. 17(2), that the conduct which constitutes a "war crime" under ss. 6 and 7 was "permitted by the laws, customs and usages of war" and "was not under international law a crime against humanity". That defence can be relied on only if "there is evidence of the existence of the facts" which constitute it (s. 17(4)). More important, even where there is such evidence, the validity of a defence under s. 17(2) is not to be determined by reference only to international law. Section 17(2) is expressly made subject to s. 16 which, subject to presently irrelevant qualifications, excludes (except as a plea of mitigation) the defence of government or superior orders. At the time of the alleged offences in the present case (i.e. prior to June 1943), it is clear beyond real argument that the stage had not been reached where customary international law unqualifiedly regarded a subordinate (as distinct from his State) as being individually guilty of a breach of the law and customs of war in circumstances where he had merely acted in obedience to superior orders which he was bound to obey under his national law: see, e.g., Wheaton's Elements of International Law, 6th ed. (1929), vol. II, pp. 1159-1160; Oppenheim, International Law, 5th ed. (1935), vol. II, pp. 453-454; the United States Rules of Land Warfare, (1940), Art. 347; British Manual of Military Law, 7th ed. (1929), Art. 443; Lauterpacht, The Law of Nations and the Punishment of War Crimes, The British Year Book of International Law 58, vol. XXI (1944), at pp. 69-74; Pal, Crimes in International Relations (1955), pp. 382-384; Röling, The Law of War and the National Jurisdiction since 1945, Recueil des Cours (1960-II), vol. 100, pp. 372-377; History of the War Crimes Commission, pp. 274-288; Stone, op. cit., p. 362; Detter De Lupis, The Law of War (1987), pp. 357-358; and, as regards Australia, the Manual of Military Law 1941 which recognized the defence (Ch. XIV, par. 443) but which was amended on 30 September 1944 to deny it. The importance of the express exclusion of a defence of superior orders is not so much that such a defence was available at international law at least in some circumstances at the time of an alleged offence under the Act. It is that the legislative exclusion of the defence - like the legislative indifference to the question whether, at the time of an alleged offence, customary international law directly established or made punishable the criminality of individuals for breaches of the law of war (see above) - underlines the fact that what the Act is concerned to make punishable is a new crime against the law of the Commonwealth which the Act itself retrospectively creates. If the elements of an indictable offence as defined by ss. 6, 7, 9 and 10 are present and the qualified defence under s. 17(2) is not raised or, if raised, does not prevail, it matters not for the purposes of the Act whether the accused was or was not personally guilty of a crime under international law.

[382]

As a general rule, the question whether an enactment of a particular legislature declaring that a past act is punishable as a crime is an ex post facto criminal law will fall to be determined by reference to the system of law which is subject to the legislative powers of that legislature. The fact that the particular act was a crime under some other system of law at the time when it was done will ordinarily be irrelevant. In a federation such as Australia where the national law encompasses the enactments of a number of different legislatures with authority in designated areas, the question whether a law of a particular legislature is an ex post facto criminal law will ordinarily fall to be determined by reference to the particular area of the national law in relation to which that particular legislature has authority. Thus, it will ordinarily be irrelevant that an act retrospectively made criminal under an enactment of the Parliament of the Commonwealth was already a crime under an enactment of one or more of the State Parliaments. It is, however, possible to envisage circumstances in which the interaction between Commonwealth and State laws could give rise to difficulty in determining whether a law of the Parliament which retrospectively declared a past act to be punishable as a crime was properly to be seen as an ex post facto criminal law. If, for example, the Commonwealth Parliament were, pursuant to a reference (under s. 51(xxxvii) of the Constitution) or a request (under s. 51(xxxviii)) by the Parliaments of all the States, to enact a national code in relation to a certain type of crime which retrospectively replaced earlier Commonwealth and State laws, it would be arguable that the code was not an ex post facto criminal law to the extent that it retrospectively made criminal under Commonwealth law an act which had been, at the time when it was done, a corresponding crime punishable by a corresponding or greater penalty under the law of the State where it was done. It is, however, unnecessary to pursue such questions for the purposes of the present case. It is not suggested that the acts committed outside Australia to which the Act applies were crimes under any law of this country - Commonwealth, State or Territory - at the time when they were done. In so far as the Act applies to past conduct within Australia, the fact that elements of that conduct (i.e. the s. 6(1) elements) were punishable as different, and in many cases much less heinous, crimes under the law of the State or Territory in which the conduct occurred is clearly insufficient to prevent the Act's retroactive declaration that the past conduct (i.e. the s. 6(1) elements aggravated by the s. 7 elements) is punishable under Commonwealth law as "war crimes" from being an ex post facto criminal law in the relevant sense. Indeed, no submission to the contrary was advanced on behalf of those who argued in support of the validity of the Act.

[385]

There is one further matter which I would briefly mention. It is that the enormity of the acts of barbarism perpetrated before and in the course of the 1939-1945 war in Europe should not be allowed to disguise the nature of the critical question addressed in this judgment. The charges against the plaintiff relate to acts allegedly done in the Ukraine. It is common ground that those acts, when and if done, did not contravene any applicable law of the Commonwealth. Yet the charges against the plaintiff are not of breaches of international law or of breaches of the system of law which applied in the Ukraine during the wartime occupation of that country. They are of crimes against the law of the Commonwealth. The only arguable basis of those charges is a statutory provision (the Act, s. 9(1)) which purported to declare in 1988 that a "person is guilty of an indictable offence" against the law of the Commonwealth if, between 1939 and 1945, he had done an act which was not, when done, an offence against the law of the Commonwealth at all. The critical question upon the answer to which this judgment turns is ultimately one of abstract constitutional law. It is whether the Commonwealth Parliament possesses power to legislate that a "person is guilty" of a crime against Commonwealth law if, in the past, he has done some specified thing which was not, when done, such a crime. That question must, in my view, be answered in the negative for the reason that a law which declares that a person "is guilty" of a crime against a law of the Commonwealth if he has done an act which did not, when done, in fact contravene any such law is inconsistent with Ch. III of the Constitution. Both in substance and in form, the central operation of the Act is as such a legislative declaration of criminal guilt. It prohibits nothing, prescribes no rule of conduct and is incapable of being contravened since, by its terms, it is inapplicable to acts committed after its enactment. As I have endeavoured to explain, it is not to the point that the Act identifies a "person" whom it declares to be "guilty" of past crimes against the law of the Commonwealth not by name but, in the case of the plaintiff, by reference to whether, within a long past period and in another country, he did an alleged act which was not such a crime when done and which has never, if done where it was allegedly done, been prohibited by any applicable law of the Commonwealth, including the Act. Nor is it to the point that the operation of the Act to declare that such a person "is guilty" of such a past crime is obscured by the requirement of a trial to determine whether a particular accused is in fact such a person. What is to the point for the purposes of the present case is the combined effect of two propositions which are basic to the criminal jurisprudence of this country. The first of those propositions is almost a truism. It is that criminal guilt, under our system of law, means being guilty of a contravention of the requirements of a then existing and applicable penal law: a crime is, as Blackstone wrote (see above), "an act committed, or omitted, in violation of a public law, either forbidding or commanding it". That proposition lies at the heart of Lord Atkin's comments in the Proprietary Articles Case (see above) when he wrote (emphasis added) that criminal law "connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions" and that the "criminal quality of an act" cannot "be discovered by reference to any standard but one: Is the act prohibited with penal consequences?" The second of those two propositions is that the function of determining whether a person is in fact guilty of a crime against a law of the Commonwealth is a function which appertains exclusively to, and which cannot be excluded from, the judicial power which our Constitution vests solely in the courts which it designates. That being so, it is beyond the competence of the Parliament to declare, as s. 9(1) of the Act purports to do, that a "person is guilty" of a crime against a law of the Commonwealth by reason of having committed a past act which did not, when done, contravene any applicable Commonwealth law and was therefore not in fact such a crime.

[396]

These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words "for the peace, order and good government" are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v. Road Carriers [55] ; Fraser v. State Services Commission [56] ; Taylor v. New Zealand Poultry Board [57] ), a view which Lord Reid firmly rejected in Pickin v. British Railways Board [58] , is another question which we need not explore. The effect of the authorities is that, save possibly for quite extraordinary circumstances, it is for the Commonwealth Parliament alone to judge whether legislation which otherwise falls within power is for the peace, order and good government of the Commonwealth: Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. [59] ; Pearce v. Florenca [60] . 1. (1959) 103 C.L.R., at p. 308. 2. (1989) 168 C.L.R. 340, at p. 370. 3. (1878) 3 App. Cas. 889. 4. (1883) 9 App. Cas. 117. 5. (1885) 10 App. Cas. 282. 6. (1885) 10 App. Cas. 675. 7. (1988) 166 C.L.R., at p. 10. 8. [1982] 1 N.Z.L.R. 374, at p. 390. 9. [1984] 1 N.Z.L.R. 116, at p. 121. 10. [1984] 1 N.Z.L.R. 394, at p. 398. 11. [1974] A.C. 765, at p. 782. 12. (1959) 103 C.L.R., at p. 308. 13. (1976) 135 C.L.R. 507, at pp. 515-516.

[435]

There is still a more unreasonable method than this, which is called making of laws ex post facto: when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term " prescribed ". But Blackstone was not denying the capacity of Parliament to pass ex post facto laws, however undesirable they may be: see Commentaries , 16th ed. (1825), vol. I, p. 90. The resistance of the law to retrospectivity in legislation is to be found in the rule that, save where the legislature makes its intention clear, a statute ought not be given a retrospective operation where to do so would be to attach new legal consequences to facts or events which occurred before its commencement: Fisher v. Hebburn Ltd. [78] , per Fullagar J.; see also Maxwell v. Murphy [79] ; Geraldton Building Co. Pty. Ltd. v. May [80] ; Rodway v. The Queen [81] . However, the injustice which might be inflicted by construing an enactment so as to give it a retrospective operation may vary according to its subject matter. Indeed, justice may lay almost wholly upon the side of giving remedial legislation a retrospective operation where that is possible: see George Hudson Ltd. v. Australian Timber Workers' Union [82] . With legislation of that character, if the ordinary rule be couched in terms of a presumption against retrospectivity, it must, at best, be a weak presumption: see Doro v. Victorian Railways Commissioners [83] . With a criminal law, where the injustice of giving it an ex post facto operation will ordinarily be readily apparent, the presumption must be at its strongest. 1. (1960) 105 C.L.R. 188, at p. 194. 2. (1957) 96 C.L.R. 261, at p. 267. 3. (1977) 136 C.L.R. 379. 4. (1990) 169 C.L.R. 515, at p. 518. 5. (1923) 32 C.L.R. 413, at p. 434. 6. [1960] V.R. 84, at pp. 85-86.

[447]

The perception that the bill of attainder clause in the United States Constitution was intended to implement the separation of powers came somewhat late in the history of that clause. It is not without its difficulties, the chief of which is, as was pointed out by White J. in dissent in United States v. Brown [98] , in quoting from Dreyer v. Illinois [99] , that State legislatures, as well as Congress, are prohibited from passing bills of attainder and "[w]hether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate is for the determination of the State". Nevertheless, it is perfectly clear that it is only the prohibition against bills of attainder and not the prohibition against ex post facto laws generally which might be traced to the doctrine of the separation of powers. That is because it is not the ex post facto nature of bills of attainder which offends against the doctrine, but the substitution of the judgment of the legislature for that of the courts. That is not a necessary feature of an ex post facto law. Where an ex post facto law penalizes a past activity by means of a generally applicable rule rather than by specifying the persons to be subjected to the penalty, it is not a bill of attainder whatever other objections might be raised to its ex post facto operation. In that situation a court is still left to determine whether an individual is guilty of having engaged in the prohibited activity, albeit an activity which took place before the law created the offence, and the legislature has done no more than lay down a rule of general application which is part of its true function. Even a law which penalizes persons who possess specified characteristics may not be a bill of attainder, provided the characteristics are specified in sufficiently general terms. Legislation will amount to a bill of attainder only where it is apparent that the legislature intended the conviction of specific persons for conduct engaged in in the past. The law may do that by penalizing specific persons by name or by means of specific characteristics which, in the circumstances, identify particular persons. A court in applying such a law is in effect confined in its inquiry to the issue of whether or not an accused is one of the persons identified by the law. If he is, his guilt follows. The proper judicial inquiry as to whether an accused has been guilty of prohibited conduct has thus been usurped by the legislature. Alternatively, a bill of attainder may designate the persons it seeks to penalize by means of some characteristic (such as membership of an organization) that is independent of and not equivalent to the criminal activity which it is the purpose of the law to prohibit or prevent. In United States v. Brown, the Supreme Court struck down as amounting to a bill of attainder an Act which made it a crime for a member of the communist party to serve as an officer or (except in clerical or custodial positions) as an employee of a labour organization. The Court said [1] :

[451]

Those activities which are said by the Act to constitute war crimes are defined in general terms without any attempt to designate any person or group of persons as having engaged in any of those activities. Nor does the Act pick out the persons it seeks to penalize by means of a characteristic which is independent of the prohibited criminal activity; it may have done so had it specified that any person who had been a member of a particular enemy organization was thereby to be held guilty of a war crime, but that is not the approach adopted. The Act confines the period during which, and the field of war in relation to which, those activities will have constituted war crimes, but that in no way usurps the judicial function of determining whether a particular person charged with an offence engaged in conduct which the Act describes as a war crime. The fact that the period specified by the Act occurred before the Act in its amended form came into operation is what gives it an ex post facto operation. But otherwise its provisions are in such a form as to be capable of operating prospectively and, were they to do so, the function of a court applying those provisions would be the same, namely, ascertaining whether a person alleged to have engaged in conduct which the Act proscribes had in fact done so. The Act does not, merely because it penalizes conduct which occurred before it came into operation, supplant the court in the exercise of its ordinary, traditional function. That function is, in the application of the criminal law, the ascertainment in accordance with the law of the guilt or innocence of a person charged with an offence under the law. In designating conduct - whether in the future or in the past - as criminal, a law does not intrude upon the judicial function. It is when the legislature itself, expressly or impliedly, determines the guilt or innocence of an individual that there is an interference with the process of the court. The Act requires no finding of guilt on the part of a person charged with an offence under its provisions, save where that person is found to have contravened the rules of conduct which it lays down. That finding requires the determination of a court after a trial. The fact that the Act lays down rules of conduct in relation to events which occurred before it came into effect does not invest it with the attributes of a bill of attainder, however widely such an instrument is defined.

[453]

The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them. The legislation was held to be invalid, not because of its ex post facto operation (although that was a necessary feature of it), but because, far from laying down any general rule of conduct, it was designed to secure the conviction of identifiable individuals. It was, therefore, a legislative attempt to exercise judicial power which, under the Constitution of Ceylon, was confided to the courts. Indeed, the Privy Council said of the Acts [6] , that one might fairly apply the words of Chase J. in Calder v. Bull [7] that they were "legislative judgments; and an exercise of judicial power". Earlier [8] , the observation was made that: It goes without saying that the legislature may legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence. But the Acts of 1962 had no such general intention. They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. The fact that the learned judges declined to convict some of the prisoners is not to the point. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that, after these had been dealt with by the judges, the law should revert to its normal state. 1. [1967] 1 A.C. 259. 2. [1967] 1 A.C., at p. 290. 3. [1967] 1 A.C., at p. 291. 4. (1798) 3 U.S., at p. 389. 5. [1967] 1 A.C., at p. 289.

[535]

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connexion with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. (Emphasis added.) The paragraph contains two important limitations. First, a crime against humanity must comprise conduct directed at a civilian population. Isolated acts against individuals, unconnected with a larger design to persecute or exterminate a population, are not within the definition of the crime, whether committed by an individual or by a state authority: see, for instance, In re Altstötter (1947) 14 Annual Digest, at p. 284. The second limitation is that crimes against humanity must have been committed "in execution of or in connexion with any crime within the jurisdiction of the Tribunal", that is, war crimes (Art. 6(b)) or crimes against peace or waging aggressive war: Art. 6(a). The second limitation applies both to acts of persecution and to acts of extermination. As to the grammatical change made to Art. 6(c), which makes the intention of the contracting parties to this effect unequivocal, see Schwelb, "Crimes Against Humanity", The British Year Book of International Law, vol. XXIII (1946) 178 (hereafter "Schwelb"), pp. 193-195. Only crimes against humanity committed during the period of the war were held to be capable of founding a conviction because only those acts could be seen to satisfy the limitation. In its judgment, the I.M.T. concluded, at p. 249: To constitute Crimes against Humanity, the acts relied on before the outbreak of war must have been in execution of, or in connexion 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 been satisfactorily proved that they were done in execution of, or in connexion 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 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 connexion with, the aggressive war, and therefore constituted Crimes against Humanity.

[559]

The conduct in respect of which the plaintiff is charged is the murder of a number of persons, either Jews or those suspected of being partisans or communists. The paragraphs of the information relating to those suspected of being partisans or communists allege expressly that the conduct was in pursuance of a policy of annihilation "contrary to the laws of war", in other words that the conduct was a war crime. The paragraphs relating to Jewish people allege that the murders were committed during and in the course of the German occupation of the Ukraine, and either in pursuing Germany's policy of persecution of Jewish people or with intent to destroy Jewish people. In so far as the information alleges a murder in pursuance of Germany's policy of persecution, the conduct is done in execution of or in connexion with a war crime in international law, the war crime being Germany's planned persecution in occupied Europe of people by reason of their race, or their political or religious beliefs. In so far as the information alleges a murder with intent to destroy the Jewish people, the conduct is alleged to have been committed "during and in the course of" the German occupation. "In the course of", which reflects the terminology of s. 7(1) of the Act, implies, in this context, more than a temporal connexion between the murder and the occupation. If it meant otherwise, it would add nothing to "during" the occupation. The allegation is sufficient, therefore, to amount itself to a war crime, as well as a crime against humanity. If, for any reason, the allegation of murder with intent to destroy the Jewish people is insufficient, in context, to amount to a war crime, the information would fail to describe conduct which amounted to a crime against humanity as defined in international law at the relevant time and would fail to be within the universal jurisdiction to prosecute that crime. On its face, however, the conduct alleged against the plaintiff constituted a war crime or a crime against humanity at the relevant time.

[622]

Section 9 of the Act refers only to conduct done in the past. Those who "committed a war crime" are guilty of an offence. The offence under s. 9 (strictly, unnamed, since "war crime" simply identifies certain conduct which amounts to the s. 9 offence) did not exist in Australian law at the time of the conduct, so the section is, in some sense at least, retrospective. But the Act causes no detriment to an accused where the offence charged rests on the notional crime of murder referred to in s. 6(1) and, by implication, s. 6(3). Under the laws of the Australian States, the intentional killing of a person in the absence of authorization, justification or excuse was at the relevant time an offence punishable by, at least, a maximum penalty no less than that imposed by s. 10 of the Act for an offence involving the wilful killing of a person: imprisonment for life. And there was no suggestion in argument that the law prevailing in the Ukraine at the relevant time was any more beneficial to an accused. Further, the universality of the condemnation of murder in municipal laws generally is reflected in the existence in international law of war crimes and crimes against humanity, both of which (so far as it is relevant here) are predicated on conduct which all Australian States and Territories would have identified as murder. Where the conduct alleged is murder, the circumstances described in s. 7, which must be satisfied to establish the offence in s. 9, do not alter the nature of the conduct which is punishable so as to take it outside the scope of the municipal crime of murder. They describe the circumstances in which a crime of murder will be a "war crime". Conduct constituting such an offence under the Act was conduct which attracted the sanction of criminal laws generally, not just the censure of moral codes. In those circumstances, it cannot be said that an individual is caused detriment to which he or she would not have been subject at the time of the conduct, or that he or she had "no cause to abstain" from that conduct.