Real Property (Foreign Governments) Act 1951

Foreign State. The definition in section 2 is deliberately broad. It means any State other than Western Australia and includes a sovereign State, a State of the Commonwealth (for example, New South Wales or Victoria), a State that forms part of any other federal State (such as Texas or Bavaria), and any State under the dominion or protection of His Majesty or of any other State. This captures dependencies, protectorates and territories. The drafting uses the present tense reference to ‘His Majesty’, which is preserved from the original 1951 text, but the definition remains functional: any territorial polity that is not the State of Western Australia qualifies, provided it is a ‘State’ in the sense of a recognised governmental entity. The Act does not require that Australia has diplomatic relations with that State, nor does it exclude states whose sovereignty is disputed. However, the consent mechanism under section 4 gives the Western Australian Minister a practical gatekeeping role.

Land. Section 2 defines land as ‘any estate or interest in land’. This covers freehold, leasehold, easements, profits à prendre, mortgages and any other proprietary interest recognised under Western Australian property law. It does not exclude minerals or water rights unless the specific grant or limitation in the instrument or other legislation provides otherwise. The definition aligns with the ordinary Torrens definition and ensures that the capacity conferred by section 3 extends to the full range of interests.

Representative. Section 2 defines ‘representative’ as a diplomatic representative, consul or consular officer. This category is narrower than ‘any person authorised by the foreign government’. Section 5(1) permits execution of instruments by a representative of that Government resident within the Commonwealth. The word ‘representative’ in that subsection is not capitalised, but it is reasonable to read it as referring to the defined term because the subsection immediately follows the definitions and the certificate mechanism in section 5(2) uses the same term. The Western Australian Minister may certify that a person named in an instrument is a representative of a foreign Government and is resident in the Commonwealth. That certificate is conclusive evidence for the Registrar of Titles or Registrar of Deeds and Transfers. This avoids the need for the foreign government to produce full powers of attorney or letters of credence each time it deals with land.

Area limit. The default maximum holding under section 3(1) is two hectares in the aggregate for each foreign Government. The limit applies to the total area of all land owned by that Government in Western Australia, not to each parcel individually. Any acquisition that would cause the aggregate to exceed two hectares requires the approval of Parliament. The Act does not specify the form of parliamentary approval (resolution, Act or other). The special exception for the United States under section 3(3) allows the Government of the United States to own leasehold land in the Exmouth townsite up to 40.5 hectares in the aggregate. That subsection cross-references the Land Administration Act 1997 which governs the creation and management of the Exmouth townsite. The exception is limited to a ‘portion of the land that is constituted the townsite of Exmouth’ and only to an ‘estate of leasehold’. The United States cannot hold freehold beyond the two hectare cap, nor can any other foreign government claim the larger limit.

Consent. Section 4 requires that the appropriate Minister of the Crown for Western Australia must consent to the transaction by endorsing a statement on the instrument. Without that consent, the instrument has no effect and cannot be registered, deposited or enrolled under any Act. The consent is a condition precedent to the validity of the transaction. The section does not state any criteria the Minister must apply, nor does it provide for a right of review if consent is refused.

The primary class of persons affected by the Act is the government of any foreign State, as defined, and any minister or member of that government. These entities are expressly given the capacity to own land, be registered as owners, and deal with land in Western Australia. The Act also affects diplomatic representatives, consuls and consular officers of those governments because they are the authorised signatories for instruments relating to land. The Western Australian Minister designated as the ‘appropriate Minister’ for the purposes of sections 4 and 5 has a statutory role: he or she must decide whether to consent to each transaction and must issue a certificate of representative status if satisfied of the facts when requested by or on behalf of a foreign State. The Registrar of Titles and the Registrar of Deeds and Transfers are affected because they must accept the Minister’s certificate as conclusive evidence and must refuse to register any instrument that lacks the required consent statement. Parliament is indirectly affected because any acquisition of land that would result in a foreign government owning more than two hectares in the aggregate requires parliamentary approval, which may involve legislative or procedural action. The Act also affects private vendors, lessors and mortgagees who deal with a foreign government. They must ensure that the instrument of transfer or lease bears the Minister’s consent, otherwise the transaction will be void and unregistrable. This imposes a due diligence burden on conveyancers and solicitors acting for the private party. The Land Administration Act 1997 is relevant for the Exmouth townsite exception, and the responsible Minister under that Act may also be affected if the land is Crown land. The Act does not directly affect local government or planning authorities, but because the consent requirement is separate from any planning approval, foreign government landholdings remain subject to local planning schemes and rates.

Rights of foreign governments. Section 3(1) gives the Government of a foreign State, and a minister or member of that Government, the right to own land, to be registered as owner, and to convey, transfer, mortgage, demise and otherwise dispose of the land. Section 6(1) deems the Government or minister to be a body corporate for the purposes of owning and dealing with land, which gives them the legal personality necessary to hold title in their own name without needing to incorporate a separate entity. Section 3(1) is expressed to be ‘subject to the provisions of this Act’, meaning the right is conditioned on compliance with the area limit and consent requirement.

Duty to obtain consent. Section 4 imposes a mandatory obligation: no instrument granting, conveying, transferring or demising land to a foreign government or its minister has any effect or may be registered unless it contains or is endorsed with a statement of consent by the appropriate Western Australian Minister. This duty falls on the parties to the transaction. The section does not impose an obligation on the Minister to grant or refuse consent within any timeframe. The Minister may refuse consent without giving reasons, and the Act provides no avenue for review or appeal. In practice, the risk of invalidity means that private parties will insist on consent being obtained as a condition precedent.

Duty of the Minister to issue a certificate. Under section 5(3), the appropriate Western Australian Minister shall give a certificate certifying that a person is a representative of a foreign government and is resident in the Commonwealth, if requested by or on behalf of a foreign State and if satisfied as to the facts. The word ‘shall’ suggests a mandatory duty once the Minister is satisfied. However, the Minister retains discretion to determine whether the facts warrant certification. Once issued, the certificate is conclusive evidence for the Registrar under section 5(2). The certificate may be contained in or endorsed on the instrument.

Right of foreign governments to execute instruments by representative. Section 5(1) permits execution on behalf of a foreign government or its minister by a representative of that government resident within the Commonwealth. This avoids the need for the foreign head of state or senior minister to travel to Western Australia to sign documents. The representative need not be a diplomatic representative already accredited to Australia; it can be any consul or consular officer. The Minister’s certificate then confirms that person’s status.

Deemed body corporate effect. Section 6(1) deems the foreign government or minister to be a body corporate for the purposes of owning and dealing with land. This means the government can hold land in its own name without being a natural person or a corporation. Section 6(2) provides that a reference to a government in an instrument is deemed to be a reference to the persons for the time being constituting that government, and a reference to a minister is deemed to be a reference to the person for the time being holding or acting in that office. This ensures that changes in government personnel do not affect the validity of registered titles.

The Act contains no criminal penalty provisions. There are no fines, imprisonment terms or infringement notices for breaching its requirements. The enforcement mechanism is entirely civil and operates through the invalidity of instruments that do not comply. Under section 4, an instrument that lacks the required consent statement ‘shall not have any effect, or be registered, deposited, or enrolled pursuant to any Act’. This means the transaction is void ab initio from the perspective of property law. The vendor, lessor or mortgagee cannot pass title, and the foreign government does not acquire any estate or interest in the land. If the instrument is registered in error, the Registrar may be able to correct the register under the Transfer of Land Act 1893 or equivalent, but the Act itself does not create a statutory right to compensation or rectification.

The area limit of two hectares carries no express penalty. If a foreign government acquires land in excess of that limit without parliamentary approval, the acquisition would be in breach of section 3(1) because the capacity conferred is limited to land not exceeding two hectares in the aggregate. The instrument would also require consent under section 4, which the Minister may refuse. If the Minister inadvertently consents to an acquisition that exceeds the limit, the question would arise whether the consent is ultra vires. The Act does not say that exceeding the limit invalidates the transaction, but because the capacity is itself limited, the foreign government arguably lacks the legal capacity to hold the excess area. That could lead to a resulting trust in favour of the transferor or, if the land is registered, a potential application to the Supreme Court to set aside the registration.

The Act does not create a right for third parties to bring proceedings for breach. Enforcement rests on the Registrar’s duty to refuse registration of non-complying instruments, and on the parties’ own interest in ensuring valid title. If a dispute arises over the validity of an instrument, a party may seek declaratory relief from the Supreme Court of Western Australia. The conclusive evidence provision in section 5(2) prevents the Registrar from challenging the Minister’s certificate, but does not prevent a court from looking behind the certificate if fraud or jurisdictional error is alleged.

The Act operates within the broader framework of Western Australian property law, primarily the Transfer of Land Act 1893 (the Torrens system) and the general law of conveyancing. Section 4 explicitly prevents registration under ‘any Act’ if the consent statement is absent, so it overrides the normal registration requirements that would otherwise allow a transfer to be registered upon presentation of a proper instrument. The Act does not amend the Transfer of Land Act 1893; it imposes an additional condition precedent beyond the usual requirements for a registrable instrument.

Section 3(3) directly incorporates the Land Administration Act 1997 by reference to the Exmouth townsite. The land that constitutes the townsite is defined under that Act, and the 40.5 hectare leasehold exception applies only to ‘portion of the land that is constituted the townsite of Exmouth under the provisions of the Land Administration Act 1997’. Any amendment to the boundaries of the townsite under the Land Administration Act 1997 would affect the scope of the exception.

The Act does not interact with the Commonwealth Foreign Acquisitions and Takeovers Act 1975. That Commonwealth Act regulates foreign ownership of Australian land and requires approval from the Foreign Investment Review Board for certain acquisitions, including those by foreign governments. The state Act does not duplicate or override those requirements. A foreign government acquiring land in Western Australia must comply with both the state consent process under this Act and any applicable Commonwealth foreign investment approval. The two regimes are cumulative.

The Act does not address the operation of the Diplomatic Privileges and Immunities Act 1967 (Cth) or the Consular Privileges and Immunities Act 1972 (Cth). Immunity from suit does not affect the requirement for consent or the ability to hold title. However, if a diplomatic or consular property is used for official purposes, it may be exempt from state taxes or rates under international law, but that is governed by separate legislation.

The Act does not interact with native title or the Native Title Act 1993 (Cth). Any grant of land to a foreign government would need to be valid under the Racial Discrimination Act 1975 (Cth) and the future act regime. The state Act does not create any exemption from those obligations.

The Act does not address planning or development approvals. A foreign government that owns land must still obtain development approval under the Planning and Development Act 2005 (WA) before building or changing the use of the land.

The Act was originally enacted as Act No. 3 of 1951 and received assent on 13 November 1951. It has been amended five times, as recorded in the compilation table.

The first amendment was the Real Property (Foreign Governments) Act Amendment Act 1964 (No. 55 of 1964). This amendment inserted the current section 3(3), which created the special exception for the Government of the United States of America to hold leasehold land in the Exmouth townsite up to 40.5 hectares. The timing suggests the amendment was linked to the establishment of the Harold E. Holt Naval Communication Station at Exmouth under the Australia-United States agreement. The original 1951 Act had no such exception and limited all foreign governments to the two hectare cap.

The second amendment was by section 4 of the Statutes (Repeals and Minor Amendments) Act 1994 (No. 73 of 1994). The compilation table does not specify the exact nature of the amendment, but it is listed as modifying section 3. The 1994 Act was an omnibus statute that made minor amendments and repeals across many Acts.

The third amendment was by section 141 of the Acts Amendment (Land Administration) Act 1997 (No. 31 of 1997), which commenced on 30 March 1998. This amendment updated the reference in section 3(3) from the former Land Act 1933 to the Land Administration Act 1997, reflecting the consolidation of land administration law.

The fourth amendment was by section 108 of the Statutes (Repeals and Miscellaneous Amendments) Act 2009 (No. 8 of 2009), which commenced on 22 May 2009. This amendment likely made minor textual updates.

The fifth amendment was by section 16 of the Statutes (Repeals and Minor Amendments) Act 2011 (No. 47 of 2011), which commenced on 26 October 2011. That amendment updated section 5, changing references from the former ‘Minister for Lands’ to the more general ‘appropriate Minister of the Crown for the State of Western Australia’. This reflected machinery-of-government changes.

The Act was reprinted as at 16 May 2003 (Reprint 1), incorporating all amendments up to and including the 1997 amendment.

The Act has no reported litigation in any published decision of the Supreme Court of Western Australia, the Court of Appeal, the High Court of Australia, or any intermediate appellate court. The compilation notes do not refer to any cases. The absence of case law suggests that the Act has operated without significant dispute since 1951. This may be because the Act is straightforward in its requirements and the number of transactions involving foreign governments in Western Australia is small. The consent requirement gives the Minister a clear gatekeeping role that avoids litigation by preventing non-compliant instruments from ever being presented for registration. The conclusive evidence provision in section 5(2) also reduces the scope for factual disputes about the status of representatives.

Potential areas of future litigation could include the interpretation of the definition of ‘foreign State’, particularly whether a non-recognised or partially recognised entity qualifies. Another area could be whether the area limit applies per government or per instrument if multiple ministries or departments of the same foreign government each purport to own separate parcels. The Act uses the phrase ‘the Government of a foreign State’ in the singular, so it likely refers to the single legal entity of that State’s government, meaning all land held by any department or ministry would be aggregated for the two hectare cap. That issue has not been tested.

A third potential area is the meaning of ‘appropriate Minister’ in sections 4 and 5. The Act does not define the term, leaving it to be determined by the Administrative Arrangements Order or by custom. If a transaction is consented to by a Minister who is not the appropriate Minister for the purpose, the instrument could be invalid. A court might apply a de facto officer doctrine or hold that the consent is still effective if the Minister was held out as having authority. The Act provides no mechanism to challenge a consent or certificate, but judicial review under the Administrative Decisions (Judicial Review) Act 1977 (WA) may be available if the Minister acts unreasonably or for an improper purpose.

No defined ‘appropriate Minister’. The Act uses the phrase ‘appropriate Minister of the Crown for the State of Western Australia’ in sections 4 and 5 but does not specify which portfolio. The responsible Minister may change over time. A practitioner relying on section 4 must verify the current Administrative Arrangements Order to identify the correct Minister. If the wrong Minister consents, the consent may be invalid and the instrument void.

Area cap is aggregate, not per transaction. Section 3(1) limits land to ‘not to exceed an area of 2 hectares in the aggregate’. This means a foreign government cannot hold multiple small parcels that together exceed two hectares unless Parliament approves. The Act does not state whether the aggregate is measured at the time of acquisition or at any time. If a foreign government already holds 1.9 hectares and acquires a 0.2 hectare block, it breaches the cap. There is no provision for reduction or disposal of existing holdings to make room for new acquisitions.

Consent is a condition precedent, not a post-facto approval. Section 4 requires that the instrument ‘contains or has endorsed thereon’ the consent statement. The consent must be on the instrument itself, not a separate letter or document. The Registrar cannot accept a separate consent letter. The instrument must be presented to the Minister before execution or at the time of execution.

No provision for revocation of consent. The Act does not say whether the Minister may revoke consent after it has been given but before registration. If the Minister changes their mind, the instrument may become invalid despite containing the statement. The safer approach is to ensure registration occurs promptly after consent is obtained.

Parliamentary approval required for over two hectares. A common misconception is that Minister consent under section 4 is the only requirement. Section 3(1) says the capability to own land is limited to two hectares ‘without the approval of Parliament’. If a foreign government needs more than two hectares, it must obtain parliamentary approval, which is a separate and more onerous process. The consent requirement under section 4 does not replace that approval.

The Exmouth exception is leasehold only. Section 3(3) applies only to ‘an estate of leasehold in land’. The United States may own leasehold up to 40.5 hectares in the Exmouth townsite, but cannot own freehold beyond the standard two hectare cap. If the lease is for a term with an option to purchase, the purchase would convert the interest to freehold and the larger cap would no longer apply.

Deemed body corporate is not a real corporation. Section 6 deems the foreign government to be a body corporate for the purposes of the Act, but it does not create a legal entity separate from the state. This means the foreign government is not subject to the Corporations Act 2001 (Cth) and cannot be wound up. However, it also means the government may have difficulty being sued in its own name for breaches of covenant or strata obligations, depending on any available sovereign immunity.

A party intending to transfer or lease land to a foreign government in Western Australia should follow these steps.

First, confirm that the intended transferee qualifies as a foreign State under section 2. This includes interstate governments (e.g., the Government of New South Wales) and other federal states, as well as sovereign states. If the entity is a subordinate agency or instrumentality that is not the government itself, separate advice is needed because the Act may not extend to statutory corporations or state-owned enterprises.

Second, calculate the total area of land the foreign government already holds in Western Australia. If that area, combined with the proposed acquisition, would exceed two hectares, the transaction cannot proceed unless Parliament gives its approval. If the transaction is for leasehold land in the Exmouth townsite, the United States may rely on the 40.5 hectare cap, but other foreign governments cannot.

Third, prepare the instrument of transfer, lease, mortgage or other dealing. The instrument must describe the Government of the foreign State using the formula in section 3(2): ‘The Government of [name of State]’. If a minister or member is the named party, use the official title including the name of the State. The instrument must be executed by a representative as defined - a diplomatic representative, consul or consular officer resident within the Commonwealth. Execution must occur after the representative’s status is verified. To avoid later disputes, obtain a certificate from the appropriate Western Australian Minister under section 5(2) certifying that the representative is indeed a representative and is resident in the Commonwealth. The request for the certificate should be made to the Minister. The Minister is obliged to give the certificate if satisfied of the facts. The certificate should be endorsed on or contained in the instrument.

Fourth, obtain the consent of the appropriate Western Australian Minister under section 4. This requires a written statement from the Minister consenting to the transaction, either directly on the instrument or endorsed on it. The consent statement must refer to the specific transaction. The parties should present the instrument to the Minister together with supporting information about the foreign government, the land, and the purpose of the acquisition. The Minister may require further information. There is no prescribed form; a simple signed statement suffices.

Fifth, ensure that the instrument, bearing both the consent statement and any representative certificate, is lodged for registration with the Registrar of Titles (if the land is under the Transfer of Land Act 1893) or with the Registrar of Deeds and Transfers (if the land is under the general law). The Registrar must accept the Minister’s certificate as conclusive evidence of the representative’s status and must not refuse registration based on the foreign government’s capacity, because that capacity is conferred by section 3.

Sixth, if the transaction involves the Exmouth townsite and the United States is the foreign government, confirm that the land is within the portion of the townsite as defined under the Land Administration Act 1997 and that the interest is leasehold only. The transaction does not require parliamentary approval if it stays within the 40.5 hectare cap, but the Minister consent under section 4 is still required because section 4 applies to all instruments granting land to a foreign government, not only those under the standard cap.