Opinion Number. 1067

Subject

WAR PRECAUTIONS: ALIENS PROPERTY SEIZED FROM OR SURRENDERED BY ALIENS DURING WAR: EXTENT OF COMMONWEALTH POWER TO DEAL WITH ARTICLES: PROCEDURE TO BE FOLLOWED BY COMMONWEALTH

Key Legislation

WAR PRECAUTIONS ACT 1914: WAR PRECAUTIONS ACT REPEAL ACT 1920: WAR PRECAUTIONS REGULATIONS 1915. regs 4. 25A. 28A, 28AC, 50. 50B. 51, 59: TREATY OF PEACE REGULATIONS, reg. 20: TREATY OF PEACE (AUSTRIA) REGULATIONS, reg. 5: TREATY OF PEACE (BULGARIA) REGULATIONS, reg. 5: ALIENS RESTRICTION ORDER 1915, els 2F, 12, 13, 14, 15, 16

Date
Client
The Secretary, Department of Defence

The Secretary to the Department of Defence has forwarded for advice the following memorandum:

I am requested to inform you that during the war, certain firearms, ammunition, cameras, electrical plant etc. were seized or voluntarily surrendered by alien subjects in Australia under the operation of the War Precautions Regulations.

  1. Some of the articles are held by the District Commandants and the balance by the Police.
  2. Numerous requests are being received for the return of these articles, especially firearms, by the owners, and it is desirable to decide on a policy of disposal.
  3. I would therefore be obliged if you would kindly favour this Department with an opinion as to whether the Defence Department has now any powers regarding the confiscation or further holding of these articles, especially in view of the War Precautions Repeal Act dated 2 December 1920.

The provisions relating expressly to aliens were contained in the Aliens Restriction Order 1915, clauses 2F and 12-16.

Clause 2F provided that an alien should not land in the Commonwealth having in his possession certain articles, and that any such articles so brought in should be forfeited. Any articles so seized became, I think, the property of the Commonwealth and may be dealt with as the Governor-General thinks fit.

Clause 2F also provided that an alien landing in the Commonwealth with any such articles in his possession should be deemed to have imported them in contravention of the provisions of the Customs Act 1901-1914, as though the articles in question were prohibited by a proclamation issued under the authority of section 52 of that Act.

Any articles so imported were not, however forfeited under the Customs Act so as to be dealt with under that Act, but the forfeiture was effected in pursuance of clause 2F, and must therefore, I think, be dealt with as mentioned above.

Clause 12 prohibited the possession by an alien enemy of firearms, or other weapons, ammunition or explosives, suitable for use in war.

Clauses 13 and 14 prohibited the possession by an alien enemy, without the written permission of the senior officer of police of the district in which the alien enemy resided, of certain other articles, including firearms not suitable for use in war, photographic materials and motor cars.

Clause 15 gave power to seize any articles held in contravention of the clauses 12, 13 or 14 but no power was given to dispose of, or otherwise deal with, the articles seized.

By clause 16 power was given to District Commandants to seize any copies of any newspaper published in the language of an enemy country for circulation among alien enemies, and also any type or other plant used, or capable of being used, for the printing or production of the newspaper, and to deal with any such articles seized in such manner as he might direct.

There were also various provisions of the War Precautions Regulations 1915 under which the property of aliens may have been seized.

Regulation 4 gave power to the competent naval or military authority to take possession of any arms, ammunition etc. or warlike stores.

Regulation 25A gave power to the officer commanding an internment camp to seize any letter, newspaper or other printed matter which any person was conveying to an internee in contravention of the regulation.

Regulation 28A, relating to press censorship, and regulation 28AC, relating to injurious printed matter, gave similar powers, as regards seizure and dealing with type and other plant, to those given in clause 16 of the Aliens Restriction Order.

Regulation 50 gave power in certain cases to enter buildings etc. and to seize and destroy or otherwise dispose of, any articles found therein which, amongst other things, were being kept or used in contravention of the Regulations.

Regulation 50B gave power to search persons and seize any article the possession of which gave grounds for suspicion that the person had acted or was acting or was about to act in a manner prejudicial to the public safety or the defence of the Commonwealth.

Regulation 51 gave power to search vehicles travelling along any public highway and to seize anything found therein which was suspected of being used or intended to be used for any purpose, or in any way, prejudicial to the public safety or the defence of the Commonwealth.

Regulation 59 provided that where a person was found by a court to be guilty of an offence against the Act, the court might order that any goods, in respect of which the offence had been committed, be forfeited.

Subject to the operation of the Regulations (mentioned below) giving effect to the various Treaties of Peace, the only cases in which there appears to be no doubt that the Commonwealth now has power to deal with goods coming into its possession in pursuance of any of the abovementioned orders or regulations, are those in which articles were forfeited under clause 2F of the Aliens Restriction Order or regulation 59 of the War Precautions Regulations.

In all other cases power was given either to seize without power to dispose of, or otherwise deal with, the articles seized, or to seize and destroy or dispose of, or otherwise deal with, the articles seized.

Where the power to seize only was given the articles seized did not, I think, become the property of the Commonwealth, but were merely held by the Commonwealth for or on behalf of the persons from whom they were seized. Where the power to destroy, dispose of, or otherwise deal with the articles was given in addition to the power to seize, that additional power cannot, in my opinion, in view of the repeal of the War Precautions Act, be now exercised, and the articles are, I think, in the same category as articles seized under regulations or orders which conferred a power of seizure only.

Where aliens have voluntarily surrendered to the Commonwealth articles which they were not permitted to bring into the Commonwealth or to retain possession of, the power of the Commonwealth to deal with those articles depends, in my opinion, on the terms of the surrender. Presumably only the possession of the articles was surrendered, in which case, the property in the articles would not pass to the Commonwealth and the Commonwealth would merely hold the articles for the aliens who surrendered them.

Regard must, however, be had to the provisions of regulation 20 of the Treaty of Peace Regulations (S.R. 1920, No. 25, as amended by S.R. 1920, No. 235 and by S. R. 1921, Nos 13,46,78 and 85), regulation 5 of the Treaty of Peace (Austria) Regulations (S.R. 1921, No. 45) and regulation 5 of the Treaty of Peace (Bulgaria) Regulations (S.R. 1921, No. 63).

Regulation 20 of the Treaty of Peace Regulations provides inter alia that all property, rights and interests within the Commonwealth or any Territory under the authority of the Commonwealth belonging to German nationals at the date when the Treaty with Germany comes into force and the net proceeds of their sale, liquidation or other dealings therewith are charged with certain payments. The regulation also makes provision for the vesting in the Public Trustee of any property, rights and interests so charged.

The Treaty of Peace (Austria) Regulations and the Treaty of Peace (Bulgaria) Regulations make corresponding provision as regards Austrian and Bulgarian nationals respectively.

In my opinion, therefore, where any articles have been seized from German, Austrian or Bulgarian nationals in pursuance of the War Precautions Regulations

or the Aliens Restriction Order, or voluntarily surrendered by any such national, particulars of the articles held should be furnished to the Public Trustee.

Similar procedure should, I think, be followed as regards Hungarian or Turkish nationals.

Where, however, the articles have been seized from, or voluntarily surrendered by, friendly aliens the articles should, I think, be returned to their owners.

[Vol. 17, p. 300]