Opinion Number. 1547

Subject

aliens right of aliens to succeed to real property in australia including territories: right of aliens to hold real property in australia including territories

Key Legislation

Aliens Ordinance 1911 (Papua) s 3: British Nationality and Status of Aliens Act 1914 (U.K.) (4 & 5 Geo. V c. 17) Part III, s 17: Laws Repeal and Adopting Ordinance 1921 (NG) ss 14, 16: Australian Courts Act 1828 (U.K.) (9 Geo. IV c. 83) s 24: Aliens Act 1867(Qld) s 4: Transfer of Land Control Ordinance 1924 (NG): Succession and Wills Law 1913 (NI): Naturalization and Denization Act 1898 (NSW): Laws Repeal and Adopting Ordinance 1922 (Nauru)

Date
Client
The Secretary, Prime Minister

The French High Commission in Syria has recently enacted a decree providing that the right of succession to real property, through intestacy or testamentary disposition only accrues to a foreigner if his national law permits such rights of succession to Syrians or Lebanese and the Dominions Office has requested to be supplied with information so that His Majesty”s Consul-General at Beirut may be in a position to reply to any questions regarding the rights of aliens to succeed to real property in Australia.

The Secretary, Prime Minister”s Department, has forwarded the following memorandum on the subject for advice:

I forward herewith a copy of a despatch received from the Secretary of State for Dominion Affairs regarding a Decree enacted by the High Commission in Syria on the 12th November, 1930, respecting the right of succession to real property.

It is desired that reference to the law on the subject in respect of the Territories of Papua, New Guinea, Norfolk Island and Nauru, should be made when furnishing the Secretary of State with a reply to his enquiry.

So far as Papua is concerned the matter appears to be covered by section 3 of the Aliens Ordinance 1911.

With regard to the remaining Territories, the position is not clear. There would appear to be no law in force in New Guinea, Norfolk Island and Nauru that would prohibit an alien from taking, acquiring, holding and disposing of real property of every description, or that would prevent real property being derived through from or in succession to an alien.

In the absence of any law regarding the right of succession of aliens to real property, it is thought that the matter might require to be decided by Common Law, and the question is accordingly submitted for favour of your consideration and advice as to the reply that should be furnished to the Secretary of State in respect of the Territories mentioned.

Section 17 of the British Nationality and Status of Aliens Act 1914 provides as follows:

Real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from or in succession to an alien in the same manner in all respects as through, from or in succession to a natural-born British subject.

Provided that this section shall not operate so as to—

  1. Confer any right on an alien to hold real property situate out of the United Kingdom; or
  2. Qualify an alien for any office or for any municipal, parliamentary, or other franchises; or
  3. Qualify an alien to be the owner of a British ship; or
  4. Entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him; or
  5. Affect any estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pursuance of any disposition made before the twelfth day of May eighteen hundred and seventy, or in pursuance of any devolution by law on the death of any person dying before that day.

In an Opinion dated the 6th October, 1917, the Solicitor-General advised that Part III of this Act (which contains section 17) applies to the Commonwealth.

For the purposes of the Act Papua and Norfolk Island are treated as part of the Commonwealth (See the First Schedule to the Act). In my opinion, therefore, section 17 applies to these Territories.

Section 17 expressly provides, however, that it shall not operate so as to confer any right on an alien to hold real property situate out of the United Kingdom.

So far as Papua is concerned, section 3 of the Aliens Ordinance 1911 provides that real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as a natural-born British subject. This provision of the law of Papua has not been adopted in New Guinea.

Section 14 of the Laws Repeal and Adopting Ordinance 1921 of New Guinea adopts “those portions of the Acts, Statutes and laws of England that are in force in the State of Queensland at the commencement of this Ordinance, and that are applicable and can be applied to the Territory” to the extent to which they are in force in the said State, and section 16 of the Ordinance adopts “the principles and rules of common law and equity that for the time being are in force in England”, so far as they are applicable to the circumstances of the Territory.

Under the common law, which was in force in England prior to 1870, an alien could not hold real estate (See Halsbury”s Laws of England, volume 1, p. 306).

Section 24 of the Australian Courts Act 1828 provides that all laws and statutes in force within the realm of England at the time of the passing of that Act should (unless inconsistent with that Act or any charter, letters, patents, etc.) be applied in the administration of justice in the courts of New South Wales and Van Diemen”s Land.

In 1828 Queensland formed part of the colony of New South Wales, and it would appear, therefore, that the common law principle has been introduced into Queensland, and is still in force in that State. The fact that aliens cannot hold real property in Queensland is implied by section 4 of the Aliens Act of 1867, which provides that alien residents may hold lands for twenty-one years.

It is not clear, however, that the common law principle is in force in New Guinea. Section 14 of the Laws Repeal and Adopting Ordinance applies “those portions of the Acts, Statutes and laws of England that are in force in the State of Queensland”, but the common law principle has not been in force in England since 1870, and it is doubtful, therefore, whether it is included in the term “those portions of the Acts, Statutes and laws of England that are in force in the State of Queensland”. Moreover section 16 of the Laws Repeal and Adopting Ordinance expressly adopts “the principles and rules of common law and equity that for the time being are in force in England”.

I am inclined to think, therefore, that the common law principle is not in force in New Guinea. Such a construction appears to be in accord with section 16 of the Laws Repeal and Adopting Ordinance, and also with the Transfer of Land Control Ordinance 1924, which provides that no person shall transfer any land without the approval of the Administrator.

Apart from the provisions referred to above, there appears to be no law in force in New Guinea which would prevent an alien succeeding to real property, and I think that the Dominions Office might be informed that the law of New Guinea permits the accession of real property by Syrians and Lebanese. In order to remove any doubt, however, it might be advisable to apply the Aliens Ordinance of Papua to New Guinea.

As to Norfolk Island, the Succession and Wills Law, 1913, provides that, so far as applicable to the circumstances of the island, the laws relating to the succession to and devolution of real and personal estate on death and to inheritance and to wills in force in New South Wales at the time of the coming into force of the law shall have force and effect in Norfolk Island.

The New South Wales law provides that real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject (See Naturalisation and Denisation Act of New South Wales, 1898, section 4).

In my opinion, therefore, an alien may succeed to property in Norfolk Island.

The legal position in Nauru appears to be similar to that in New Guinea (See Laws Repeal and Adopting Ordinance 1922 of Nauru) and the opinion expressed above in regard to New Guinea applies also to Nauru.

[Vol. 26, p, 474]