National Security (Fair Rents) Regulations (Cth)

STATUTORY RULES.

1941. No. 62.

––––––

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 fifth day of March, 1941.

Governor-General.

By His Excellency’s Command,

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

National Security (Fair Rents) Regulations.

Citation.

1. These Regulations may be cited as the National Security (Fair Rents) Regulations.

Repeal.

2.—(1.) The National Security (Fair Rents) Regulations (being Statutory Rules 1939, No. 104, as amended by Statutory Rules 1939, No. 118 and 1940, No. 133) are repealed.

(2.) Notwithstanding the repeal effected by the last preceding sub-regulation—

(a)every Fair Rents Board constituted under the repealed Regulations shall continue in existence as if constituted under these Regulations but may be abolished in accordance with these Regulations;

(b) every notice made under paragraph (b) of sub-regulation (1a.) of regulation 5 of the repealed Regulations and in force at the commencement of these Regulations shall continue in force as if made under these Regulations but may be varied or revoked by notice under these Regulations;

 

* Notified in the Commonwealth Gazette on March, 1941.

1217.—16/20.3.1941.—Price 8d.

(c) all rules for regulating the procedure of Fair Rents Boards made under the repealed Regulations and in force at the commencement of these Regulations shall continue in force as if made under these Regulations but may be varied or revoked by rules made under these Regulations;

(d)all determinations of fair rents made under the repealed Regulations and in force at the commencement of these Regulations shall continue in force as if made under these Regulations but may be varied in accordance with these Regulations; and

(e) all pending applications to, and other pending proceedings before, a Fair Rents Board under the repealed Regulations may be determined in accordance with these Regulations.

Administration.

3. These Regulations shall be administered by the Minister of State for Trade and Customs.

Definitions.

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

“application” means an application to a Fair Rents Board under these Regulations or under the repealed Regulations;

“determination” means the determination of the fair rent of any prescribed premises, or of any goods leased therewith, made in pursuance of these Regulations or of the repealed Regulations;

“dwelling-house” means any premises leased wholly or in part for the purposes of residence by a lessee, and includes—

(a) any part of any such premises separately leased;

(b) any land or appurtenances leased with any such premises or part thereof;

(c) the premises of any lodging-house or boarding-house; and

(d)any premises part of which is used for the purposes of residence and part as a shop,

but does not include—

(e) any premises licensed for the sale of spirituous or fermented liquors;

(f) any premises ordinarily leased for holiday purposes; or

(g)the premises of any grazing area, farm, orchard, market garden or dairy farm;

“factory” means any premises leased wholly or in part for the purposes of a factory, and includes—

(a) any part of any such premises separately leased; and

(b) any land or appurtenances leased with any such premises or part thereof;

“Fair Rents Board” or “Board” means a Fair Rents Board constituted or continued in existence under these Regulations;

 

“lease” includes every contract for the letting of any prescribed premises, whether the contract is made orally, in writing or by deed, and includes a contract for the letting of prescribed premises together with goods;

“lessor” and “lessee” mean the parties to a lease, and include a sub-lessor and sub-lessee respectively;

“prescribed premises” means any dwelling-house, shop or factory;

“rates” includes any rates or charges made or levied by any local authority or other local governing body, including any municipal or city council and water or sewerage authority;

“rent” means the actual rent payable under a lease, and includes—

(a)the value to the lessor of any covenants, conditions or other provisions of, or relating to, the lease to be performed by the lessee other than covenants, conditions and provisions usually entered into by a lessee; and

(b) any rates or taxes payable by a lessee in respect of any prescribed premises other than excess water rates,

and where, in any lease—

(c) it is provided that a reduced amount, as rent, shall be accepted by the lessor upon any condition to be performed by the lessee, that reduced amount shall be deemed to be the rent payable under the lease; and

(d)any rebate, discount, allowance or other reduction is provided for, the amount payable after each such reduction is made shall be deemed to be the rent payable under the lease;

“shop” means any premises leased wholly or in part for the purposes of a shop, and includes—

(a) any part of any such premises separately leased;

(b) any land or appurtenances leased with any such premises or part thereof;

“tax” includes any tax, whether on land or on income derived from land, imposed by any Act, State Act or law of a Territory:

“Territory” means Territory of the Commonwealth;

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

Expenditure of Boards in the States.

5. Expenditure incurred or arising under these Regulations in a State shall not be borne by the Commonwealth.

Rent not to be increased in certain cases.

6.—(1.) In any State in which a Fair Rents Board is constituted at the commencement of these Regulations, the rent payable by the lessee of any prescribed premises (or of prescribed premises together with goods) in respect of any period after the commencement of these Regulations shall not exceed the rent payable in respect thereof at the

thirty-first day of December, 1940, notwithstanding any term or covenant in any lease in force at any time after the commencement of these Regulations.

(2.) In any State or Territory in which there is no Fair Rents Board constituted at the commencement of these Regulations but in which a Board is subsequently constituted, the rent payable by the lessee of any prescribed premises (or of prescribed premises together with goods) in respect of any period after the Board is established shall not exceed the rent payable in respect thereof at the date on which the Board is established, notwithstanding any term or covenant in any lease in force at any time after that date.

(3.) Where the powers conferred by these Regulations on Fair Rents Boards in a State or Territory may be exercised in relation to certain prescribed premises (including goods leased therewith) only or to a limited class of prescribed premises (including goods leased therewith) only, the provisions of this regulation shall apply in relation to those prescribed premises (including goods leased therewith) only, or to that limited class of prescribed premises (including goods leased therewith) only, in that State or Territory.

(4.) Nothing in this regulation shall affect the operation of any determination.

Constitution of Fair Rents Boards in the States.

7.—(1.) The Governor in Council of a State may, for the purposes of these Regulations, constitute Fair Rents Boards in the State at such places as he thinks fit.

(2.) Each Fair Rents Board shall have such powers as are, conferred upon it by these Regulations, and may exercise those powers—

(a) in relation to all prescribed premises (including goods leased therewith) in the State in which the Board is constituted; or

(b)where the Governor in Council of a State certifies, by notice published in the Government Gazette of the State, that it is desirable that the powers of Boards constituted in that State shall be exercisable with respect to certain prescribed premises only, or with respect to a limited class of prescribed premises only—in relation to those prescribed premises (including goods leased therewith) only or to that limited class of prescribed premises (including goods leased therewith) only.

(3.) Each Fair Rents Board in a State shall consist of a Police, Stipendiary or Special Magistrate, and, if the Governor in Council thinks fit, two other persons.

(4.) The member or members of a Fair Rents Board in a State shall be appointed by the Governor in Council of that State and shall hold office during his pleasure.

(5.) The Governor in Council of a State may make rules for regulating the procedure of any Fair Rents Board in that State.

Constitution of Fair Rents Boards in the Territories.

8.—(1.) The Minister may, for the purposes of these Regulations, constitute Fair Rents Boards in any Territory at such places as he thinks fit.

(2.) Each Fair Rents Board shall have such powers as are conferred upon it by these Regulations, and may exercise those powers—

(a)in relation to all prescribed premises (including goods leased therewith) in the Territory in which the Board is constituted; or

(b) where the Minister certifies, by notice published in the Gazette, that it is desirable that the powers of Boards constituted in a Territory shall be exercisable with respect to certain prescribed premises only, or with respect to a limited class of prescribed premises only— in relation to those prescribed premises (including goods leased therewith) only or to that limited class of prescribed premises (including goods leased therewith) only.

(3.) Each Fair Rents Board in a Territory shall consist of a Police, Stipendiary or Special Magistrate, and, if the Minister thinks fit, two other persons.

(4.) The member or members of a Fair Rents Board in a Territory shall be appointed by the Minister and shall hold office during his pleasure.

(5.) The Minister may make rules for regulating the procedure of any Fair Rents Board in a Territory.

Abolition of Fair Rents Boards.

9.—(1.) The Governor in Council of a State may abolish any Fair Rents Board in that State and the Minister may abolish any Fair Rents Board in a Territory.

(2.) Where a Fair Rents Board is abolished, the Governor in Council, or the Minister, as the case may be, may, by order, make provision for the transfer of pending applications to, and other pending proceedings before, the Board to some other Fair Rents Board in the State or Territory in which the Board so abolished was constituted and any pending applications and other pending proceedings so transferred may be determined by the Board to which they are transferred.

Exercise of powers of Board.

10. Where a Fair Rents Board consists of three persons—

(a) the Magistrate shall be the Chairman of the Board;

(b) for the purpose of the exercise of its powers and functions, two members of the Board shall form a quorum; and

(c) subject to the last preceding paragraph the powers and functions of the Board may be exercised notwithstanding any vacancy in the membership of the Board.

Application for determination of fair rent.

11.—(1.) The lessor, or a lessee who has paid or tendered all rent due and payable under the lease, of any prescribed premises (not being prescribed premises in relation to which a Fair Rents Board is not authorized to exercise the powers conferred by these Regulations), may apply to the Fair Rents Board nearest to the prescribed premises in the State or Territory in which they are situated, or, if there is only one Fair Rents Board in the State or Territory, to that Board, to have the fair rent of the prescribed premises determined by the Board.

(2.) The Board shall hear the application and determine the fair rent of the prescribed premises.

(3.) The applicant shall give notice of the application to the lessor or lessee, as the case may be.

(4.) A notice required to be given to a lessor under the last preceding sub-regulation shall be deemed to have been duly given if it is served upon the person to whom the rent of the prescribed premises in respect of which the application is made is ordinarily paid.

(5.) Where any prescribed premises in respect of which an application is made are the subject of a mortgage, the lessor shall give notice of the application to the mortgagee, who shall be entitled to be a party to the application.

(6.) On the hearing of the application, the Board shall make a thorough investigation without regard to legal forms or solemnities, and shall not be bound by any rules of evidence, but may inform itself in such manner as it thinks fit.

Lease of prescribed premises together with goods.

12.—(1.) An application under the last preceding regulation may be made for the determination of the fair rent under a lease of prescribed premises together with goods.

(2.) On the hearing of the application, the Board shall determine the fair rent of the prescribed premises irrespective of the goods and may also, in its discretion, determine the fair rent of the goods.

Effect of determination of fair rent.

13.—(1.) The fair rent determined by the Board shall be the rent of the prescribed premises (and, where any determination is made in respect of the rent of goods leased therewith, of the goods so leased) as from a date to be fixed by the Board, not being earlier than the date of the application, or, if the Board determines the fair rent at an amount exceeding the rent payable under the lease at the date of the application, not earlier than the date of the expiration of fourteen days after the date of the determination.

(2.) Where any prescribed premises are occupied by two or more lessees, the Board shall determine the fair rent of the whole, and then determine the proportion thereof which it deems to be a fair rent of the portion of the prescribed premises of the lessee making the application, or in the case of an application by the lessor, of the portions of the prescribed premises separately occupied.

Boards may determine fair rents of their own motion.

14.—(1.) The Fair Rents Board nearest to any prescribed premises (not being prescribed premises in relation to which a Fair Rents Board is not authorized to exercise the powers conferred by these Regulations) in the State or Territory in which they are situated may, of its own motion, after inquiry, determine the fair rent of the premises and of any goods leased therewith.

(2.) The Board shall give notice of its intention to hold an inquiry as to the fair rent of any premises (including goods leased therewith) to the lessor and to the lessee of the premises.

(3.) The notice to the lessor may be given in the manner provided by sub-regulation (4.) of regulation 11 of these Regulations and, if the premises are the subject of a mortgage, the lessor shall give notice as prescribed by sub-regulation (5.) of that regulation.

(4.) At the inquiry, the Board shall have the same powers as the Board has on the hearing of an application and any determination made by the Board shall have the same effect for all purposes as a determination made upon an application.

(5.) If there is only one Fair Rents Board in a State or Territory, that Board may exercise the powers conferred by this regulation in relation to any prescribed premises (including goods leased therewith) in that State or Territory.

Duration and effect of determination.

15.—(1.) A determination shall remain in force for such period, not less than three months nor more than one year, as is specified in the determination, but may be varied in accordance with these Regulations.

(2.) A determination shall, while it is in force, apply to any lease of the prescribed premises (or portion thereof to which the determination relates) or, where a determination is made in respect of prescribed premises and of goods leased therewith, to any lease of those premises together with those goods, for the time being subsisting, and to the lessor and lessee thereof, notwithstanding any change of ownership or tenancy.

(3.) During the period during which a determination is in force—

(a)an application shall not be made to vary the determination, or to determine the fair rent of the prescribed premises (or portion thereof to which the determination relates) or goods leased therewith, except by the lessor where the Board is satisfied that substantial alterations or additions have been made to the premises, or goods leased therewith, since the determination, or that the outgoings of the lessor in respect of the premises, or goods leased therewith, have been increased; and

(b)the rent payable by the lessee shall not exceed the fair rent determined by the Board, notwithstanding any term or covenant in any lease in force at the time of the application or at any time thereafter during that period.

Premises not to be let at rent exceeding fair rent, overpayments may be recovered etc.

16. Where the rent of any prescribed premises (including the rent of any goods leased therewith) is fixed by virtue of regulation 6 of these Regulations or by a determination—

(a) a person shall not—

(i) let the premises, or goods leased therewith, at a rent exceeding the rent so fixed or determined; or

(ii) knowingly receive any sum as rent exceeding the rent so fixed or determined;

(b) the legal remedies for the enforcement of any covenant or agreement—

(i) to pay rent for the premises, or goods leased therewith, exceeding that so fixed or determined; or

(ii) which, directly or indirectly, would secure to any person the payment of rent or of money in respect of the occupation of the premises, or of the use of the goods leased therewith, so that the amount received by that person would exceed the rent so fixed or determined,

shall be limited to the enforcement of payment of the rent so fixed or determined; and

(c) any sum paid as rent for, or in respect of the occupation of, the premises, or for the use of the goods leased therewith, exceeding the rent so fixed or determined, shall be recoverable in an action for debt in any competent court by the lessee from the lessor to whom it was paid.

Rent not to be increased or tenancy determined so long as fair rent paid.

17.—(1.) Where the rent of any prescribed premises (including the rent of any goods leased therewith) is fixed by virtue of regulation 6 of these Regulations or by a determination, then, so long as the lessee duly pays the rent and otherwise performs the terms and conditions of

his lease, the lessor shall not, without the consent of a Fair Rents Board, demand any increased rent or give any notice or take any proceeding to terminate the tenancy.

(3.) Any demand, notice or proceeding made, given or taken in contravention of the provisions of sub-regulation (2.) of this regulation shall be of no force or effect.

(4.) It shall not be deemed to be a contravention of the provisions of sub-regulation (2.) of this regulation if the lessor takes proceedings to obtain possession of the prescribed premises or of any goods leased therewith, or does anything in furtherance of that object, if—

(a) the lessee has failed to pay the rent or to perform the other terms and conditions of the lease;

(b)the lessee has failed to take reasonable care of the premises, or of any goods leased therewith, or has committed waste;

(c) the lessee has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers;

(d) the premises are used for any immoral purpose;

(e) the premises are bona fide required by the lessor for his own occupation as a dwelling-house, shop or factory and the lessor gives at least twenty-eight days’ notice to the lessee requiring him to quit the premises;

(f) the lessor has, upon sale of the premises, agreed to give vacant possession thereof to the purchaser and gives at least twenty-eight days’ notice to the lessee requiring him to quit the premises;

(g)the lessee, by sub-letting the premises or any part thereof, or any goods leased therewith, is making a profit.

Contracting out prohibited.

18. Any covenant or agreement by which any person purports to limit his right to proceed under these Regulations for the determination of the fair rent of any prescribed premises, or of any goods leased therewith, or to limit or affect any other rights to which he would be entitled under these Regulations shall be void.

Threats and boycotts prohibited.

19.—(1.) A person shall not, by any threat, endeavour to dissuade or prevent a lessee from making or prosecuting any application under these Regulations.

(2.) The owner of any prescribed premises, and the agent of any such owner, shall not refuse, or procure any person to refuse, to lease the premises to any other person who desires to lease the same unless the reason for that refusal (proof whereof shall lie upon the owner or agent) was other than the fact that that other person had made an application to a Board under these Regulations.

(3.) A person shall not do, or procure to be done, any act or thing for the purpose of imposing any detriment or disadvantage upon a lessee because the lessee has made an application under these Regulations.

Board’s decisions to be final.

20. Every determination of a Board shall be final and without appeal, and no writ of prohibition or certiorari shall lie in respect thereof.

Costs not to be allowed.

21. No costs shall be allowed in any proceedings under these Regulations.

Representation by counsel, &c.

22. Any person who is a party to any proceedings under these Regulations, or may be affected by the result of any such proceedings, may, with the approval of the Board, be represented by counsel, solicitor or agent, who may examine witnesses and address the Board on that person’s behalf.

Summoning of witnesses and production of documents.

23. The Chairman of a Board, or where a Board consists of a Magistrate only, that Magistrate, may, by summons in writing under his hand, summon any person to attend the Board at the time and place mentioned in the summons, and then and there to give evidence and to produce any books, documents or writings in his custody or control which he is required by the summons to produce.

Administration of oaths and affirmations.

24. Any member of a Board may administer an oath or affirmation to any person appearing as a witness before the Board, whether the witness has been summoned or appears without being summoned, and may examine the witness upon oath or affirmation.

Failure to attend or produce documents.

25.—(1.) A person who has been served with a summons to attend a Board shall not, without reasonable excuse, refuse or fail to attend the Board or to produce any documents, books or writings in his custody or control which he was required by the summons to produce.

(2.) It shall be a defence to a prosecution for failing, without reasonable excuse, to produce any documents, books or writings if the defendant proves that the documents, books or writings were not relevant to the subject-matter of the proceedings before the Board.

Refusal to be sworn or give evidence.

26. A person appearing as a witness before a Board shall not refuse to be sworn or make an affirmation or to answer any question relevant to any proceedings before the Board put to him by any member of the Board or by any counsel, solicitor or agent appearing before the Board.

False testimony.

27. A witness before a Board shall not knowingly give false testimony in any evidence given by him to the Board.

Protection to and liability of witnesses.

28. A witness before a Board shall have the same protection and shall, in addition to the penalties provided by the National Security Act 1939-1940, be subject to the same liabilities in any civil or criminal proceeding, as a witness in any case tried in the Supreme Court of the State or Territory in which the Board is appointed.

Protection of reports and proceedings.

29.—(1.) No action or proceeding, whether civil or criminal, shall lie against any person for publishing in good faith for the information of the public—

(a) a copy of or a fair extract from, or a fair abstract of, any determination made by a Board; or

(b) a fair and accurate report of any proceedings before a Board.

(2.) A publication shall be deemed to be made in good faith for the information of the public if the person by whom it is made was not actuated by ill-will against the person defamed or by any other improper motive.

Contempt of Board.

30.—(1.) A person shall not wilfully insult or disturb a Board, or interrupt the proceedings of aBoard, or use any insulting language to aBoard, or by writing or speech use words which are false or defamatory of a Board, or otherwise commit any wilful contempt of a Board.

(2.) The Chairman of a Board, or, where a Board consists of a Magistrate only, that Magistrate, shall, in relation to any offence under sub-regulation (1.) of this regulation committed in the face of the Board, have all the powers of a Justice of a High Court sitting in open court in relation to a contempt committed in the face of the Court.

Protection to Board.

31. Every member of a Board shall, in the exercise of his duty as a member of the Board, have the same protection and immunity as a Justice of the High Court.

Information as to fair rent.

32. A Board shall, on application, furnish to any person information as to the fair rent of any prescribed premises, or of any goods leased therewith, determined by the Board.

Variation of determinations.

33. An application for the variation of a determination shall be made in the same manner as an application to the Board for a determination.

 

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