National Security (Land Transfer) Regulations

Legislation au C1940L00141 Regulations Not in force Legislative Instrument

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STATUTORY RULES.

1940. No. 141.

––––––

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 third

day of July         , 1940.

Governor-General.

By His Excellency’s Command,

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

 

National Security (Land Transfer) Regulations.

Citation.

1. These Regulations may be cited as the National Security (Land Transfer) Regulations.

Definitions.

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

“enemy alien” means a subject of a country with which His Majesty is at war;

“naturalized person of enemy origin” means a person who having been a subject of Germany, Austria or Italy, is a naturalized British subject by virtue of a certificate of naturalization issued, in any part of the King’s dominions, to himself or to his father or mother, or (in the case of a married woman) to her husband, and includes the wife of any such naturalized person;

“subject of a country in enemy occupation” means a subject of a country which the Attorney-General, by order published in the Gazette, declares to be wholly or in part in the occupation of a Power with which His Majesty is at war.

Widow of enemy alien who was natural-born British subject.

3. For the purposes of these Regulations, a woman who is the widow of an enemy alien and who prior to marriage was a natural-born British subject, shall be deemed to be a naturalized person of enemy origin.

 

* Notified in the Commonwealth Gazette on      , 1940.

4448.—20/19.7.1940.—Price 3d.


Transfer of land to enemy aliens forbidden.

4. A person shall not enter into a contract or agreement for the sale of land to an enemy alien or providing for the acquisition, in any contingency, by an enemy alien of a freehold or perpetual leasehold title to any land.

Lease of land to enemy aliens forbidden.

5. A person shall not enter into any contract or agreement for—

(a) a lease of land to an enemy alien for a term of more than five years; or

(b) the assignment to an enemy alien of a lease of land of which a period of more than five years is unexpired.

Mortgage or encumbrance of land to or by enemy aliens forbidden.

6. An enemy alien shall not give, and a person shall not take from an enemy alien, a mortgage or an encumbrance of any land or of a leasehold estate or interest in land under a lease of which a period of more than five years is unexpired.

Transfer of land to certain persons forbidden without consent.

7. A person shall not enter into any contract or agreement for the sale of land to a naturalized person of enemy origin or to a subject of a country in enemy occupation, or providing for the acquisition in any contingency by any such person or subject of a freehold or perpetual leasehold title to land, unless the consent in writing of the Attorney-General has first been obtained.

Lease of land to certain persons forbidden without consent.

8. A person shall not enter into any contract or agreement for—

(a) a lease of land to a naturalized person of enemy origin or to a subject of a country in enemy occupation for a term of more than five years; or

(b) the assignment to a naturalized person of enemy origin or to a subject of a country in enemy occupation of a lease of land of which a period of more than five years is unexpired,

unless the consent in writing of the Attorney-General has first been obtained.

Mortgage or encumbrance of land to certain persons forbidden without consent.

9. A naturalized person of enemy origin or a subject of a country in enemy occupation shall not give, and a person shall not take from any such person or subject, a mortgage or encumbrance of any land or of a leasehold estate or interest in land under a lease of which a period of more than five years is unexpired, unless the consent in writing of the Attorney-General has first been obtained.

Transactions in declared districts forbidden without consent.

10.—(1.) The Attorney-General may, by order published in the Gazette, declare any district to be a district in relation to which this regulation applies.

(2.) A person shall not enter into any contract or agreement—

(a) for the sale to a person whose father is or was an enemy alien of any land in a district in relation to which this regulation applies;

(b) providing for the acquisition in any contingency by any such person of a freehold title or perpetual leasehold title to land in any such district;

(c) for a lease to any such person for a term of more than five years of land in any such district; or


(d) for the assignment to any such person of a lease of land in any such district of which a period of more than five years is unexpired,

unless the consent of the Attorney-General in writing has first been obtained.

(3.) A person whose father is or was an enemy alien shall not give, and a person shall not take from any such person, a mortgage or encumbrance of land in any such district or of a leasehold estate or interest in land in any such district under a lease of which a period of more than five years is unexpired, unless the consent in writing of the Attorney-General has first been obtained.

Renewal of lease deemed to be part of original lease.

11. Where any contract or agreement for the lease of land contains a provision enabling the lease to be renewed for any period upon the expiration of the original term of the lease, the period for which the lease may be so renewed shall, for the purposes of these Regulations, be deemed to be part of the lease.

Mortgages to secure balance of purchase money.

12. Nothing in these Regulations shall prevent—

(a) the giving or taking of a mortgage to secure the balance of purchase money of land or of any estate or interest in land sold by an enemy alien, a naturalized person of enemy origin or a subject of a country in enemy occupation; or

(b) the re-conveyance of land or of an estate or interest in land to an enemy alien, a naturalized person of enemy origin or a subject of a country in enemy occupation, upon discharge of a mortgage thereon.

Contracts in contravention of Regulations void.

13. Any contract, agreement or other transaction entered into, and any instrument executed, in contravention of these Regulations shall be void and of no effect:

Provided that this regulation shall not apply to a contract, agreement or transaction entered into in contravention of regulation 7, 8, 9 or 10 of these Regulations, or to an instrument executed in contravention of regulation 17 of these Regulations, where the Attorney-General in writing declares that he is satisfied that the contravention was due to inadvertence and subsequently gives his consent to the contract, agreement or transaction, or the execution of the instrument.

Certain persons may be declared to be naturalized persons of enemy origin.

14. Where, in the case of any person whose father was or is an enemy alien, a naturalized person of enemy origin or a subject of a country in enemy occupation, the Attorney-General, by order published in the Gazette, declares that there is, in his opinion, good reason to believe that that person is disloyal or that it is desirable that these Regulations should apply to him, the provisions of these Regulations shall apply in relation to that person as if he were a naturalized person of enemy origin.

Applications for Attorney-General’s consent.

15.—(1.) An application for the consent of the Attorney-General under these Regulations shall be made in writing to the Attorney-General and shall be accompanied by a statutory declaration giving full particulars of the name, address, date and place of birth, parentage and occupation of the person making the application, and setting out the


area, situation and value of the land, full particulars of the proposed contract, agreement, mortgage or encumbrance, and such other information as the Attorney-General requires, and the grounds upon which the application for the consent of the Attorney-General is based.

(2.) The Attorney-General may, after making such further inquiry (if any) as he thinks fit, in his absolute discretion grant or refuse consent to the application.

Transactions on behalf of enemy subjects.

16. Any provision of these Regulations which prohibits, either absolutely or without consent, any transaction to which an enemy alien, a naturalized person of enemy origin or a subject of a country in enemy occupation, is a party, shall extend to prohibit, to the same extent, any transaction to which a person acting for or on behalf of any such person or subject is a party.

Provisions relating to contracts entered into prior to commencement of Regulations.

17. Where, prior to the commencement of these Regulations, any contract or agreement has been entered into which, if it had been entered into after the commencement of these Regulations, would have been prohibited either absolutely or without consent, a person shall not execute any instrument to give effect to the contract or agreement unless the consent in writing of the Attorney-General has first been obtained.

Returns.

18.—(1.) Every enemy alien, naturalized person of enemy origin, or subject of a country in enemy occupation, who has, on or after the third day of September, 1939, and prior to the commencement of these Regulations, acquired any land, any perpetual leasehold title to land or any leasehold estate or interest in land under a lease for a period of more than five years, shall furnish particulars thereof in writing, within such period, in such manner, and in accordance with such form, as the Attorney-General, by order published in the Gazette, directs.

(2.) A person shall not furnish any such particulars which are false in any material respect.

Registrar of Titles may require evidence.

19. The Registrar of Titles or other proper officer of any State or Territory of the Commonwealth may, upon submission to him, for registration in accordance with the laws of the State or Territory, of any instrument relating to a transaction in connexion with any land, require such evidence as he deems necessary that the transaction to which the instrument relates is not in contravention of any provision of these Regulations, and that the instrument has not been executed in contravention of these Regulations, and may refuse to register the instrument until such evidence is submitted to him.

 

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

Overview

The National Security (Land Transfer) Regulations 1940 were enacted by the Governor-General in Council under the authority of the National Security Act 1939-1940. These regulations were introduced during a time of national security concern, specifically in response to the risks posed by enemy aliens and persons of enemy origin in relation to land transactions. The overarching policy objective of these regulations was to prevent the transfer of land and encumbrances to individuals deemed a threat to national security, thereby safeguarding the nation's assets and interests during wartime. The regulations impose strict prohibitions on the sale, lease, and mortgage of land to enemy aliens and persons of enemy origin, unless explicitly authorised by the Attorney-General. The regulations also empower the Attorney-General to declare certain districts where additional restrictions apply and to declare individuals as naturalized persons of enemy origin based on specific criteria.

Scope and Application

The National Security (Land Transfer) Regulations, made under the National Security Act 1939-1940, apply to individuals and entities engaging in land transactions within Australia. These regulations specifically target transactions involving enemy aliens, naturalized persons of enemy origin, and subjects of countries in enemy occupation, prohibiting the sale, lease, or encumbrance of land to these individuals without prior written consent from the Attorney-General. The geographic scope of these regulations extends across the Commonwealth of Australia, including its states and territories. The regulations also permit the Attorney-General to declare specific districts where additional restrictions apply, requiring consent for any land transactions with individuals who have connections to enemy aliens. Furthermore, these regulations extend to prohibit transactions on behalf of enemy subjects and require the Attorney-General’s consent for contracts entered into before the regulations' commencement. The regulations are enforced by requiring the submission of evidence to the Registrar of Titles, who may refuse to register instruments that contravene the regulations.

Key Provisions

The National Security (Land Transfer) Regulations (1940) lay out several key provisions concerning the transfer and leasing of land to specific individuals deemed to pose potential security risks during times of conflict. Section 4 prohibits any contractual agreements for the sale of land to an enemy alien, while section 5 extends this prohibition to leases longer than five years and assignments of leases with more than five years remaining. Mortgages or encumbrances on land involving enemy aliens are also forbidden under section 6. Section 7 introduces a requirement for written consent from the Attorney-General for the sale of land to certain individuals, including naturalized persons of enemy origin or subjects of countries in enemy occupation. Similar restrictions and consent requirements are applied to leases (section 8) and mortgages or encumbrances (section 9). These regulations impose specific obligations on parties involved in land transactions. For instance, they require that any contract, agreement, or instrument executed in contravention of these regulations is void and of no effect unless an exception applies (section 13). They also require that any person whose father was or is an enemy alien, a naturalized person of enemy origin, or a subject of a country in enemy occupation, must obtain written consent from the Attorney-General before engaging in certain land transactions (section 14). Furthermore, the regulations mandate that any person acting on behalf of such individuals is also subject to the same restrictions (section 16). Any individual who has acquired land since 3 September 1939 must furnish particulars of this acquisition to the Attorney-General within a specified timeframe (section 18). Failure to comply with these regulations can lead to severe consequences. Contracts and agreements entered into in contravention of these regulations are void unless the Attorney-General declares that the contravention was due to inadvertence and subsequently consents to the transaction (section 13). Additionally, the Registrar of Titles or other relevant officers may require evidence that a transaction does not contravene the regulations before registering any related instrument (section 19). Although the specific penalties for breaches are not detailed in the provided text, the voiding of contracts and the potential refusal to register instruments can have significant legal and financial implications for the parties involved.

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