A reference under the National Security (Industrial Peace) Regulations by the Minister for Labour and National Service of the matter of the rates of wages and conditions of employment for females employed on nursing staffs and domestic staffs of hospitals, etc, came before the Commonwealth Arbitration Court, constituted of His Honour Judge Kelly, today.⁽¹⁾ Mr. T.W. Smith of Counsel appeared to intervene on behalf of the Attorney-General. During the proceedings, His Honour raised the question as to whether His Majesty was still engaged in war. He pointed out that, if His Majesty had ceased to be engaged in war, it was of little use for him to hear the matter before him, as any award he might make could not continue for more than six months from the date on which His Majesty ceased to be engaged in war, and consequently by the time the award was made it would have a very short period of operation.

Mr. Smith submitted that the question as to whether the war had ended was one for the Executive. His Honour then intimated that he considered that a statement by the Minister for External Affairs as to when His Majesty would have ceased to be engaged in war should be submitted by Mr. Smith.

Recently, in reply to a question by Mr Anthony, the Attorney-General stated, amongst other things, that ‘all of the precedents which were created during the last war indicate that the state of war continues until a state of peace is proclaimed between the various countries concerned’–see Hansard, 30th August, 1945, page 5015.

On 13th September, 1945, the Acting Attorney-General, in reply to a question asked by Mr Conelan, stated, amongst other things, as follows:

A state of peace does not merely mean the cessation of hostilities, but extends, not merely to the signing of peace, but to the time when that peace becomes effective. When, after the end of a war, a treaty of peace is made, the normal procedure is for it to be signed by the representatives of the warring countries and, subsequently, ratifications of the treaty are exchanged. Upon the exchange of ratifications, the treaty becomes effective, and a state of peace supervenes on the state of war. If this procedure is adopted in the present case, the National Security Act could continue until six months after the ratifications of the last peace treaty have been exchanged.⁽²⁾

In 1920, the question of the cessation of the 1914–18 war was considered by His Honour Mr. Justice Starke in Jerger v. Pearce 28 C.L.R. 588 at page 593. His Honour there said:

No doubt a state of peace may be brought about by a mere cessation of hostilities without any Treaty of Peace, but ‘owing to the numerous difficulties involved, combatant States have very seldom resorted to this method of withdrawing from war without arriving at some definite and intelligible decision’ (see Termination of War and Treaties of Peace by Coleman Phillipson, p. 3⁽³⁾).

He went on to reach the conclusion that, in relation to the matter before him, a state of war still continued because no peace had been made with Austria-Hungary, although peace had been made with Germany.

The view of His Honour Mr. Justice Starke is supported by the passage in the judgment in Hijo v. United States 194 United States Reports 315 at page 323, in which reference is made to the cessation of actual hostilities on 12th August, 1898, in the war between America and Spain, and it is stated that a state of war ‘did not in law cease until the ratification in April 1899 of the Treaty of Peace’. The judgment then goes on to quote Kent⁽⁴⁾ as saying ‘A truce or suspension of arms does not terminate the war, but it is one of the commercia belli which suspends its operations … At the expiration of the truce, hostilities may recommence without any fresh declaration of war’.

Having regard to these authorities, it seems to me to be evident that His Majesty is still engaged in war and I shall be glad of your instructions as to whether Mr. Smith may advise His Honour Judge Kelly when the Court resumes tomorrow that the Acting Minister for External Affairs has authorised him to state on his behalf 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 with which he has been at war since 3rd September, 1939, or until formal declarations of peace are made in respect of each of those enemy States.⁽⁵⁾

[Vol. 36, p. 635]

Secretary

(1) See Hospitals, Asylums, &c., Female Domestic and Nursing Stall Award–Industrial Dispute–Wages and working conditions (1945) 55 CAR 548.

(2) Commonwealth of Australia, Parliamentary Debates, House of Representatives, 1945 (Vol. 184) p. 5383 (Mr Beasley MP).

(3) Phillipson, Coleman 1916 Termination of war and treaties of peace, Sweet & Maxwell, London.

(4) Kent, James 1826 Commentaries on American law, O Halsted, New York, Vol. 1, pp. 159, 161.

(5) This opinion in the Opinion Book was endorsed ‘Approved’ by Mr Makin, Acting Minister for External Affairs, and the endorsement dated 20 September 1945.