National Security (Aliens Control) Regulations (Amendment)

Legislation au C1940L00269 Regulations Not in force Legislative Instrument

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STATUTORY RULES.

1940. No.  .

––––––

REGULATION 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 Regulation under the National Security Act 1939-1940.

Dated this Twenty Ninth day of November, 1940.

Governor-General.

By His Excellency’s Command,

For Minister of State for Defence Co-ordination.

 

Amendment of National Security (Aliens Control) Regulations.†

Detention orders.

Regulation 20 of the National Security (Aliens Control) Regulations is amended by omitting sub-regulations (1a.) and (2.) and inserting in their stead the following sub-regulations:—

“(2.) The Minister may at any time by order direct that any enemy alien, who has been sent to Australia for internment in Australia in accordance with arrangements entered into by the Government of the Commonwealth and the Government of the United Kingdom or of any other part of His Majesty’s dominions, be sent to the United Kingdom or to any other part of His Majesty’s dominions or, at the request of the Government of the United Kingdom, to any other country, and the enemy alien shall, as soon as practicable, be sent to the United Kingdom or to the part of His Majesty’s dominions or to the other country specified in the Order.

“(3.) For the purposes of this regulation, the Minister may appoint one or more Aliens Tribunals consisting of a Chairman and two other members. The Chairman shall be a person who holds or has held the office of Justice or Judge of a Federal Court or of a Court of a State

 

* Notified in the Commonwealth Gazette on     , 1940.

† Statutory Rules 1939, No. 88 as amended by Statutory Rules 1939, No. 95; and 1940, Nos. 44, 66, 121, 159, 172 and 201.

7321.—6/28.11.1940.—Price 3d.


or Territory of the Commonwealth, or who is or has been a practising barrister or solicitor of the High Court or of the Supreme Court of a State of not less than five years standing. Every Advisory Committee appointed under regulation 26 of the National Security (General) Regulations, as amended to the date of the commencement of this sub-regulation, shall, by force of this regulation, be an Aliens Tribunal appointed under this regulation.

“(4.) For the purposes of this regulation the Minister may employ such persons as he thinks fit and persons so employed shall not be subject to the Commonwealth Public Service Act 1922-1939 but shall be employed on such terms and conditions as the Minister determines.

“(5.) An enemy alien detained under an order made in pursuance of this regulation may, within the time and in the manner prescribed by or under this regulation—

(a) apply to an Aliens Tribunal for leave to submit objections against the order; and

(b) if such leave is granted, submit objections against the order.

“(6.) An application under sub-regulation (5.) of this order shall be submitted—

(a) where the order was made before the date upon which that sub-regulation came into operation—within fourteen days after that date; and

(b) where the order was made on or after that date—within fourteen days after the date upon which the applicant received notice of the order.

“(7.) The Minister may make Rules as to the conduct of proceedings of Aliens Tribunals, and in particular, as to—

(a)the form and manner in which applications for leave under this regulation shall be submitted to an Aliens Tribunal and the manner in which the decision of the tribunal shall be notified to the applicant;

(b) the manner in which objections against an order may be made to an Aliens Tribunal;

(c) the summoning and examination of witnesses and the production of books, documents and papers;

(d) the administration of oaths and affirmations;

(e) the protection of members of such tribunals and of witnesses summoned to attend or appearing before such tribunals;

(f) the appearance before any such tribunal of the applicant in person, or by counsel, solicitor or agent; and

(g) the place or places at which Aliens Tribunals may sit to hear objections.

“(8.) In any State in which two or more Aliens Tribunals are appointed, the Minister may, if he thinks fit, designate the Chairman of one of those tribunals (being a person who holds or has held the office of Justice or Judge of a Federal Court or of a Court of a State or Territory of the Commonwealth) as the person to whom all applications under sub-regulation (5.) of this regulation by persons detained in that State are to be forwarded, and the Chairman so designated shall forthwith determine by which tribunal in that State any application is to be considered.


“(9.) The functions of an Aliens Tribunal shall be—

(a) to consider applications for leave to submit objections made by enemy aliens in pursuance of this regulation, and to grant or refuse such applications;

(b) in cases where leave is granted, to hear such objections and to make reports and recommendations thereon to the Minister or, where the order objected to was made by a person authorized by the Minister to act under this regulation, to that person.

“(10.) An Aliens Tribunal shall refuse an application for leave to submit objections if the application appears to it to be vexatious or to be based on grounds which would not, in the opinion of the tribunal, be sufficient to justify the release of the applicant.

“(11.) A recommendation for the release of a person who is detained in pursuance of an order under this regulation shall not be made by an Aliens Tribunal unless it is satisfied—

(a) that it is neither necessary nor advisable for the public safety, the defence of the Commonwealth or the efficient prosecution of the war that the person should continue to be detained; and

(b) that the release of the person would not be likely to occasion serious unrest in any Australian community.

“(12.) Where a report is made by an Aliens Tribunal to a person authorized by the Minister to act under this regulation, and that person is not in agreement with any recommendation made by the tribunal, he shall forthwith refer the matter to the Minister for determination.

“(13.) The provisions of this regulation relating to the making of objections against orders shall not apply in relation to orders made against persons who have been sent to Australia for internment in Australia in accordance with arrangements entered into by the Government of the Commonwealth and the Government of the United Kingdom, or of any other part of His Majesty’s dominions.

“(14.) A person in respect of whom an order is made in pursuance of this regulation shall be supplied with aa copy of this regulation.

“(15.) In this regulation ‘the Minister’ means the Minister of State for Defence Co-ordination or the Minister of State for the Army.”.

 

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

Overview

The Statutory Rules of 1940, No. 26, represent a regulation under the National Security Act 1939-1940, introduced by the Governor-General in the context of heightened national security concerns during the Second World War. This legislative instrument was enacted to address the urgent need to manage and relocate enemy aliens within Australia and its territories, reflecting the policy objective of ensuring the safety and security of the Commonwealth during wartime. The regulation empowers the Minister of State for Defence Co-ordination to direct the relocation of enemy aliens who have been sent to Australia for internment, allowing them to be transferred to the United Kingdom or other parts of His Majesty’s dominions, or to other specified countries at the request of the UK government. The regulation further establishes Aliens Tribunals to oversee the process, ensuring that detainees have the opportunity to object to their detention under specific conditions. The enacting body, the Governor-General in the Federal Executive Council, thus aims to provide a structured and legal framework to manage the complex issue of enemy alien internment during a period of national crisis.

Scope and Application

The National Security (Aliens Control) Regulations, as amended by these Statutory Rules, apply to enemy aliens who have been sent to Australia for internment in accordance with arrangements between the Commonwealth of Australia and the Government of the United Kingdom or any other part of His Majesty's dominions. These regulations specifically pertain to the process by which the Minister may order the relocation of such enemy aliens to the United Kingdom, another part of His Majesty’s dominions, or another country at the request of the Government of the United Kingdom. The provisions enable the Minister to appoint Aliens Tribunals, consisting of a Chairman who is a qualified judicial officer or experienced legal practitioner, and two other members, to handle objections and recommendations regarding the detention orders. The regulations outline the procedures for detainees to apply for leave to submit objections and the criteria under which an Aliens Tribunal may grant or refuse such leave, as well as the conditions under which a recommendation for release may be made. Notably, these provisions do not apply to orders made against persons who have been sent to Australia for internment under pre-existing arrangements with the United Kingdom or other dominions. The scope of these regulations is limited geographically to the Commonwealth of Australia and extends to any actions taken under the authority of the Minister of State for Defence Co-ordination or the Minister of State for the Army.

Key Provisions

The main operative sections of this Regulation (National Security (Aliens Control) Regulations Amendment (No. 20) Regulation 1940) include the ability for the Minister to direct the internment of enemy aliens in Australia and their subsequent transfer to the United Kingdom or another part of His Majesty's dominions or another country at the request of the Government of the United Kingdom (Regulation 20(2)). The Regulation also establishes the procedure for appointing Aliens Tribunals to oversee these matters (Regulation 20(3)-(4)). It outlines the process by which enemy aliens can submit objections against their internment orders, including the timeline for submitting such objections (Regulation 20(5)-(6)) and the specific functions and powers of Aliens Tribunals (Regulation 20(7)-(10)). Additionally, the Regulation details the conditions under which an Aliens Tribunal can make recommendations for the release of a detained person (Regulation 20(11)) and the process for handling disagreements between the Tribunal and the Minister (Regulation 20(12)). It also specifies that certain orders made under this Regulation are exempt from the objections process (Regulation 20(13)) and mandates that detainees are to be provided with a copy of the relevant regulations (Regulation 20(14)). The obligations and requirements imposed by the Regulation on the parties or entities it governs include the duty of the Minister to appoint Aliens Tribunals and to determine the terms and conditions of employment for any personnel involved in the internment and transfer processes (Regulation 20(3)-(4)). The Regulation requires the Minister to establish rules governing the conduct of proceedings before the Aliens Tribunals, including the submission of applications, the examination of witnesses, and the administration of oaths (Regulation 20(7)). The Regulations also mandate that the Minister designate a Chairman of the Aliens Tribunals in states where multiple tribunals are appointed, who will be responsible for determining which tribunal will consider an application (Regulation 20(8)). Additionally, the Regulations impose the responsibility on Aliens Tribunals to consider applications for leave to submit objections against internment orders and to make recommendations on the release of detainees based on specified criteria (Regulation 20(9)-(11)). Finally, the Regulations require that any person subject to an order under this Regulation be provided with a copy of the relevant provisions (Regulation 20(14)). The Regulation sets out various offences, penalties, or consequences for breaches of its provisions, although it does not explicitly state penalties. Non-compliance with the requirement to submit objections within the specified timeframes could be considered a breach, potentially leading to the continuation of the internment order without further review. Additionally, any failure by the Minister to appoint Aliens Tribunals or by the Tribunals to follow the prescribed procedures could be viewed as a breach, potentially leading to legal challenges or administrative consequences. The Regulation does not specify maximum penalties for breaches, but such actions could result in civil or administrative penalties as determined by relevant authorities.

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