National Security (Wages of Seamen Detained by the Enemy) Regulations (Cth)

STATUTORY RULES.

1942. No. 367.

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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 August, 1942.

Governor-General.

By His Excellency’s Command,

Ministry of State for Defence.

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National Security (Wages of Seamen Detained by the Enemy) Regulations.

Citation.

1. These Regulations may be cited as the National Security (Wages of Seamen Detained by the Enemy) Regulations.

Administration.

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

Purpose.

3. The purpose of these Regulations is to provide that the wages of Australian mariners shall continue if, while employed in sea-going service under articles of agreement entered into in Australia or, in the case of pilots, while employed on pilot duty, they fall into the hands of the enemy as a result of that employment and are detained, and that the wages so continuing shall be applied for the benefit of those mariners and their dependants and these Regulations shall be administered accordingly.

Definitions.

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

“Australian mariner” means any master or seaman employed in sea-going service under articles of agreement entered into in Australia (other than a master or seaman employed on a ship not registered in Australia who was not resident

 

* Notified in the Commonwealth Gazette on , 1942.

3848.—Price 5d. 20/11.8.1942.

 

in Australia for at least twelve months before the date of the commencement of his detention), and includes any pilot employed or licensed by the Commonwealth or a State or by an authority of the Commonwealth or a State;

“capture” includes seizure, arrest or other restraint;

“detention”, in relation to an Australian mariner, means detention consequent on his capture, or the capture of his ship, as a result of enemy action;

“master” means any person having command or charge of a ship;

“period of detention” means the period beginning on the date on which the detention commences and ending on—

(a) the date of the death of the detained person; or

(b)the earliest date after the commencement of the detention on which it was practicable for the detained person to have arrived back in Australia,

whichever is the earlier date;

“pilot duty” includes the proceeding by sea to a ship for the purpose of performing pilotage duty and the returning by sea after having performed that duty;

“seaman” means every person employed or engaged in any capacity on board a ship, except masters and pilots and persons temporarily employed on the ship in port;

“the Commission” means the Repatriation Commission appointed under the Australian Soldiers’ Repatriation Act 1920-1941;

“under requisition” includes under requisition under the National Security (Shipping Control) Regulations or regulation 57 of the National Security (General) Regulations, or under any Imperial Act or regulation applicable to the ship;

“wages”—

(a) in relation to an Australian mariner (other than a pilot not employed at a monthly or annual rate), means wages at the rate he was receiving or was entitled to receive in respect of his employment as an Australian mariner at the date of the commencement of the period of his detention, inclusive of war bonus (if any) but exclusive of overtime or any other extra allowance or emolument whatever, but subject to any variation made, during the period of his detention, or during the period of his detention and one month thereafter, as the case requires, by any award or other determination of a competent court, commission, tribunal or authority applying to masters or seamen of the rank or rating of the detained Australian mariner; or

(b)in relation to a licensed pilot not employed at a monthly or annual rate, means wages equal to the wages at the monthly rate prescribed by an award of the Commonwealth Court of Conciliation and

 

Arbitration at the date of the commencement of the period of his detention, inclusive of war bonus (if any) but exclusive of overtime or any other extra allowance or emolument whatever, in respect of the master of a sea-going passenger vessel of over six thousand tons but not over eight thousand tons gross registered tonnage, but subject to any variation made, during the period of the pilot’s detention, or during the period of the pilot’s detention and one month thereafter, as the case requires, by any award or other determination of a competent court, commission, tribunal, or authority applying to masters of such vessels;

“war bonus”, in relation to the wages of an Australian mariner, means any addition to his ordinary wages which has been granted by an award of the Commonwealth Court of Conciliation and Arbitration, or by any other competent, court, commission, tribunal or authority, as a special allowance for war risks and for extra duties and discomforts arising out of the existence of a state of war.

Continuance of wages during detention.

5.—(1.) Where by reason of his employment any Australian mariner suffers, or has at any time since the 24th October, 1941, suffered, detention, his wages shall continue in respect of the period of detention and (except where the period of detention is terminated by his death) for one month thereafter, and be paid in accordance with these Regulations:

Provided that—

(a)wages shall not continue under these Regulations where, in the opinion of the Commission, the detention of the Australian mariner was due to serious negligence or serious misconduct on his part; and

(b)where, in the opinion of the Commission, the return of the Australian mariner to Australia is being delayed through his own fault or misbehaviour, wages shall not continue under these Regulations beyond one month after the date on which, in the opinion of the Commission, he would have returned to Australia but for that fault or misbehaviour.

(2.) Where any Australian mariner has suffered or suffers detention in consequence of the loss, as the result of enemy action, of the s.s. Mareeba, his wages shall continue in respect of the period of detention and (except where the period of detention is terminated by his death) for one month thereafter as if these Regulations had been in force at the date when the said s.s. Mareeba was so lost and as if the s.s. Mareeba had been under requisition to the Commonwealth under regulation 57 of the National Security (General) Regulations.

(3.) Where the Commonwealth is liable to pay a detention allowance under the Seamen’s War Pensions and Allowances Act 1940 or under any other law of the Commonwealth in respect of an Australian mariner whose wages continue under these Regulations the provisions of these Regulations shall not impair that liability, but the payment by the Commonwealth of such detention

 

allowance or by any other Government or person of any similar statutory allowance or of his wages, or portion of his wages, in respect of any part of the period of detention shall operate in relief of the liability otherwise imposed by these Regulations and the liability to make payments under these Regulations shall be reduced accordingly.

(4.) Notwithstanding anything contained in paragraph (b) of section 43 or in section 44 of the Seamen’s War Pensions and Allowances Act 1940, no amount shall be deducted from any detention allowance otherwise payable under that Act by reason of any wages becoming payable to or in respect of an Australian mariner under these Regulations.

(5.) The right of an Australian mariner under these Regulations to payment of wages in respect of the period of his detention or the period of his detention and one month thereafter, as the case requires, shall be deemed to be in substitution for, and to supersede and extinguish, any existing or accruing right in respect of the period of his detention, or the period of his detention and of one month thereafter, as the case requires, to any payment of wages or compensation for loss of his employment, whether under the terms of his Articles of Agreement or otherwise arising by reason of the loss or capture of his ship or other event causing his detention, except a right under the Seamen’s War Pensions and Allowances Act 1940 or under any other law of the Commonwealth to a detention allowance or a right to any similar statutory allowance, and these Regulations shall have effect notwithstanding any clause or stipulation in the Articles of Agreement or in any other instrument to the contrary, or giving to the Australian mariner, in the event of his capture and detention, any rights less than the rights conferred on him by these Regulations.

Liabilities for payment of wages.

6.—(l.) Subject to sub-regulation (2.) of regulation 5 of these Regulations the incidence of the liability for wages payable under these Regulations in respect of an Australian mariner shall be as follows:—

(a) If the employment of the Australian mariner was in a ship owned by or in the possession of the Commonwealth or in a ship which was under requisition to the Commonwealth or a Department of State of the Commonwealth, the wages shall be paid by the Commonwealth;

(b)If the employment of the Australian mariner was in a ship under requisition to the Government of the United Kingdom or of any Dominion (other than the Commonwealth) or to any Colonial Government of the British Empire, then the Commonwealth shall be responsible for the payment of the wages, but, as between the Commonwealth and the Government of the United Kingdom or the Dominion or Colonial Government, the liability shall be in accordance with any arrangement that may be made between them and the shipowner shall not be liable unless, under the terms of requisition, it is a liability which he has undertaken or is enforced upon him; and

 

(c) If the employment of the Australian mariner was in any ship not under requisition, the wages for the first eighteen months shall be paid by the shipowner or charterer, as the case may be, and thereafter by the Commonwealth:

Provided that, where in any case liability for payment of wages under these Regulations to or in respect of an Australian mariner falls on the owner or charterer of the ship to which the Australian mariner belonged, and where, by reason of the fact that such ship was not registered in Australia or engaged in the coasting trade, no detention allowance under the Seamen’s War Pensions and Allowances Act 1940 or under any other law of the Commonwealth is payable to or in respect of that Australian mariner, the amount of the owner’s or charterer’s liability shall be limited to that proportion of the Australian mariner’s wages for which the owner or charterer would have been liable under these Regulations if a detention allowance had been so payable, and the liability for payment of the balance of the wages payable under these Regulations shall be upon the Commonwealth.

(2.) The owner or charterer of a ship upon whom a liability for payment of wages to any Australian mariner is imposed by paragraph (c) of the last preceding sub-regulation shall, if any Australian mariner is employed on that ship, insure with the Commonwealth Marine War Risks Insurance Board or, if that Board consents, with some other underwriter in the name and for the benefit of the Commission against his liability under these Regulations to pay wages.

(3.) The owner or charterer of any such ship may apply to the Minister for relief in respect of his obligation under the last preceding sub-regulation on the ground that the ship is being operated at a loss, or, by reason of the amount required to be paid for the insurance, will be so operated.

(4.) The Minister on receipt of any such application shall forthwith refer it to the Commonwealth Prices Commissioner for investigation, report and recommendation.

(5.) The Commonwealth Prices Commissioner shall inquire into and report upon the application, and recommend how the application should be dealt with.

(6.) The Minister shall forthwith after his receipt of the report and recommendation of the Prices Commissioner deal with the application by—

(a)directing that the whole or any portion of the premium for the insurance shall be paid by the Commonwealth; or

(b) refusing the application.

(7.) If a direction is given in pursuance of paragraph (a) of the last preceding sub-regulation, the whole or portion of the premium, as the case may be, shall be paid accordingly.

 

Payments to be made to, and distributed by, Repatriation Commission.

7.—(1.) Amounts payable under these Regulations in respect of an Australian mariner shall be paid, in the first place, to the Commission which shall pay or apply such amounts to or for the benefit of the mariner or his dependants, or both, in accordance with the provisions of these Regulations.

(2.) The amounts so paid to the Commission in respect of each Australian mariner shall be dealt with by the Commission as follows:—

(a)Such proportion (not being more than four-fifths) as the Commission in its discretion thinks proper shall be paid or applied by the Commission for the benefit of the dependants (if any) of the Australian mariner, or any of them.

(b)The remaining proportion shall be reserved by the Commission for the benefit of the Australian mariner and the Commission may, if it thinks fit—

(i) retain this portion for accumulation and payment to the Australian mariner after his detention ends or, if he dies during detention, for payment to his legal personal representative; or

(ii) expend or use the whole or any part of it for the immediate personal benefit of the Australian mariner during the period of his detention.

(3.) In determining the proportion of the amounts to be paid to the dependants of a detained Australian mariner or any of them, and in allocating such proportion among his dependants, if more than one, the Commission may, but shall not be bound to, have regard to the provisions of the Seamen’s War Pensions and Allowances Act 1940 relating to detention allowances.

(4.) Amounts retained by the Commission under this regulation shall, as far as practicable, be invested by the Commission in securities of the Commonwealth.

Persons who are deemed to be dependants.

8. For the purposes of these Regulations, the dependants of an Australian mariner shall be deemed to be those persons who are, or, if the Australian mariner had belonged to a ship registered in Australia and trading between a port in a State or Territory of the Commonwealth and some other port, would be, dependants for the purposes of the Seamen’s War Pensions and Allowances Act 1940, and shall be deemed to include any person who is, or who would be, as the case may be, the separated or de facto wife of the Australian mariner within the meaning of that Act.

Application of provisions of Seamen’s War Pensions and Allowances Act.

9. Subject to these Regulations, the provisions of the Seamen’s War Pensions and Allowances Act 1940, and of the Regulations made thereunder and for the time being in force, in so far as they relate to applications for the grant of, and payment or application of, detention allowances to and in respect of Australian mariners, shall apply, mutatis mutandis, to applications for the grant of, and payment or application of, the wages payable under these Regulations to and in respect of a detained Australian mariner, and, for the purposes of this regulation, the Commission shall have and may exercise and perform in respect of such wages the like powers, functions and duties

 

as are conferred on the Commission by that Act and those Regulations in respect of such detention allowances:

Provided that where an application has been made in proper form, by any interested person, for the grant of a detention allowance under the Seamen’s War Pensions and Allowances Act 1940 such application may, at the discretion of the Commission, be taken as being also an application for benefit under these Regulations.

Presumption of loss of missing ship.

10.—(1.) Where any ship on which an Australian mariner is employed is missing, and it appears to the Commission that it is probable that it has been lost or captured as the result of enemy action, the Commission may direct that, for the purposes of these Regulations, it shall be presumed that the ship has been so lost or captured.

(2.) Where a direction has been issued by the Commission in pursuance of the last preceding sub-regulation then, until that direction is revoked or a further or contrary direction is given, it shall be presumed for the purposes of these Regulations, subject to the succeeding provisions of this regulation—

(a) that the ship has been lost as the result of enemy action but that the crew were saved; and

(b)for a period of twelve months after the ship was last heard of, that the Australian mariner or mariners employed on the ship are being detained by the enemy,

and these Regulations shall apply accordingly.

(3.) Unless the direction given in pursuance of sub-regulation (1.) of this regulation has sooner been revoked or a further or contrary direction has sooner been given, upon the expiration of the period of twelve months after the ship was last heard of, the Commission shall determine in the light of such facts as have been ascertained and according to the probabilities of the case whether the Australian mariner is suffering detention, and according to the determination of the Commission so shall these Regulations apply in respect of the Australian mariner.

Payments made after death of Australian mariner.

11. Where, in respect of any period after the death of an Australian mariner, any person has purported, in pursuance of these Regulations, to pay any amounts in respect of the Australian mariner, then—

(a)such portion (if any) of the amounts as the Commission has, prior to the expiration of the period of four weeks from the date when instalments of pensions first became payable under the Seamen’s War Pensions and Allowances Act 1940 after the receipt by the Commission of the notification of the death of the Australian mariner, purported to pay or apply for the benefit of the dependants (if any) of the Australian mariner, or any of them, or in pursuance of any allotment, shall not be recoverable;

(b)if the portion referred to in the last preceding paragraph is not less than the aggregate of the amounts reserved by the Commission for the benefit of the Australian mariner under these Regulations and the interest accrued from any investment of those amounts or any of them, in respect of any period prior to the death of the Australian mariner, the amounts so reserved, together with the accrued interest, shall be repaid by the Commission to the person who paid the amounts;

 

(c) if that portion is less than the aggregate of the amounts so reserved and the interest accrued from any investment of those amounts or any of them, an amount equivalent to that portion shall be repaid by the Commission out of the amounts so reserved and the accrued interest to the person who paid the amounts; and

(d)such portion of the amounts as the Commission has purported to reserve for the benefit of the Australian mariner, together with the amount of interest accrued from any investment of that portion, shall be repaid by the Commission to the person who paid the amounts to the Commission.

Disputes.

12.—(1.) If any dispute arises under these Regulations, the Minister may appoint a referee and refer the same to him for his determination which shall be final.

(2.) The referee shall be a Judge of the Supreme Court, or of a County, District or Local Court, of a State.

 

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