Defence (Certification of Deaths) Regulations (Cth)

Defence (Certification of Deaths) Regulations 1953

Statutory Rules 1953 No. 61 as amended

made under the

Defence Act 1903

This compilation was prepared on 23 December 2003

taking into account amendments up to SR 2001 No. 305 and

Act No. 135 of 2003

Prepared by the Office of Legislative Drafting,

Attorney-General’s Department, Canberra

Contents

      1Name of Regulations [see Note 1]

 These Regulations are the Defence (Certification of Deaths) Regulations 1953.

2Repeal of the National Security (War Deaths) Regulations

 The National Security (War Deaths) Regulations (comprising Statutory Rules 1942, No. 473; Statutory Rules 1943, No. 135; Statutory Rules 1944, Nos. 100 and 150; Statutory Rules 1945, No. 3; Statutory Rules 1946, Nos. 1 and 81; and Statutory Rules 1951, No. 68) are repealed.

3Amendments of the Defence Force Regulations

• (1)

  Regulation 2 of the Defence Force Regulations is amended by omitting the words:

   ‘Part VII-Certificates of Death on Service (Regulations

  32–38).’.

• (2)

  Part VII of the Defence Force Regulations is repealed.

4Certificates issued under the National Security (War Deaths) Regulations and the Defence Force Regulations

• (1)

  The repeal of the National Security (War Deaths) Regulations effected by regulation 2 and of Part VII of the Defence Force Regulations effected by sub-regulation 3 (2) does not affect the validity of:

  • (a)

    a certificate of death on war service issued under, or having effect by virtue of, the National Security (War Deaths) Regulations and uncancelled at the commencement of these Regulations;

  • (b)

    a certificate of death on service issued under Part VII of the Defence Force Regulations and uncancelled at the commencement of these Regulations; or

  • (c)

    a certificate issued under regulation 9 of the National Security (War Deaths) Regulations or under regulation 38 of the Defence Force Regulations and uncancelled at the commencement of these Regulations.

• (2)

  For the purposes of these Regulations:

  • (a)

    a certificate to which paragraph (1) (a) or (1) (b) applies shall be deemed to be, and shall have effect as if it were, a certificate of death to which these Regulations apply; and

  • (b)

    a certificate to which paragraph (1) (c) applies shall be deemed to be, and shall have effect as if it were, a certificate issued under regulation 13.

• (3)

  For the purposes of this regulation, a reference to a certificate of death on war service issued under the National Security (War Deaths) Regulations includes a reference to a certificate issued under those Regulations which, for the purposes of those Regulations, is deemed to be a certificate of death on war service.

5Interpretation

• (1)

  In these Regulations, unless the contrary intention appears:

  certificate of death to which these Regulations apply means a certificate issued by a competent authority under regulation 7 or 8, and includes a corrected certificate issued under

  sub-regulation 11 (3).

  competent authority means:

  • (a)

    in relation to the certification, or matters relating to the certification, of the death of a member of the Navy-a person authorized under the next succeeding regulation to issue certificates of death of members of the Navy;

  • (b)

    in relation to the certification, or matters relating to the certification, of the death of a member of the Army-a person authorized under that regulation to issue certificates of death of members of the Army;

  • (c)

    in relation to the certification, or matters relating to the certification, of the death of a member of the Air Force-a person authorized under that regulation to issue certificates of death of members of the Air Force; and

  • (d)

    in relation to the certification, or matters relating to the certification, of the death of a person who is not a member of the Defence Force-a person authorized under that regulation to issue certificates of death of persons who are not members of the Defence Force.

  service includes service outside Australia.

  war means a war in which Australia has been or is engaged, and includes the war-like operations in Korea after 26 June 1950, or in Malaya after 28 June 1950.

• (2)

  For the purposes of these Regulations:

  • (a)

    a member of the Defence Force shall be deemed to be on service while he is a prisoner of war or interned in a place outside Australia; and

  • (b)

    a person, not being a member of the Defence Force, who accompanies a part of the Defence Force shall be deemed to be a member of, and on service with, that part of the Defence Force.

6Persons may be authorized to issue certificates of death

• (1)

  The Minister of State for Defence may, by notice in the Gazette, authorize a person to issue certificates of death of members of the Navy, the Army or the Air Force.

• (4)

  The Attorney-General may, by notice in the Gazette, authorize a person to issue certificates of death of persons who are not members of the Defence Force.

• (5)

  An authority given to a person under this regulation does not authorize that person to issue a certificate otherwise than in accordance with these Regulations.

7Certificates of death of members of the Defence Force

 Where a competent authority is satisfied that, from information available in the Department of Defence, a member of the Defence Force, while on service:

• (a)

  died on a particular date;

• (b)

  died on or after a particular date;

• (c)

  died on or before a particular date; or

• (d)

  became missing on a particular date and for official purposes is presumed to have died,

the competent authority may issue a certificate that that person-

• (e)

  died on that date;

• (f)

  died on or after that date;

• (g)

  died on or before that date; or

• (h)

  became missing on that date and is for official purposes presumed to be dead;

as the case may be.

8Certificates of death of persons who are not members of the Defence Force

 Where a competent authority is satisfied that, from information available in the Attorney-General’s Department, a person, not being a member of the Defence Force, while in the hands of an enemy or in other circumstances which make proof of death difficult (being circumstances arising out of a war):

• (a)

  died on a particular date;

• (b)

  died on or after a particular date;

• (c)

  died on or before a particular date; or

• (d)

  became missing on a particular date and for official purposes is presumed to have died;

the competent authority may issue a certificate that that person:

• (e)

  died on that date;

• (f)

  died on or after that date;

• (g)

  died on or before that date; or

• (h)

  became missing on that date and is for official purposes presumed to be dead;

as the case may be.

9Effect of certificates

• (1)

  A certificate of death to which these Regulations apply is in all Courts and before all persons acting judicially prima facie evidence of the death of the person named in the certificate on the date specified in the certificate as the date on which, or on or after which, or on or before which, he died or on which he became missing, as the case may be.

• (2)

  A Court or a person acting judicially shall, in relation to a certificate of death to which these Regulations apply, take judicial notice of the signature of a competent authority and of the fact that he is or has at any time been a competent authority.

• (3)

  A person who, acting in good faith on the presumption of the death of a person in respect of whom a certificate of death to which these Regulations apply has been issued, and while that certificate is uncancelled, pays money or transfers property to a person who is entitled to receive the money or property on the assumption that the person named in the certificate died or is presumed to be dead as stated in the certificate:

  • (a)

    obtains a good discharge in respect of that money or property; and

  • (b)

    in the event of the person named in the certificate being in fact alive subsequently to the date so specified, is not subject to any liability, civil or criminal, in connexion with that money or property, to which he would not have been subject if the person named in the certificate had died on the date so specified.

10No security required in connection with probate or administration

 Where probate of the will, or administration of the estate, of a person in respect of whom a certificate of death to which these Regulations apply has been issued is granted or proposed to be granted and the certificate is uncancelled at the time of the grant, leave of a Court is not required for the distribution or administration of the estate, and a bond, surety or other security shall not be required of any person for the restoration, repayment or replacement upon any condition or event of moneys or other property forming part of the estate which would not be required if the death of the person in respect of whom the certificate was issued had been conclusively proved.

11Cancellation and correction of certificates

• (1)

  Where:

  • (a)

    a certificate of death to which these Regulations apply has been wrongly issued;

  • (b)

    a certificate of death to which these Regulations apply ceases to be in accord with the information available in the relevant Department; or

  • (c)

    subsequently to the issue of a certificate of death to which these Regulations apply, it is found that the certificate is incorrect in some particular;

  a competent authority may, by notice in writing served personally or by the post at the last-known place of abode of the person to be served, require a person having possession of the certificate to forward it to the competent authority.

• (1A)

  A person is guilty of an offence if:

  • (a)

    the person is served with a notice under subregulation (1) requiring the person to forward a certificate; and

  • (b)

    the person is in possession of the certificate; and

  • (c)

    the person does not comply with the requirement as soon as practicable.

  Penalty:   1 penalty unit or imprisonment for 3 months.

• (1B)

  In paragraph (1A) (a), strict liability applies to the physical element that the notice is made under subregulation (1).

  Note Forstrict liability, see section 6.1 of the Criminal Code.

• (2)

  A competent authority may, on obtaining possession of a certificate of death to which paragraph (1) (a), (1) (b) or (1) (c) applies, cancel or correct the certificate, as the case requires.

• (3)

  Where, subsequently to the issue of a certificate of death to which these Regulations apply, it is found that the certificate is incorrect in some particular, a competent authority may, in accordance with these Regulations, issue a corrected certificate notwithstanding that the certificate previously issued has not been cancelled, but the issue of the corrected certificate shall not in any way affect the rights of a person acting, without knowledge of the issue of that certificate, in reliance on the certificate previously issued.

12Certificate of death not to be used if competent authority requires it

• (1)

  A person is guilty of an offence if:

  • (a)

    the person knows that a competent authority has demanded, or wishes to secure, a certificate of death to which these Regulations apply; and

  • (b)

    the person presents the certificate to another person or otherwise makes use of, or acts in reliance upon, the certificate.

  Penalty:   1 penalty unit or imprisonment for 3 months.

• (2)

  In paragraph (1) (a), strict liability applies to the physical element that these Regulations apply to the certificate of death.

  Note Forstrict liability, see section 6.1 of the Criminal Code.

13Proof of life on information available after issue of certificate of death

• (1)

  A competent authority may issue a certificate stating that, from information available in the Department of Defence or the Attorney-General’s Department, as the case may be, there is reason to believe that the person named in a certificate of death to which these Regulations apply is or may be alive.

• (2)

  Notwithstanding anything contained in a law of a State or a Territory or any probate or letters of administration granted under such a law, a certificate issued under this regulation is, subject to the effect of a certificate of death issued subsequently to the issue of the certificate under this regulation, in all Courts and before all persons acting judicially prima facie evidence that the person named in the certificate is alive.

• (3)

  A person who, acting in good faith in reliance on a certificate issued under this regulation, pays money or transfers property to a person who is entitled to receive the money or property on the assumption that the person named in the certificate is alive:

  • (a)

    obtains a good discharge in respect of that money or property; and

  • (b)

    in the event of the person named in the certificate being in fact dead, is not subject to any liability, civil or criminal, in connexion with that money or property, to which he would not have been subject if the person named in the certificate had been alive at the date of the payment or transfer.

• (4)

  A certificate may be issued in respect of a person under this regulation notwithstanding that a certificate of death to which these Regulations apply previously issued in respect of that person has not been cancelled, but, after the issue of the certificate under this regulation, the certificate of death is, subject to sub-regulation (5), of no force or effect.

• (5)

  A certificate under this regulation does not affect the rights of a person acting, without knowledge of the issue of the certificate, in reliance on a certificate of death to which these Regulations apply previously issued.

• (6)

  Subject to this regulation, regulations 11 and 12 apply to and in relation to a certificate issued under this regulation in the same manner, mutatis mutandis, as they apply to and in relation to a certificate of death to which these Regulations apply.

Notes to the Defence (Certification of Deaths) Regulations 1953

Note 1

The Defence (Certification of Deaths) Regulations 1953 (in force under the Defence Act 1903) as shown in this compilation comprise Statutory Rules 1953 No. 61 amended as indicated in the Tables below.

Table of Statutory Rules

Year and number	Date of notification in Gazette	Date of commencement	Application, saving or transitional provisions
1953 No. 61	25 June 1953	25 June1953
1976 No. 24	3 Feb 1976	9 Feb 1976	—
1981 No. 229	21 Aug 1981	21 Aug 1981	—
2001 No. 305	15 Oct 2001	15 Dec 2001	—
as amended by
Act No. 135, 2003	Date of Assent: 17 Dec 2003	15 Oct 2001	—

Table of Amendments

ad. = added or inserted  am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
R. 1.........................................	rs. 2001 No. 305
Rr. 4–7....................................	am. 1976 No. 24
R. 11.......................................	am. 1976 No. 24; 2001 No. 305
R. 12.......................................	am. 1976 No. 24
rs. 2001 No. 305
R. 13.......................................	am. 1976 No. 24; 1981 No. 229