National Security (Evacuated Areas) Regulations (Cth)

STATUTORY RULES.

1942. No. 155.

–––––––––

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 National Security Act 1939-1940.

Dated this twenty-eighth day of March, 1942.

Governor-General.

By His Excellency’s Command,

for and on behalf of the Minister of State for Defence Co-ordination.

––––––––

National Security (Evacuated Areas) Regulations.

Citation.

1.These Regulations may be cited as the National Security (Evacuated Areas) Regulations.

Administration.

2.These Regulations shall be administered by the Minister of State for the Army.

Definitions.

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

“business” includes a trade and a profession;

“evacuation area” means any area declared to be an evacuation area for the purposes of these Regulations;

“evacuation period” means—

(a) in relation to any unoccupied premises in an evacuation area—the period commencing on the date of the order declaring the area to be an evacuation area or the date on which the premises became unoccupied, whichever is the later, and ending on such day as the Minister, by order, appoints in relation to the area;

 

*Notified in the Commonwealth Gazette on  , 1942.

1301.—Price 5d. 25/11.3.1942.

 

(b) in relation to any goods which are the subject of a contract for their hire or hire-purchase by any person who has ceased to reside or to carry on business in any evacuation area—the period commencing on the date of the first-mentioned order or the date on which that person ceased to reside or carry on business, as the case may be, whichever is the later, and ending on such day as the Minister, by order, appoints in relation to the area;

“lease” includes an agreement for a lease and any contract of tenancy;

“legal remedy” means any remedy by way of—

(a) the levying of distress on, or the taking of possession of, any property, or the appointment of a receiver of any property;

(b) re-entry upon any land;

(c) the realization of any security or the forfeiture of any deposit;

(d) the rescission of any agreement for the sale and purchase of land; or

(e) serving of any demand in pursuance of any law relating to companies requiring the company to pay any debt.

“mortgage” includes a charge;

“the appropriate court” means—

(a) where the matter at issue does not exceed in value the sum of Five hundred pounds—a court of limited civil jurisdiction in the State or Territory of the Commonwealth in which the transaction was entered into constituted by a Police, Stipendiary or Special Magistrate or by a barrister, solicitor, attorney or proctor, or, if there is no such court, the High Court, or the Supreme Court of that State or Territory;

(b) where the matter at issue exceeds in value the sum of Five hundred pounds but does not exceed in value the sum of Two thousand pounds—a District Court, County Court or Local Court of Full Jurisdiction in the State or Territory of the Commonwealth (other than the Territory of New Guinea) in which the transaction was entered into, or, if there is no such court, or the transaction was entered into in the Territory of New Guinea, the High Court, or the Supreme Court of the State or Territory of the Commonwealth in which the transaction was entered into; and

(c) in any other case—the High Court, or the Supreme Court of the State or Territory of the Commonwealth in which the transaction was entered into.

Regulations to bind the Crown.

4.These Regulations shall bind the Crown in right of the Commonwealth or of any State.

Declaration of evacuation areas.

5.Where it appears to the Minister that by reason of the extent to which any area has been or is likely to be evacuated these Regulations ought to apply in relation thereto, he may, by order, declare that area to be an evacuation area for the purposes of these Regulations.

Relief to persona in respect of rent, rates and other local debts.

6.—(1.) Subject to this regulation—

(a) no rent or rates payable in respect of any premises in an evacuation area which are unoccupied at the date when the area is declared an evacuation area, or subsequently become unoccupied, and no sum secured or charged on any such premises, and no sum payable periodically in respect of any right enjoyed in connexion with any such premises, and no sum payable under any contract or otherwise for the supply of water, gas, electricity or telephone services to any such premises, shall be recoverable during the evacuation period;

(b) no sum shall be recoverable during the evacuation period under any contract for the hiring or hire purchase of goods by a person who, in the case of goods used solely for the purpose of a business, has ceased to carry on that business in an evacuation area or, in any other case, has ceased to reside in the area; and

(c) no remedy arising in consequence of a default in the payment of any such rent, rates or sum shall be enforceable (whether by proceedings in any court or otherwise) during the evacuation period.

(2.) Nothing in the last preceding sub-regulation shall apply—

(a) to any such rent or sum payable under a lease, mortgage or other contract entered into after the commencement of these Regulations;

(b) to any such rent or sum which accrued due and payable before the commencement of the evacuation period;

(c) to any such rates payable in respect of a rating period completed before the commencement of the evacuation period; or

(d) to any sum payable under a contract for the hiring or hire purchase of goods, unless the goods or some part thereof were in the area at the commencement of the evacuation period and have not been removed from that area by or on behalf of the hirer before the date on which the sum first accrued due and payable.

(3.) For the purposes of the last preceding sub-regulation—

(a) in determining at what date any part of a capital sum secured or charged on any premises and payable or repayable by instalments, or any part of the hire purchase price payable under a hire purchase agreement, accrued due and payable, regard shall not be had to any provision under which the whole amount outstanding accrues due and payable on a default in the payment of any instalment; and

(b) no part of any capital sum so secured or charged and not payable or repayable by instalments shall be deemed to have accrued due and payable unless and until a written demand for payment has been served on the person liable and a period of three months, or such longer period (if any) as is specified in the demand, has elapsed since the service of the demand.

(4.) No liability shall arise during the evacuation period under any contract of guarantee, indemnity or insurance entered into before the commencement of these Regulations by reason of a default in the payment of any rent, rates or sum to which sub-regulation (1.) of this regulation applies.

(5.) If the person entitled to any rent, rates or sum to which sub-regulation (1.) of this regulation applies satisfies the appropriate court—

(a) in the case of unoccupied premises, that the person entitled to possession thereof has at any time since the commencement of the evacuation period resided in the area;

(b) in any case, that the person liable, or any other person with his consent, has enjoyed a substantial benefit from the premises or goods, as the case may be, since the commencement of the evacuation period or, in the case of any rent, rates or sum payable in respect of a period commencing before the evacuation period, since the commencement of the earlier period; or

(c) in any case, that the lease, mortgage, contract or other obligation under which the liability arises relates also to property other than premises or goods to which that sub-regulation applies,

the court may make such order removing or modifying, in relation to the particular liability, any of the restrictions imposed by this regulation as it thinks just, and, for the purpose of the order, may apportion any part of the liability to any period or to any premises or goods.

(6.) For the purposes of this regulation—

(a) premises requisitioned by or on behalf of any government department shall, without prejudice to the right of any person to compensation in respect of the premises or to any application to the appropriate court under the last preceding sub-regulation in respect of any such compensation, be deemed to be unoccupied;

(b) premises shall not be deemed to be occupied by reason only of the presence therein of furniture or other goods, and a person shall not be deemed to remain in occupation of any premises or to continue to reside or carry on business in an evacuation area by reason only that he intends, when circumstances affecting the area permit, to return to the premises or area or to resume the business.

Preservation of property and disposal of goods.

7.—(1.) With a view to preventing or minimizing the loss to the persons interested or the waste of goods essential to the life of the community by the destruction of or damage to property in an evacuation area, any person appointed by the Minister to be an authorized person for the purposes of these Regulations may, if it appears to him that no other person in the area has authority to act in relation to any such property, take or authorize the taking of any measures for the preservation or removal of the property which he considers necessary or expedient, and, in any case where there are urgent reasons for disposing of goods owing to their perishable nature or otherwise, sell or otherwise dispose of those goods.

(2.) Any person acting under this regulation shall be deemed to be acting on behalf of the persons interested in the property and may exercise any such other powers as he may be authorized by those persons to exercise.

(3.) A person acting under this regulation shall not, so long as he acts in good faith, be under any liability by reason of anything done or omitted to be done by him.

Restriction of execution of judgments and exercise of legal remedies.

8.—(1.) Where any judgment or order is or has been given or made for the payment or recovery of a sum of money due under any contract, or for the recovery of possession of land in default of payment of rent, against any person affected directly or indirectly—

(a) by the evacuation of an evacuation area or by the provisions of these Regulations in their application to such an area;

(b) by the evacuation of any premises in pursuance of advice given by or on behalf of any government department; or

(c) by any order made under regulation 32 of the National Security (General) Regulations, requiring the removal of animals from any area,

then, if the person against whom the judgment or order is or has been given or made shows that the contract or lease was entered into before the commencement of these Regulations, and that by reason of his being so affected he is unable immediately to satisfy the judgment or order, or to pay the rent, no person shall be entitled, without leave of the court by which the judgment or order was given, to proceed to execution or otherwise to the enforcement of the judgment or order.

(2.) Where any person so affected is in default in the payment of any rent or other sum due, or in the performance of any other obligation arising, under a lease, mortgage or other contract made before the commencement of these Regulations, then, if he satisfies the appropriate court that he is unable immediately to pay the rent or other sum or to perform the obligation by reason of his being so affected, the court may, either unconditionally or subject to such conditions as the court thinks just, make an order—

(a) prohibiting or suspending the exercise of any legal remedy, which may be available against him for the enforcement thereof;

(b) in the case of a mortgage, prohibiting the institution of any proceedings for foreclosure or for sale in lieu of foreclosure or for the recovery of possession of the mortgaged property; or

(c) staying any such proceedings previously instituted.

Jurisdiction of courts.

9.—(1.) If, on any application to a court under these Regulations, any objection based on the value of the matter at issue is taken to the jurisdiction of the court, the court shall determine the objection summarily, but the decision of the court shall not operate as an estoppel between the parties or their privies in any subsequent proceeding.

(2.) An order made by a court under these Regulations shall not be appealed against, questioned or reviewed in any manner whatsoever, or be restrained or removed by prohibition, injunction, certiorari or otherwise howsoever, by reason of any want of jurisdiction arising out of the value of the matter at issue.

–––––––––––––––––

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