Opinion No. 1761
AUSTRALIAN NAVAL RESERVE
ROYAL AUSTRALIAN NAVAL VOLUNTEER RESERVE: DURATION OF PERIOD OF ENLISTMENT OF RATINGS ENLISTED DURING WORLD WAR 2: ‘TIME OF WAR’ AND ‘WAR’ IN NAVAL DEFENCE ACT 1901: ‘DURATION OF WAR’ IN TERMS OF ENGAGEMENT OF RATINGS: WHETHER HIS MAJESTY IS STILL ENGAGED IN WAR
NAVAL DEFENCE ACT 1910 s 3
29 January 1946
The Secretary, Department of the Navy
The Secretary, Department of the Navy, has forwarded to me, for advice, the following memorandum:
I desire to inform you that, during hostilities, the period of enlistment for ratings of the Royal Australian Naval Volunteer Reserve was stated in the form of engagement as being for three years or the duration of the war and six months thereafter whichever is the longer.
A letter has been received by the Minister from Messrs. Perkins, Stevenson & Co., Solicitors, Sydney, acting on behalf of a rating whose period of three years has already expired, and the Solicitors desire to be informed as to when the period of six months is considered to commence to run.
In view of the definitions of ‘Time of War’ and ‘War’ in the Naval Defence Act, it would seem that the period of six months commences from the date when the formal proclamation is issued declaring that the war or danger thereof no longer exists.
Your early advice as to the correctness of this view would be appreciated.
‘Time of War’ and ‘War’ are defined by section 3 of the Naval Defence Act 1910–1934, as follows:
‘Time of War’ means any time during which a state of war actually exists, and includes the time between the issue of a proclamation of the existence of war or of danger thereof, and the issue of a proclamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists;
‘War’ means any invasion or apprehended invasion of or attack or apprehended attack on the Commonwealth or any territory under the control of the Commonwealth by an enemy or armed force, and includes actual war in which the Naval Forces take part.
In my opinion these definitions are relevant as to the meaning of the respective terms wherever they occur in the Act or in regulations or instruments, such as any proclamation, made or issued under the Act, but I think that the meaning of the phrase ‘duration of the war’ occurring in the form of engagement executed by an entrant in the Volunteer Reserve would be ascertained by reference to any state of war in existence at the time of the enlistment.
In my opinion, the war with Germany and all other States allied or associated with Germany has not been terminated by the cessation of hostilities with the respective States. My view is that His Majesty is still engaged in war and will continue to be so engaged until either a treaty of peace is entered into with each of the enemy States or until formal declarations of peace are made in respect of each of those States.
I take the view, therefore, that the period of six months referred to in paragraph 2 of the memorandum from the Secretary, Department of the Navy, will not commence to run until the formal conclusion of war with that enemy State with which war is formally concluded last.
[Vol. 37, p. 26]