National Security (Enemy Property) Regulations (Cth)

STATUTORY RULES.

1942. No. 268.

 

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1940.*

I, THE DEPUTY OF 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 National Security Act 1939-1940.

Dated this nineteenth day of June, 1942.

WAKEHURST

Deputy of the Governor-General.

By His Excellency’s Command,

J. B. CHIFLEY

for and on behalf of the Minister of State

for Defence.

 

National Security (Enemy Property) Regulations.

Citation.

1. These Regulations may be cited as the National Security (Enemy Property) Regulations.

Administration.

2. These Regulations shall be administered by the Treasurer.

Repeal.

3.—(l.) The National Security (Enemy Property) Regulations (being Statutory Rules 1939, No. 102, as amended by Statutory Rules 1940, No. 14 and 1941, No. 282) are repealed.

(2.) Notwithstanding the repeal effected by the last preceding sub-regulation, the Controller of Enemy Property appointed under the repealed Regulations shall continue to hold office as if he had been appointed under these Regulations.

Definitions.

4. In these Regulations, unless the contrary intention appears—

“dividends, interest or share of profits” means any dividends, bonus or interest in respect of any shares, stock, debentures, debenture stock or other obligations of any company, any interest in respect of any loan to a person carrying on business for the purposes of that business, and any profits or share of profits of any business;

 

* Notified in the Commonwealth Gazette on 19th June, 1942.

6217.—Price 5d.

“enemy subject” has the same meaning as in the Trading with the Enemy Act 1939-1940* and includes any person, firm or corporation declared by the Treasurer, in pursuance of these Regulations, to be resident or carrying on business in enemy territory, but does not include any prisoner of war;

“enemy territory” has the same meaning as in the Proclamation made by the Governor-General under section 3 of the Trading with the Enemy Act 1939-1940 on the twenty-fourth day of July, 1940, or within the meaning of any Proclamation varying, or in substitution for, that Proclamation;

“the Controller” means the Controller of Enemy Property holding office under these Regulations;

“the repealed Regulations” means the Regulations repealed by these Regulations.

Treasurer may declare persons, &c., to be resident, &c, in enemy territory.

5.—(1.) Where the Treasurer is satisfied that any person, firm or corporation is resident or carrying on business in enemy territory, the Treasurer may, by notice published in the Gazette, declare that person, firm or corporation to be so resident or carrying on business.

(2). Where any person was, or is, resident or carrying on business in any place at any time within twelve months before that place became, or becomes, enemy territory, that person shall, unless the contrary is proved, be deemed not to have died and not to have ceased to be resident or to carry on business in that place after that place became enemy territory.

(3.) Where any firm or corporation was, or is, carrying on business in any place at any time within twelve months before that place became, or becomes, enemy territory, that firm or corporation shall, unless the contrary is proved, be deemed not to have ceased to carry on business in that place after that place became enemy territory.

 

New Section 5a 79/44. New Section 5b 194/46

* By sub-section (1.) of section 3 of the Trading with the Enemy Act 1930-1940 “enemy subject” is defined as meaning any person, firm or corporation trading with whom or with which would be deemed to be trading with the enemy within the meaning of sub-section (2.) of that section.

Sub-section (2.) of section 3 reads as follows:—

(2.) For the purposes of this Act a person shall be deemed to trade with the enemy, if he performs or takes part in—

(a) any act or transaction which is prohibited by or under any Proclamation made by the King and published in the Gazette, whether before or after the commencement of this Act;

(b)any act or transaction which, by notice published in the Gazette, whether before or after the commencement of this Act, persons are warned not to do or into which by such notice they are warned not to enter;

(c) any act or transaction which is prohibited by or under any Proclamation made by the Governor-General and published in the Gazette; or

(d) any act or transaction which at common law or by statute constitutes trading with the enemy.

  The definition of “enemy territory” in the Proclamation made on the twenty-fourth day of July, 1940. reads as follows:—

“enemy territory” means—

(a) any area which is under the sovereignty of a Power with which His Majesty is for the time being at war, not being an area in the occupation of His Majesty or of a Power allied with His Majesty;

(b) any area which is in the occupation of a Power with which His Majesty is for the time being at war or declared to be in such occupation by the Minister by notice published in the Gazette; or

(c) any other area which the Minister, by notice published in the Gazette, declares to be enemy territory for the purposes of this Proclamation.

 

Controller of Enemy Property.

6.—(1.) For the purposes of these Regulations, there shall be a Controller of Enemy Property, who shall be appointed by the Governor-General and shall hold office during his pleasure.

(2.) The Controller of Enemy Property shall be a corporation sole under that name with perpetual succession and an official seal, and shall be capable of suing and being sued.

Duties of Controller.

7. The Controller shall be charged with the duty of receiving, holding, preserving and dealing with such money as has been or is paid to him, and such other property as came or comes into his possession or under his control, in pursuance of the repealed Regulations or of these Regulations.

Audit of accounts.

8. The accounts of the Controller shall be subject to audit by the Auditor-General for the Commonwealth.

Moneys to be paid into Trust Account.

9.—(1.) The Controller shall pay any moneys received by him under these Regulations into the Trust Account known as the Enemy Subjects Trust Account established by the Treasurer under section 62a of the Audit Act 1901-1934.

(2.) Any interest received from the investment of any moneys standing to the credit of that Trust Account shall be paid into that Account.

Delegation.

10.—(1.) The Controller may, in relation to any particular matters or class of matters, or to any particular State, Territory or part of the Commonwealth, by writing under his hand, delegate all or any of his powers and functions under these Regulations (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate with respect to the matters or class of matters, or the State, Territory or part of the Commonwealth, specified in the instrument of delegation.

(2.) Every delegation under this section shall be revocable at will, and no delegation shall prevent the exercise of any power by the Controller.

Disclosure of property held, &c., on behalf of enemy subjects.

11.—(1.) Where—

(a) any person holds or manages for or on behalf of an enemy subject any real or personal property, including any rights, whether legal or equitable, in or arising out of real or personal property; or

(b) any debt (including a debt in respect of any balance or deposit at any bank or any payment arising under any trust, will or settlement) is due or, if a state of war did not exist, would be due to an enemy subject,

the person or debtor, as the case may be—

(c)shall, within one month after the date of commencement of these Regulations, or—

(i) if the property comes into his possession or under his management or control, or the debt becomes due after that date—within one month after the time when the property comes into his possession or under his management or control, or the debt becomes due; or

 

(ii) if the person for or on whose behalf the property is held or managed or to whom the debt is due becomes an enemy subject after that date—within one month after the time when that person becomes an enemy subject,

by notice in writing communicate the fact to the Controller;

(d) shall furnish the Controller with such particulars in relation thereto as the Controller requires; and

(e) shall comply with any directions given to him by the Controller in respect of that property or debt, and shall not, without the consent in writing of the Controller, pay, deal with or dispose of the debt or property except in accordance with directions given to him by the Controller in respect thereof.

(2.) Where a company which is incorporated in any part of Australia, or which, although not incorporated in any part of Australia, has a share transfer or share registration office in Australia and any share, stock, debenture or debenture stock of the company is registered in the name of an enemy subject, the company—

(a) shall, within one month after the date of commencement of these Regulations, or—

(i) if any share, stock, debenture or debenture stock becomes registered in the name of an enemy subject after that date—within one month after the time when it becomes so registered; or

(ii) if the person in whose name any share, stock, debenture or debenture stock is registered becomes an enemy subject after that time—within one month after that person becomes an enemy subject,

by notice in writing, communicate to the Controller full particulars of the share, stock, debenture or debenture stock; and

(b) shall comply with any directions given to it by the Controller in respect of the share, stock or debenture stock, and shall not, without the consent in writing of the Controller, deal with, dispose of or discharge the share, stock, debenture or debenture stock except in accordance with directions given to the company by the Controller in respect thereof.

(3.) Where—

(a) a firm is an enemy subject;

(b) at least one of the members of a firm is an enemy subject; or

(c) money has been lent to a firm for the purpose of the business thereof by an enemy subject,

 

the members of that firm who are in Australia—

(d)shall, within one month after the date of commencement of these Regulations, or—

(i) if the share of profits or interest becomes due by the firm to an enemy subject after that date—within one month after the time when the share of profits or interest becomes due; or

(ii) if the person to whom the share of profits or interest is due becomes an enemy subject after that date—within one month after the time when that person becomes an enemy subject,

by notice in writing, communicate to the Controller full particulars of any share of profits or interest due by the firm to an enemy subject; and

(e) shall comply with any directions given to them by the Controller in respect of the share of profits or interest and shall not, without the consent in writing of the Controller, pay or otherwise deal with or dispose of the share of profits or interest except in accordance with directions given by the Controller in respect of that share of profits or interest.

(4.) It shall not be necessary for any person who has given notice to the Controller under the repealed Regulations in respect of any property, debt, share, stock, debenture, debenture stock, interest or share of profits to give any notice in respect thereof under these Regulations, but the provisions of these Regulations shall extend thereto.

Certain moneys to be paid to Controller.

12.—(1.) Any sum which, if a state of war did not exist, would be payable and paid to or for the benefit of an enemy subject by way of dividends, interest or share of profits, or would be payable and paid in Australia to any enemy subject—

(a) in respect of interest on securities issued by or on behalf of the Government of the Commonwealth, of any State or of any other part of the King’s dominions, on behalf of any foreign Government, or by or on behalf of any corporation or any municipal or other authority whether within or without Australia; or

(b) by way of repayment, in whole or in part, of any such securities, or securities issued by any company, which have become repayable in whole or in part,

shall, if so directed by the Controller, be paid to the Controller and shall be held by him.

(2.) In the case of dividends, interest or share of profits, the payment shall be made by the person by whom it would have been payable. In the case of sums in respect of the repayment of securities issued by a company, the payment shall be made by the company by which they would have been payable. In the case of all other sums, the payment shall be made by the person through whom the payments in Australia are made.

(3.) The payment shall be accompanied by such particulars as are prescribed, or as the Controller requires.

(4.) Any payment required to be made under this regulation to the Controller shall be made—

(a) in the case of payment of a sum which, if a state of war did not exist, would be payable at the date of the Controller’s direction—within one month after that date; and

(b) in any other case—within one month after the sum, if a state of war did not exist, would have become payable.

(5.) Where any such sum has been paid into any account with a bank, or has been paid to any other person in trust for an enemy subject, the person by whom the payment was made shall (if so directed by the Controller) by notice in writing, require the bank or person to pay the sum to the Controller, and shall furnish the Controller with such particulars as the Controller requires.

(6.) The bank or other person shall, within one week after the receipt of the notice, comply with the requirement and shall be exempt from all liability for having done so.

Discharge of mortgages by Controller.

13. Where any debt paid to the Controller is secured by any mortgage or other security, the Controller shall have power to execute a discharge of the mortgage or other security, or such other instrument having the effect of a discharge as is applicable in the circumstances, and any such discharge or other instrument so executed shall have the same force and effect as if it had been executed by the person to whom the debt was due.

Registration of transfers of shares, &c.

14. Where the Controller directs a company to register any person as the proprietor of any share, stock, debenture or debenture stock of the company, the company shall effect registration accordingly notwithstanding that the Controller is not in possession of the certificate, scrip or other document of title relating thereto.

Debts in liquidation and bankruptcy.

15.—(1.) Where—

(a) any company is being wound up;

(b) any person—

(i) is bankrupt or insolvent;

(ii) has entered into a composition or scheme of arrangement with his creditors or has executed a deed of assignment in favour of his creditors; or

(iii) has executed a deed of arrangement;

(c) the affairs of a person are being liquidated by arrangement; or

(d) the estate of any deceased person is being administered in bankruptcy,

the benefit of all debts and claims which, if a state of war did not exist, would be provable by an enemy subject, or in respect of which an enemy subject would be a creditor, and of all securities therefor, shall, by force of this regulation, be vested in the Controller.

(2.) The Controller shall be entitled to prove for any such debt, to settle and agree accounts, to compromise on disputed matters, to appeal from any rejection of a proof, and, generally, to take such action or proceedings in relation to the debt or claim as he thinks fit.

(3.) Every liquidator of a company, official receiver or trustee in bankruptcy (including every trustee under a scheme of arrangement, deed of assignment, deed of arrangement or liquidation by arrangement) shall, within fourteen days after the date of commencement of these Regulations, or within fourteen days after the facts come to his knowledge, make a return in writing to the Controller of all debts and claims the benefit of which is vested in the Controller under this regulation and shall furnish such accounts and information, and produce for inspection such documents relating thereto, as the Controller requires.

(4.) Where a person has entered into a composition or scheme of arrangement, he shall, within fourteen days after the date of commencement of these Regulations, or within fourteen days after entering into the composition or scheme or arrangement, whichever is the later, make a return in writing to the Controller of all debts and claims the benefit of which is vested in the Controller under this regulation, and shall furnish such accounts and information and produce for inspection such documents relating thereto, as the Controller requires.

Powers of Controller to extend to property not notified.

16. The provisions of these Regulations shall apply with respect to any property held or managed for or on behalf of an enemy subject, debt due to any enemy subject, share, stock, debenture or debenture stock registered in the name of an enemy subject, and any share of profits or interest due by a firm to an enemy subject, of which notice has not been given to the Controller under these Regulations, or the repealed Regulations, as if notice had been so given.

Rate or exchange where money payable in foreign currency.

17. Where any money payable to the Controller under these Regulations is expressed or is payable in any currency other than Australian currency, the payment shall be made in Australian currency at a rate of exchange fixed by the Treasurer.

Payment of money out of Trust Account.

18. Where the Controller is satisfied that the whole or any part of any moneys paid into the Trust Account referred to in regulation 9 of these Regulations (whether the moneys were so paid under these Regulations, under the repealed Regulations or under section 14 of the Trading with the Enemy Act 1939-1940) ought to be paid to any person, the Controller may authorize payment accordingly.

Limitation or power to alter memorandum and articles of association of certain companies.

19. No alteration made after the commencement of this regulation to the memorandum of association or articles of association of a company incorporated under the law of any part of Australia in which more than twenty per centum of the number of shares are held by or for the benefit of enemy subjects shall have any effect unless and until the Controller consents thereto.

Information.

20.—(1.) The Controller may require any person—

(a) to furnish to the Controller, or to such other person as the Controller directs, such information as the Controller or that other person requires; and

 

(b)to attend and give evidence before the Controller or such other person as the Controller directs,

with respect to—

(c) any property or debt;

(d) any share, stock, debenture or debenture stock of a company; or

(e) any share of profits or interest due by a firm,

to which any provision of these Regulations applies, or to which the Controller or other person believes any provision of these Regulations to apply, and may require him to produce all books, documents or papers whatever in his custody or under his control relating thereto.

(2.) The Controller may require the information or evidence to be given on oath or affirmation either orally or in writing and for this purpose the Controller or person before whom the evidence is given may administer an oath.

(3.) A person shall not—

(a) refuse or fail to comply with any requirement made in pursuance of sub-regulation (1.) or (2.) of this regulation; or

(b) with intent to evade the provisions of these Regulations, destroy, mutilate, deface, secrete or remove any book, document or other paper.

Exemption.

21. The Treasurer may, by order, exempt any particular property, debt, share, stock, debenture, debenture stock, share of profits or interest, or all the property, debts, shares, stock, debentures, debenture stock, shares of profits or interest included in a class of property, debts, shares, stock, debentures, debenture stock, shares of profit or interest, from the application of the whole or any of the provisions of these Regulations.

Protection of Commonwealth Controller, &c.

22. No action shall lie against the Commonwealth, the Controller, or any person to whom the powers of the Controller have been delegated, in respect of any act of the Controller or of any such person done, or purporting to be done, in pursuance of these Regulations or of the repealed Regulations.

 

By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.