Opinion Number. 1838

Subject

EFFECT OF RATIFICATION OF TREATIES OF PEACE WITH PARTICULAR COUNTRIESEFFECT OF RATIFICATION OF TREATIES OF PEACE WITH ITALY, ROMANIA, BULGARIA, HUNGARY AND FINLAND: WHETHER PROCLAMATION THAT WAR NO LONGER EXISTS MAY BE ISSUED UNDER TRADING WITH THE ENEMY ACT 1939: CUSTOMS PROCLAMATION PROHIBITING TRADING WITH PERSONS RESIDENT OR CARRYING ON BUSINESS IN ENEMY TERRITORY: MEANING OF ‘ENEMY TERRITORY’: WHETHER NOTICES DECLARING CERTAIN COUNTRIES TO BE ENEMY TERRITORY SHOULD BE REVOKED

Key Legislation

TRADING WITH THE ENEMY ACT 1939 ss 3, 5(1): NATIONAL SECURITY (ENEMY PROPERTY) REGULATIONS: Customs Proclamation No. 498 published 24 July 1940

Date
Client
The Comptroller

I refer to your memorandum No. 48/66/42 of 2nd July concerning the effect of the ratification of the Treaties of Peace with Italy, Roumania, Bulgaria, Hungary and Finland.

(2)  In my view, the ratification of these treaties will not call for the issue of a proclamation for the purposes of the definition of ‘the present state of war’ in section 3 of the Trading with the Enemy Act. A proclamation for that purpose could not properly be issued under the present law until a state of war no longer exists with any country. It cannot, therefore, properly be issued while a state of war continues with Germany and Japan.

(3)  The effect of the continuance of ‘the present state of war’, however, merely means that it will still be possible for a person to be guilty of an offence against section 5(1) of the Act if he trades with the enemy. But the question whether trading with a particular country will continue to be trading with the enemy will depend on section 3(2). As regards paragraph (d) of that sub-section, the end of the war with the particular countries under consideration will mean that trading with those countries will no longer be trading with the enemy at common law. The ending of the war with those countries will take place upon the ratification of the treaties, without any special action by your Department.

(4)  So far as I am aware, the only acts or transactions which, apart from the common law position and the Warning Notice of 6th September, 1939, constitute trading with the enemy at the present time are those prohibited by Customs Proclamation No. 498, published in the Gazette on 24th July, 1940. That proclamation prohibits transactions with persons resident or carrying on business ‘in enemy territory’. The definition of ‘enemy territory’ in the proclamation covers areas under the sovereignty or in the occupation of Powers with which His Majesty is for the time being at war, and other areas which the Minister, by notice published in the Commonwealth Gazette, declares to be enemy territory for the purposes of the proclamation. Apart from the effect of such notices published in the Gazette, the countries under consideration would cease to be ‘enemy territory’ for the purposes of the proclamation upon the deposit of ratifications of the peace treaties. However, a notice has been published in the Gazette in respect of each of these countries, except Italy, declaring the country concerned to be enemy territory for the purposes of the proclamation. Unless these notices are revoked, it is possible that these countries (other than Italy) would continue to be enemy territory for the purposes of the proclamation even after the deposit of the instruments of ratification. I understand that, as a matter of policy, this is not desired.

(5)  The action required by your Department is, therefore, in my opinion, to arrange for the revocation of the notices published in the Gazette as soon as possible after the deposit of the instruments of ratification. I am informed by the Department of External Affairs that it is not possible to say in advance on what date the deposit will take place, but that Department has agreed to inform you of the date within a day or two after the deposit takes place. In my view, a notice revoking the notices in the Gazette cannot be expressed to be retrospective. Therefore the best course practicable appears to be to allow the revocation to operate on and from the date of its publication in the Gazette, and to publish it as soon as possible after receipt of advice that the instruments of ratification have been deposited. The draft Instrument of Revocation is enclosed.

(6)  In view of the connexion between the definitions in the National Security (Enemy Property) Regulations and the Trading with the Enemy Act, I presume that you will advise the Controller of Enemy Property of the proposed issue of the instrument of revocation. An additional copy of this memorandum is enclosed for this purpose.

[Vol. 38, p. 134]

Note: The opinion is unsigned in the Opinion Book, but, because of its date and the Secretary’s stamp, it has been attributed to Kenneth Hamilton Bailey.