Re Hourigan

JurisdictionNew Zealand
Judgment Date22 November 1945
Date22 November 1945
Docket NumberCase No. 142
CourtSupreme Court
New Zealand, Supreme Court.

(Sir Michael Myers, C.J.)

Case No. 142
In re Hourigan.

Conclusiveness of Statements of the Executive — Termination of War.

War — Termination of — Cessation of Hostilities — Unconditional Surrender of Germany — Armistice with Italy — Capacity to Wage War — Whether State of War Ended — Certificate of Minister — Judicial Notice — Finance Act, 1945 — Detention for “Duration of the Present War”— Habeas Corpus.

The Facts.—This was an application to have a rule nisi for habeas corpus made absolute. The applicant had been convicted on November 13, 1941, under Regulation 20a of the National Service Emergency Regulations, 1940, of the offence of failing without lawful excuse to render the service required of him as a member of the armed forces. He was thereafter held in a detention camp, pursuant to an order for committal made by a Stipendiary Magistrate under Regulation 44a of the National Service Emergency Regulations, 1940, which in sub-paragraph (2) prescribed the period of detention as being “for the duration of the present war”. It was contended for the applicant that there could no longer be said to be a continuing state of war after the unconditional surrender of Germany and the assumption of supreme authority in Germany by the victorious Allies. The White Papers, presented to Parliament by command of His Majesty, were an act of State which, in their construction, contained a declaration of the end of the war with Germany, as the documents reproduced therein deprived the German army and nation of the physical capacity to wage war. There could not be a state of war between the governing Powers and the governed. The White Paper on Italy showed that Italy had been admitted to the status of a co-operator with the United Nations. Italy was no longer a sovereign State, and had no capacity to be at war.

Held: that the rule must be discharged. There was a continuing state of war and consequently the applicant was lawfully detained by virtue of Regulation 44a (2) of the National Service Emergency Regulations.

Per Myers, C.J.: “The period of detention is declared by Reg. 44A of the National Service Emergency Regulation, 1940, to be ‘for the duration of the present war’. It is claimed on behalf of the applicant that that period is and has been at an end since the unconditional surrender of Germany and the armistice with Italy, or at least since the publication in England of the White Papers to which I shall refer later. This was disputed by the Solicitor-General, who has appeared on behalf of the Supervisor of the Camp in opposition to the rule, and who contends that the period of detention under the regulations is still current.

“On July 26, 1045, there was passed the Finance Act, 1945, s. 16 of which is as follows:

‘(1) Wherever in any Act or regulations passed or made since the third day of September, nineteen hundred and thirty-nine (whether before or after the passing of this Act), the war, the present war, the war with Germany, or the war with Germany and any other State or States, or the duration or termination thereof, is...

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