ENEMY PROPERTY WHETHER ENEMY NATIONAL CAN BORROW AGAINST LIFE INSURANCE POLICY ISSUED IN AUSTRALIA: WHETHER POLICIES HELD BY ENEMY NATIONALS CONSTITUTE ENEMY PROPERTY: WHETHER POSITION IS AFFECTED BY INTERNMENT OF POLICYHOLDER
TREATY OF PEACE BETWEEN THE ALLIED AND ASSOCIATED POWERS AND GERMANY (1919), Art. 297: TREATY OF PEACE REGULATIONS, reg. 20 (1), (2)
The Acting Comptroller-General of Customs and Public Trustee has forwarded for advice a letter received by him from the Colonial Mutual Life Assurance Society Limited.
The letter, omitting formal parts, is as follows:
A policyholder of this Society, by name A.B., is an internee at the Internment Camp, Narrow Neck, Auckland, New Zealand. His policy is registered on the books of the New South Wales Branch of this Society, and would therefore, I presume, rank as property in the Commonwealth.
According to his statement he has been granted permission to return to the South Sea Islands, and is in want of money. He is desirous of effecting a loan on his policy, and I shall be glad if you will advise me if there is any objection to granting this.
For future guidance, I should also like to know if the fact of his internment outside Australia affects the position in any way, and if your ruling would also apply to an internee in one of the Australian States. Would there be any distinction drawn between an enemy subject (unnaturalized in this country) and one who had been naturalized?
The policy having been issued in Australia and being, presumably, payable therein, is, in my opinion, property situate within the Commonwealth and is, therefore, property which is charged under regulation 20 of the Treaty of Peace Regulations (see Dicey, Conflict of Laws, 2nd edn, p. 310).(1)
As regards the question raised in the second paragraph of the letter, sub-regulation (2) of regulation 20 of the Treaty of Peace Regulations makes it an offence for any person to deal, without the consent of the Public Trustee, with any property charged under regulation 20. A loan cannot, therefore, be effected on the policy without the consent of the Public Trustee.
As regards the question as to whether the internment of Mr B. in New Zealand affects the position, I am clearly of opinion that the internment, in Australia or elsewhere, of the owner of property does not affect the application of regulation 20 of the Treaty of Peace Regulations to that property.
[Vol. 16, p. 406]
(1) However, in a short opinion given on 8 July 1920, in response to a request from the Comptroller-General of Customs and Public Trustee for advice concerning another policyholder’s policy, Sir Robert Garran, as Secretary, Attorney-General’s Department, stated:
‘ . I agree with the opinion recently received [on or after 10 June 1920] from the Secretary of State for the Colonies that life assurances of German nationals are not property for retention by the Commonwealth under Article 297 of the Treaty of Peace between the Allied and Associated Powers and Germany, and that the surrender value of the policies in question may be paid over to the persons entitled thereto’.