National Security (Capital Issues) Regulations (Cth)
STATUTORY RULES.
REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939–1940.*
I,
THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the
advice of the Federal Executive Council, hereby make the following Regulations
under the
Dated this eighth day of October, 1940.
GOWRIE
Governor-General.
By His Excellency’s Command,
PERCY C. SPENDER
for and on behalf of the Minister of State for Defence Co-ordination.
NATIONAL SECURITY (CAPITAL ISSUES) REGULATIONS.
Part I.—Preliminary.
(2.) Any consent granted or continued in force, or order made or continued in force, under the Regulations so repealed shall continue in force as if these Regulations had not been made, and shall for all purposes be deemed to be a consent granted or order made under these Regulations.
(3.) Any agreement entered into under regulation 10 of the Regulations so repealed shall be as valid and effectual, and the same rights and remedies shall continue thereunder, as if these Regulations had not been made.
* Notified in the
Part I.—Preliminary.
Part II.—Provisions relating to Companies.
Part III.—Provisions relating to Securities, Mortgages and Charges.
Part IV.—Provisions relating to Deposits.
Part V.—Miscellaneous.
“building society” means any society registered as a building society under the law of any State;
“declared pastoral company” means a company which the Treasurer, by order, declares to be a pastoral company for the purposes of these Regulations;
“loan” includes advance and any other principal moneys secured, or intended to be secured, by a mortgage or charge;
“local authority” includes—
(
a ) any city, municipal, district or shire council; and(
b )any water board, electricity board, sewerage board, harbour board, transport board or roads board constituted by or under the law of a State,and any other body which the Treasurer, by order, declares to be a local authority for the purposes of these Regulations;
“securities” means bonds, debentures, debenture stock and inscribed stock;
“the preceding year”, in relation to any act or transaction, means the period of twelve months ending on the date of the act or transaction;
“the previous Regulations” means the Regulations repealed by these Regulations and by the Regulations so repealed.
Part II.—Provisions Relating to Companies.
(2.) Nothing in this regulation shall prevent the registration in any State or Territory of the Commonwealth, of a company already registered in any other State or Territory of the Commonwealth.
(
a ) increase the nominal capital of the company—(i) in the case of a company registered on or after the thirteenth day of October, 1939, with a nominal capital not exceeding Two thousand five hundred pounds—by any amount; or
(ii) in the case of any other company—by such an amount that the total increase in the nominal capital of the company during the preceding year (including the increase then made) would exceed Two thousand five hundred pounds;
(
b ) make an issue of authorized capital of the company of such an amount that the total amount of authorized capital issued by the company during the preceding year (including the issue then made) would exceed Two thousand five hundred pounds;(
c ) make a call upon shares issued by the company so that the total amount of the calls made by the company during the preceding year (including the call then made) would exceed Two thousand five hundred pounds; or(
d ) issue any shares at a premium.
(2.) In this regulation, “company” includes a society, club or association which has for its purpose, or for one of its purposes, the pecuniary profit or gain of its members.
Part III.—Provisions Relating to Securities, Mortgages and Charges.
(2.) For the purposes of this regulation and of regulation 15 of these Regulations, where, upon the receipt by a person of any loan, the whole or any part of the property or assets of that person becomes mortgaged or charged with the repayment of that loan, that person shall be deemed to have mortgaged or charged that property or those assets, and the amount of that loan shall be deemed to be the amount of the mortgage or charge.
(3.) An application for the consent of the Treasurer under this regulation—
(
a ) shall be in writing and shall be accompanied by particulars in writing of the purpose of the proposed issue, mortgage or charge and such other information as the Treasurer directs; and(
b ) in the case of an application by a local authority, shall be sent to the Treasurer of the State in which the local authority is constituted, for transmission to the Treasurer of the Commonwealth.
(
a ) pay or charge interest at a rate higher than the rate of interest payable under the mortgage or charge; or(
b ) repay, or receive by way of repayment, any amount of capital in excess of the amount of the mortgage or charge.
(2.) A mortgagor or chargor under a mortgage or charge to which consent has been given under these Regulations or the previous Regulations shall not, without the consent in writing of the Treasurer, make any payment to the mortgagee or chargee, or to any other person, the effect of which is that the mortgage or charge is given at a discount or the mortgagor or chargor does not receive the benefit of the full amount borrowed under the mortgage or charge.
(3.) Nothing in this regulation shall prevent the payment by the mortgagor or chargor, or the receipt by the mortgagee or chargee, of any amount representing capitalized interest, or rates, taxes, insurance, repairs or other outgoings paid or incurred by the mortgagee or chargee for the enforcement, protection or preservation of his security, or any costs, charges or expenses paid or incurred by the mortgagee or chargee under or in relation to the security.
(
a ) is made in the ordinary course of business for purposes other than the acquisition of land or of any interest in land; and(
b ) is repayable on demand, or on demand to be made after the expiration of a period not exceeding twenty-eight days from the date of the security, mortgage or charge.
(
a ) to the Government of the State in which the local authority is constituted or to any authority of that State; or(
b ) with the approval of the Treasurer of that State, to any person other than the Government of that State or some authority of that State, so that the total amount of securities issued and mortgages and charges given (including the securities then issued or the mortgage or charge then given) by that local authority during the preceding year does not exceed Twenty-five thousand pounds.
(2.) For the purpose of calculating the amount of Five thousand pounds referred to in the last preceding sub-regulation, account shall not be taken of—
(
a )any mortgage or charge exempted, by order of the Treasurer, from the application of these Regulations or of the previous Regulations;(
b ) any mortgage or charge given in connexion with a loan of the kind referred to in—(i) regulation 12 or 13 of these Regulations;
(ii) paragraph (
a ) of sub-regulation (3.) of regulation 7 of the National Security (Capital Issues) Regulations (being Statutory Rules 1939, No. 149) or in paragraph (a ) of sub-regulation (4.) of that regulation as inserted by Statutory Rules 1940, No. 56; or(iii) sub-regulation (2.) of regulation 6 of the National Security (Capital Issues) Regulations (being Statutory Rules 1939, No. 117);
(
c ) any extension of a mortgage or charge; or(
d )any amount representing rates, taxes, insurance, repairs or other outgoings paid or incurred by a mortgagee or chargee for the enforcement, protection or preservation of his security, or any costs, charges or expenses paid or incurred by a mortgagee or chargee under or in relation to the security.
(
a ) by way of discharge, in pursuance of the terms of the transaction;(
b ) to a guarantor who, in pursuance of the terms of his guarantee, has repaid the whole or part of the loan; or(
c ) in the exercise of a power of sale conferred on the bank or declared pastoral company in pursuance of the terms of the transaction.
(2.) This regulation shall not apply to any assignment or agreement for an assignment—
(
a ) by way of gift;(b) without consideration, in money or money’s worth, to a trustee, personal representative or beneficiary under or by virtue of any settlement, will or intestacy;
(
c ) to a trustee under theBankruptcy Act 1924–1933;(
d ) by way of mortgage or sub-mortgage;(
e ) by way of discharge of a mortgage or sub-mortgage;(
f ) in exercise of any power of sale conferred upon a mortgagee, sub-mortgagee or chargee;(
g ) of any second or subsequent mortgage;(
h ) to a guarantor who, in pursuance of the terms of his guarantee, has repaid the whole or part of the moneys due under a mortgage of a secured debt; or(
i ) of any securities listed by a Stock Exchange in Australia,
but shall not affect the operation of any other regulation.
(2.) For the purposes of the last preceding sub-regulation—
(
a ) a mortgage or charge shall be deemed to be renewed if the principal sum secured thereby is not repaid but becomes payable under another mortgage or charge; and(
b ) the rate of interest payable under a mortgage or charge means, where a reduced rate of interest is provided in the case of punctual payment, that reduced rate, but does not include any rate of interest in respect of payments of the kind referred to in paragraph (d ) of sub-regulation (2.) of regulation 15 of these Regulations,
(
a ) declare in the instrument (if any) of mortgage or charge that the consent of the Treasurer thereto is not required; or(
b ) deliver to the mortgagee or chargee, at the time of giving the mortgage or charge, or at the time of receiving any further loan thereunder, a statutory declaration stating that the consent of the Treasurer to the mortgage, charge or further loan is not required.
(2.) A person shall not make any false statement in any declaration or statutory declaration made under the last preceding sub-regulation.
Part IV.—Provisions Relating to Deposits.
(
a ) in respect of any period commencing on or after the twenty-ninth day of March, 1940, on any existing deposit made before that date with that body by any person other than a bank—(i) at a rate higher than the rate of interest on the deposit on that date; or
(ii) at a rate higher than One pound ten shillings per centum per annum,
whichever is the greater; or
(
b ) on any deposit made after the twenty-ninth day of March, 1940, with that body by a person other than a bank—at a rate higher than One pound ten shillings per centum per annum.
(
a ) at a rate higher than the rate of interest on the deposit on that date; or(
b ) at a rate higher than the maximum rate which would be applicable to the deposit under regulation 22 or 23 of these Regulations, as the case may be, if the deposit had been made after that date,
whichever is the greater.
(
a )where the deposit is repayable at call or at a shorter date than three months—at a rate which exceeds One pound ten shillings per centum per annum; and(
b ) in all other cases—at a rate which exceeds, by more than the amount per centum per annum specified in the second column of the following Table opposite to the term of the deposit specified in the first column of that Table, the amount per centum per annum offered at the date of the deposit by the Commonwealth Bank of Australia on fixed deposits for the term specified in the third column of that Table opposite to the term of the deposit so specified, namely:—
Term of Deposit. | Excess over Commonwealth Bank Fixed Deposit Rate. | Term of Fixed Deposit. |
Per centum per annum. | ||
|
| Three months |
|
| Six months |
|
| Twelve months |
Twenty-four months or more..................... |
| Twenty-four months |
(
a ) where the deposit is repayable at call or at a shorter date than three months—at a rate which exceeds One pound ten shillings per centum per annum; and(
b )in all other cases—at a rate which exceeds the rate of interest offered at the date of the deposit by the Commonwealth Bank of Australia on fixed deposits for the term specified in the second column of the following Table opposite to the term of the deposit specified in the first column of that Table, namely:—
Term of Deposit. | Term of Fixed Deposit. |
Not less than three months but less than six months............................. | Three months |
Not less than six months but less than twelve months.......................... | Six months |
Not less than twelve months but less than twenty-four months | Twelve months |
Twenty-four months or more............................................................. |
Twenty-four months |
(
a ) the deposit is made for the purposes of the normal business of the body with whom the deposit is made; and(
b ) the rate of interest payable on the deposit does not exceed Five pounds ten shillings per centum per annum, or such other rate as the Treasurer, by order, determines.
(
a ) the deposit renewed was in existence on the twenty-ninth day of March, 1940;(
b )the parties to the renewed deposit are the same as the parties to the original deposit;(
c ) the period for which the deposit is renewed is not shorter than the period of the original deposit, or, if the deposit has previously been renewed, of the last preceding renewal; and(
d ) the rate of interest payable in respect of the renewed deposit does not exceed—(i) the rate payable in respect of the deposit on the twenty-ninth day of March, 1940; or
(ii) the rate of One pound ten shillings per centum per annum, or, in the case of a deposit with a building society or declared pastoral company, the maximum rate which would be applicable to that deposit under regulation 22 or 23 of these Regulations, as the case may be,
whichever is the higher.
(
a ) “deposit” means unsecured loan; and(
b ) any sum repaid or repayable in excess of the net amount deposited shall be regarded as interest and shall be taken into account in calculating the rate of interest on the deposit.
Part V.—Miscellaneous.
(
a ) charge interest on any loan made by the bank and existing on the thirty-first day of August, 1939, at a rate above the rate of interest on the loan in force on that date; or(
b ) charge, on any loan made after that date, interest at a rate exceeding the rate of interest charged by the bank on that date in respect of similar loans to its customers.
(2.) A declared pastoral company shall not, without the consent in writing of the Treasurer—
(
a ) charge interest on any loan (not being an unsecured loan) made by the company and existing on the thirty-first day of August, 1939, at a rate above the rate of interest on the loan in force on that date; or(
b ) charge, on any loan (not being an unsecured loan) made after that date, interest at a rate exceeding Five pounds ten shillings per centum per annum, or such other rate as the Treasurer, by order, determines.
(3.) Any sum charged as interest in contravention of sub-regulation (1.) or (2.) of this regulation shall be a debt due by the bank or company to whom it was paid to the person by whom it was paid, and may be recovered in any court of competent jurisdiction.
(4.) The interest payable on any loan made by a bank or declared pastoral company shall not exceed interest payable at the rate chargeable under sub-regulation (1.) or (2.), as the case may be, of this regulation, and the remedies for enforcing any covenant or agreement to pay interest on any such loan shall be limited to enforcing payment of interest at the rate so chargeable.
(2.) Where the consent of the Treasurer is granted subject to conditions, a person, company, society, club, association or body shall comply with all such conditions as are applicable to him or it.
(3.) The Treasurer may refuse to grant any consent under any provision of these Regulations until there are first executed such agreements (including agreements with persons other than the applicant for the consent) with the Treasurer relating to the transaction in respect of which consent is applied for as the Treasurer requires.
(4.) Any agreement under the last preceding sub-regulation—
(
a ) may provide for the payment of a sum of money, whether by way of liquidated damages, penalty or otherwise, for the breach or non-performance thereof and for the taking of security for the payment of any such sum; and(
b ) shall not be held to be void on the ground of any want of consideration therefor, and the parties thereto shall have, in all courts, the same rights and remedies as if the agreement had been supported by valuable consideration.
(2.) A company, society, club, association or body, or any person on its behalf, which or who makes any intimation, whether orally, in writing or in any other way, of the fact of the Treasurer’s consent to an application under these Regulations or the previous Regulations shall include in the intimation a statement in the following terms or in terms of the like effect:—
“The fact that the Treasurer of the Commonwealth has consented to [
here insert particulars of the matters consented to by the Treasurer ] is not to be taken in any way as a guarantee of the actual or probable financial stability or success of the company [or society, club, associationor body,as the case may be ].”.
(2.) An officer shall not, except in the course of his duty or to an officer who has made a declaration in accordance with the provisions of this regulation, or of the previous Regulations, divulge any information furnished in connexion with any application made under these Regulations or under the previous Regulations.
(2.) An order made under this regulation may be expressed to continue in operation for a period specified in the order and, if so expressed, shall continue in operation for that period and no longer.
(
a ) to furnish to the Treasurer or the person so authorized such information as he requires with respect to loans made to any person or to persons included in any class of persons so specified; and(
b ) to attend and give evidence before the Treasurer or the person so authorized concerning any such loan,
and to produce all books, documents and other papers whatever in his custody or under his control relating to any such loan.
(2.) The Treasurer or person so authorized may require the information or evidence to be given on oath or affirmation and either orally or in writing and for that purpose the Treasurer or person so authorized may administer an oath.
(3.) A person shall not refuse or fail to comply with any requirement made in pursuance of sub-regulation (1.) or sub-regulation (2.) of this regulation.
(2.) Where a mortgage, charge or other transaction has been entered into, a security has been issued, or an act has been done, in contravention of the previous Regulations, or any condition subject to which consent was given thereto under the previous Regulations has not been complied with, the mortgage, charge, transaction, security or act shall be as effectual, and the rights, powers and remedies of any person thereunder shall be the same, as if the mortgage, charge, transaction, security or act had not been entered into, issued or done in contravention of the previous Regulations, or the conditions subject to which consent thereto was given had been complied with, as the case may be.
(3.) Nothing in this regulation shall affect the operation of regulation 11, regulation 27, or sub-regulation (4.) of regulation 29, of these Regulations, or affect the liability of any person to any penalty in respect of any contravention of these Regulations or the previous Regulations.
THE SCHEDULE.
Regulation 33.
NATIONAL SECURITY (CAPITAL ISSUES) REGULATIONS.
Declaration by Officer.
———
I, , of , being an officer having duties connected with applications, made under the National Security (Capital Issues) Regulations, do solemnly and sincerely promise and declare that, except in the course of my duty, or to an officer who has made this declaration, I will not divulge any information which is furnished to me or to the Treasurer in connexion with those duties.
Dated this day of , 1940.
(Signature of Officer.)
Declared at this day of , 1940.
Before me—
(Justice of the Peace, Commissioner for taking Affidavits or Commissioner for Declarations.)
By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.
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