Opinion Number. 1079

Subject

ENEMY PROPERTY ONUS OF PROVING THAT A PERSON, FIRM OR COMPANY IS OF GERMAN NATIONALITY: METHOD OF TAKING EVIDENCE IN AUSTRALIA ON NATIONALITY FOR USE IN NEW GUINEA

Key Legislation

EXPROPRIATION ORDINANCE 1920 (N.G.), s. 3: TREATY OF PEACE BETWEEN THE ALLIED AND ASSOCIATED POWERS AND GERMANY (1919), Art. 297

Date
Client
The Secretary, Prime Minister's Department

The Secretary, Prime Minister's Department, has forwarded me the following memorandum for advice:

On 14.3.[2]1, two brothers George J., and George Rudolph J., the latter known as Rudolph J., each made a statutory declaration in Sydney that he had-

  1. been born in Australia,
  2. retained his Australian citizenship,
  3. never become or attempted to become a naturalized subject of any power, and later on applied to the Prime Minister for the full enjoyment of their New Guinea possessions and the handling and disposing of their moneys held in trust by the Administrator of New Guinea.

Copies of what are stated to be the birth certificates of the two men in question showing them to have been born in Australia were also submitted. i
At a later stage, a copy of an agreement was forwarded to the Prime Minister's Department under which- |

  1. certain lands in New Guinea owned by the brothers J. were leased to one A.B., a German national;
  2. the brothers were entitled to cancel the agreement without giving notice in the event of A.B. not attending to the plantation in the proper way.

The agreement is stated to have been made at a date (16.7.19) when such transactions as that covered by the agreement were not prohibited.

Mr L.L. Cunningham M.P. was advised by the Secretary Prime Minister's Department on 15 April 1921, that 'no action will be taken to prejudice the claim of Messrs J. without the fullest inquiries being made', and, on the same date, the agent of the J. brothers was informed that the papers relating to the case were 'being handed to the Special Magistrate' appointed to hear such claims in the Territory for the purpose of inquiry which he will conduct on his arrival in Rabaul. The papers appear to have been forwarded to the Special Magistrate, as promised, through the Administrator.

Special Magistrate E. Brown, Rabaul, was urged by radio on 17.5.21 and 3.6.21 to expedite the hearing of the case and to advise the probable date of the hearing. In the meantime R. (G.R.) J. further protested against his treatment.

The Administrator, Rabaul, replying to the radios to Special Magistrate E. Brown, now states that:

  1. the late Administrator permitted J. (presumably referring to G.R. J.) to proceed to Australia on 6 months furlough and return, with an allowance-apparently out of J.'s moneys-of £45 per month;
  2. the late Administrator considered G.R. J. a German national but had doubts relative to the nationality of George 'who fought against us';
  3. the estate of J. had not been expropriated but that he (G.R. J.) is 'jointly interested in estate with brother George and will be prescribed (property expropriated) if he should attempt to take advantage of Griffiths' consideration and declines to ask Magistrate to define nationality'.

The following facts stand out:

  1. the Administrator is throwing the onus of proof of nationality on the persons concerning whose nationality he is in doubt, and
  2. the Administrator is prepared to expropriate the property of a person refusing, perhaps for some sound reason such as expense, to prove his nationality.

If the Administrator persists in his present attitude he will create trouble for the Commonwealth. The principle for his guidance should be that the onus of proof of nationality is on the Commonwealth, and this has been defined by the Crown Solicitor on more than one occasion when he urged the Public Trustee to furnish more proof of the nationality of a supposed German before preparing the vesting order.

In the present case, assuming false declarations and false copies of documents have not been submitted, two British subjects are in danger of having their property in New Guinea expropriated if they do not proceed to New Guinea to prove their nationality. The Administrator may have what in his opinion is strong evidence in support of the belief that the men are German nationals, but that would not warrant the threat to expropriate the men's properties if they do not return to Rabaul and 'appeal'. Surely, if he wants evidence of their nationality he can secure it by means of certified copies of papers sent on to him from Australia.

It is suggested that-

  1. the Administrator be instructed by radio that he is not to expropriate or otherwise alienate the property of any person without being reasonably sure that such person is a German national, and advised that strong proof exists that the brothers J. are Australians;
  2. the brothers J. be informed that their plantations have not been expropriated and that the Commonwealth accepts no responsibility for the depreciation of their plantations by reason of the prescribing of B. as a German national;
  3. the brothers J. be further informed that the expropriation of the interests of B. has the effect only of transferring such interests to the Custodian of Enemy Property and that in the event of the terms of the lease not being complied with the brothers J. have still the same rights as though the interests of B. had never been expropriated with the single exception that the Custodian of Enemy Property takes the place of B. in the contract.

The fact of George J. having 'fought against us' is not sufficient to warrant his estate being expropriated.

Arising out of the above, the Secretary, Prime Minister's Department, asks the following questions:

  1. Whether the onus of proof of nationality is on the Administrator or the person whose property is about to be, or has been, expropriated;
  2. Whether the effect of the expropriation of the property rights and interests in New Guinea of A.B. is to vest in the Custodian of Enemy Property only such property rights and interests as were owned by B. and subject to such disabilities and penalties as existed prior to the expropriation;
  3. What ready means exist whereby evidence can be taken in Australia as to the nationality of a person in the Commonwealth owning property in New Guinea who does not wish to incur the expense of going to Rabaul to prove his nationality or appeal against his expropriation, if already effected.

Section 3 of the Ordinance is as follows:

This Ordinance shall apply to-

  1. any firm or company (in this Ordinance referred to as a 'prescribed company') which the Administrator by notice in writing under his hand, declares to be, in his opinion, managed or controlled, directly or indirectly by or under the influence of, or carried on wholly or mainly for the benefit or on behalf of, subjects of Germany or persons resident or carrying on business in Germany;
  2. any person (in this Ordinance referred to as a 'prescribed national') whom the Administrator, by notice in writing under his hand, declares to be in his opinion, a German national; and
  3. the estate (in this Ordinance referred to as a 'prescribed estate') of a deceased German national which the Administrator, by notice in writing under his hand, declares to be an estate to which this Ordinance applies.

Upon the publication or service of a notice issued under section 3, the property of the firm, company, person, or estate affected vests in the Custodian of Expropriated Property.

Expropriation is a right conferred by Article 297 of the Versailles Treaty which provides, inter alia, that the Allied and Associated Powers reserve the right to retain and liquidate all property rights and interests belonging at the date of the coming into force of the Treaty to German nationals or companies controlled by them within their territories, possessions, protectorates, including territories ceded to them by the Treaty.

Having regard to the authority from which the power of expropriation flows, it is, in my opinion, necessary that the Administrator should, before prescribing any person, firm or company, satisfy himself, beyond reasonable doubt, that the person, firm or company is of German nationality.

The Ordinance contains no power whereby the Administrator may require any person to satisfy him that he is not a person liable to prescription under the Ordinance.

The suggestion that if J. should decline to ask the magistrate to define his nationality he will be prescribed, indicates what is, in my opinion, an improper course.

The onus of proving that a person's nationality is not such as renders him liable to prescription does not generally rest on that person. If, however, the Administrator is satisfied beyond reasonable doubt that a person is of German nationality and has acted on that opinion, in any proceedings taken by that person to establish the non-application of the Ordinance to him, the onus of proving non-German nationality would be upon that person.

The expropriation of the property of A.B. vests in the Custodian only such property, rights and interests in New Guinea as were owned by B. on 10 January 1920. The obligations and liabilities of B. under his agreement with J. Bros (e.g. cancellation of agreement for neglect of plantation) would, I think, pass to the Custodian.

With regard to question (3)-it is suggested that an affidavit taken in the Commonwealth and supported by any available official papers appears to be the

best means of supplying evidence to a court in New Guinea without the attendance of the person affected.

[Vol. 17, p. 353]