National Security (War Service Moratorium) Regulations (Amendment) (Cth)

STATUTORY RULES.

1948. No. 109.

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REGULATIONS UNDER THE DEFENCE (TRANSITIONAL PROVISIONS) ACT 1946-1947.*

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 Defence (Transitional Provisions) Act 1946-1947.

Dated this twelfth day of August, 1948.

W. J. McKELL

Governor-General.

By His Excellency’s Command,

N. E. McKENNA

for and on behalf of the Minister of State for Post-war Reconstruction.

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Amendments of the National Security (war Service Moratorium) Regulations. 

Repeal of regulation 29.

1. Regulation 29 of the National Security (War Service Moratorium) Regulations is repealed.

2. Regulation 30 of the National Security (War Service Moratorium) Regulations is repealed and the following regulation inserted in its stead :—

Modification of laws relating to recovery of possession of premises, &c.

“30.—(1.) For the purposes of this regulation, a person shall not be deemed to be a protected person unless he is—

(a) a member of the Forces who—

(i) is ; or

(ii) was, for a total period of not less than twelve months during his period of war service,

required, by reason of his war service, to live in premises other than premises occupied by him, or by a member of the household to which he belongs, as a home ;

 

* Notified in the Commonwealth Gazette on 13th August, 1948.

  Being the Regulations having that title as in force under the Defence (Transitional Provisions) Act 1946-1947 as amended by Statutory Rules 1947, No. 99 and 1948, No. 55. The Regulations were also amended by the Defence (Transitional Provisions) Act 1946. The Regulations under the National Security Act 1939-1946 having the corresponding title comprise Statutory Rules 1941, No. 61, as amended by Statutory Rules 1941, Nos. 85, 134 and 263; 1942, Nos. 73, 208, 319, 437 and 498; 1943, Nos. 6, 10, 26, 88, 90, 124, 129, 187, 312 and 313; 1944, Nos. 18, 31, 83 and 176; 1945, Nos. 32, 90 and 101; and 1946, Nos. 86, 87 and 125.

4419.—Price 5d.

(b) adischarged member of the Forces who was—

(i) immediately prior to his discharge ;

(ii) for a continuous period of not less than three months during the period of six months immediately prior to his discharge ; or

(iii) for a total period of not less than twelve months during his period of war service, so required ;

(c) a female dependant of a member or a parent of a member and that member—

(i) is ; or

(ii) was, for a total period of not less than twelve months during his period of war service,

so required ; or

(d) afemale dependant of a discharged member or a parent of a discharged member and that member was—

(i) immediately prior to his discharge, ceasing to be engaged on war service or death, as the case may be ;

(ii) for a continuous period of not less than three months during the period of six months immediately prior to his discharge, ceasing to be engaged on war service or death, as the case may be ; or

(iii) for a total period of not less than twelve months during his period of war service,

so required.

(2.)For the purposes of this regulation, unless the contrary intention appears—

‘ dwelling house ’ means premises leased for the purposes of residence, and includes—

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

(b)any part of premises which is leased for the purpose of residence, whether forming a complete residence in itself or otherwise,

but does not include premises licensed for the sale of spirituous or fermented liquors ;

‘ lease ’ includes every contract for the letting of premises, whether the contract is express or implied or is made orally, in writing or by deed, and includes a contract for the letting of premises together with goods, but does not include a lease arising under an attornment clause in a mortgage or in an agreement for the sale and purchase of land ;

‘ lessor ’ and ‘ lessee ’ mean the parties to a lease, or their respective successors in title, and include—

(a) a mesne lessor and a mesne lessee ;

(b) a sub-lessor and a sub-lessee ;

 

(c) in respect of premises which are subject to a mortgage, a mortgagee who enters or has entered into possession of the premises under the mortgage and a person who was the lessee of the premises under the mortgagor immediately prior to the mortgagee entering into possession ; and

(d)where there is more than one lessor or lessee, any one or more of the lessors or lessees,

respectively ;

‘ premises ’ means any premises other than—

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

(b)premises which are ordinarily occupied by a lessor as a permanent residence but are for the time being occupied by a lessee to whom the premises were leased for a specified term for holiday purposes only, which term has expired,

and includes land, any part of any premises and any land or appurtenances leased with any premises.

“3. This regulation shall not apply in relation to premises of which the Crown in right of the Commonwealth or a State, or a housing authority constituted under the law of any State, is the lessor.

“(4.) An order shall not be made for the recovery of possession of premises from a lessee (being a protected person), or for the ejectment from premises of a lessee (being a protected person), unless the court making the order is satisfied—

(a) that the lessee has failed to pay the rent in respect of a period of not less than fifty-six days ;

(b) that the lessee has failed to perform or observe some other term or condition of the lease and the performance or observance of that other term or condition has not been waived or excused by the lessor ;

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

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

(e) that the lessee or some other person has been convicted, during the currency of the lease, of an offence arising out of the use of the premises for an illegal purpose or that a court has found or declared that the premises have, during the currency of the lease, been used for some illegal purpose ;

(f) that the premises—

(i) being a dwelling house—are reasonably required by the lessor for occupation by himself or by some person who ordinarily resides with, and is wholly or partly dependent upon, him ; or

(ii) not being a dwelling house—are reasonably required for occupation by the lessor or by a person associated or connected with the lessor in his trade, profession, calling or occupation ;

(g)that the premises are used as, or have been acquired for use as, a parsonage, vicarage, presbytery or other like premises and are reasonably required for the personal occupation of a minister of religion (including a person who, although not ordained, is performing all the duties of a minister of religion) ;

(h)that the lessor is a trustee and the premises are reasonably required by a beneficiary under the trust for his personal occupation or for the occupation of some person who ordinarily resides with, and is wholly or partly dependent upon, him ;

(i) that the lessor is a person, body or authority carrying on a hospital, or a trustee for such a person, body or authority, and the use of the premises is reasonably required for the purposes of the hospital (including the accommodation of the staff of the hospital) ;

(j)that the premises have been occupied, or are occupied, in consequence of his employment by some person in the employ of the lessor and are reasonably required for the personal occupation in consequence of that employment of some other person employed by, or about to become employed by, the lessor ;

(k) that the lessee became the lessee of the premises by virtue of an assignment or transfer which the lessor has not consented to or approved ; or

(l)that the lessee has sub-let the premises or some part thereof by a sub-lease which has not been consented to or approved by the lessor.

“(5.) An order shall not be made on the ground specified in paragraph (k) or (l) of the last preceding sub-regulation—

(a)where the lessee became the lessee by virtue of an assignment or transfer made before the fourteenth day of March, 1947, or the sub-lease was granted before that date ;

(b) where the lease is for a fixed term—unless that term has expired ; or

(c) where the lease is a periodic lease—unless the period which was current at the date on which the assignment, transfer or sub-lease took effect has expired.

“(6.) Where a tenancy has been lawfully determined and a person claiming under the lessee and actually in possession of the premises or any part thereof is a protected person, an order for the ejectment of

persons from those premises or for the recovery of possession of those premises shall not be enforced against the protected person unless the court which made the order is satisfied—

(a) that the protected person has failed to pay the rent in respect of a period of not less than fifty-six days ;

(b)that the protected person has failed to perform or observe some other term or condition of his tenancy and the performance or observance of that other term or condition has not been waived or excused by his landlord ;

(c) that the protected person has failed to take reasonable care of the premises, or of any goods the property of his landlord, or has committed waste ;

(d)that the protected person has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers ;

(e) that the protected person or some other person has been convicted, while the protected person was actually in possession of the premises or part thereof, of an offence arising out of the use of the premises or part thereof for an illegal purpose or that a court has found or declared that the premises or part thereof have, while the protected person was actually in possession of the premises or part thereof, been used for some illegal purpose ;

(f) that the premises—

(i) being a dwelling house—are reasonably required by the person in whose favour the order was made for occupation by himself or by some person who ordinarily resides with, and is wholly or partly dependent upon, him ; or

(ii) not being a dwelling house—are reasonably required for occupation by the person in whose favour the order was made or by a person associated or connected with him in his trade, profession, calling or occupation ;

(g) that the premises are used as, or have been acquired for use as, a parsonage, vicarage, presbytery or other like premises and are reasonably required for the personal occupation of a minister of religion (including a person who, although not ordained, is performing all the duties of a minister of religion) ;

(h)that the person in whose favour the order was made is a trustee and the premises are reasonably required by a beneficiary under the trust for his personal occupation or for the occupation of some person who ordinarily resides with, and is wholly or partly dependent upon, him ; or

(i)that the person, body or authority in whose favour the order was made is a person, body or authority carrying on a hospital, or a trustee for such a person, body or authority,

and the use of the premises is reasonably required for the purposes of the hospital (including the accommodation of the staff of the hospital),

and gives leave to enforce the order against the protected person.

“(7.) Except in the case of an order made in circumstances specified in paragraph (a), (b), (c), (d), (e), (j), (k) or (l)of sub-regulation (4.) of this regulation, an order shall not be made against a protected person unless the court, in addition to being satisfied upon any other ground upon which the court is required to be satisfied, is further satisfied—

(a)that reasonably suitable alternative accommodation (in this regulation referred to as ‘the alternative accommodation’) is, or has been since the elate upon which notice to quit was given, available for the occupation of the protected person in lieu of the premises in respect of which the making of an order is sought (in this regulation referred to as ‘the premises at present occupied’) ; or

(b) that the protected person (being the lessee) has sublet the premises in respect of which the making of an order is sought and is permanently residing elsewhere.

“(8.) Except in the case of an order made in circumstances specified in paragraph (a), (b), (c), (d) or (e) of sub-regulation (6.) of this regulation, a court shall not give leave to enforce an order against a protected person, unless the court, in addition to being satisfied upon any other ground upon which the court is required to be satisfied, is satisfied that reasonably suitable alternative accommodation (in this regulation referred to as ‘the alternative accommodation’) is available for the occupation of the protected person in lieu of the premises in respect of which the giving of leave to enforce an order is sought (in this regulation referred to as ‘the premises at present occupied’).

“(9.) For the purposes of the last two preceding sub-regulations, accommodation shall not be deemed to be reasonably suitable unless—

(a) the rent of the alternative accommodation does not exceed the rent of the premises at present occupied ;

(b)the floor area of the alternative accommodation is not less than the floor area of the premises at present occupied ;

(c) in the case of a dwelling house—the alternative accommodation is not less congenial than the premises at present occupied ; and

(d)the conditions generally appertaining to the alternative accommodation are not inferior to the conditions appertaining to the premises at present occupied.

“(10.) The provisions of sub-regulations (4.) to (9.) (inclusive) of this regulation shall not apply in relation to premises of which a protected person is the lessor.

“(11.) Where proceedings have been taken by a lessor who is a protected person to recover possession of premises from a lessee who is not a protected person or for the ejectment from premises of a lessee who is not a protected person, any provisions of the law of a State or Territory of the Commonwealth as to the availability or otherwise of alternative accommodation for the lessee shall not be applicable.

“(12.) Where by any law of a State or Territory it is provided that a person who has become the lessor of a dwelling house by purchase shall not, within a period longer than six months after the date of the agreement for purchase, give a notice to quit on any ground, a lessor who is a protected person may give a notice to quit at the expiration of six months from that date.”.

Letting of unoccupied houses to protected persons.

3. Regulation 30aof the National Security (War Service Moratorium) Regulations is amended by omitting from sub-regulation (1.) the symbols and figure “(9.)” and inserting in their stead the symbols and figure “(1.)”.

 

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