The Comptroller-General of Customs forwards the following memorandum for advice:

Attention is invited to the attached copy of wire dated 15.7.1921 addressed from this Office to the Collector of Customs, Sydney, and of his reply of the 16th idem.

2. A decision as to what is Dr Here's present nationality, if any, is urgently required in order that, if necessary, consideration may be given to the question whether his case should be submitted to the Loyalty Commission now sitting.
3. The favour of advice is therefore requested as to whether, for the purposes of regulation 20 of the Treaty of Peace Regulations (Statutory Rule 1920 No.25), Dr Herz should be regarded as a German national.

The attached telegrams referred to are as follows:

Wire from Public Trustee to Collector of Customs, Sydney, 15.7.1921:

Max Herz orthopaedic surgeon Sydney was naturalized August 1914 interned 1915 and denaturalized 1919. Desired to ascertain his present nationality. Please ask him whether he has been denationalised by Germany and if so to produce evidence thereof. Wire reply.

Wire from Collector of Customs, Sydney, to Public Trustee, Melbourne, 16.7.1921:

Your telegram 15 July. Max Herz recorded Attorney-General's Department as German national pursuant his denaturalization 1919. Herz states he has not received

notice of denationalisation by Germany but contends he automatically became denationalised by Germany on naturalization here 1914. He contends further that not having registered at a Consulate since leaving Germany over ten years ago he has by German law forfeited German rights.

In the case of Stoeck v. Public Trustee [1921] 2 Ch.67 heard in the Chancery Division of the High Court of Justice in England, on 28 April 1921, Mr Justice Russell decided that the words 'German national' in the Imperial Treaty of Peace Order and Section IV of Part X of the Treaty of Peace must be determined by the municipal law of Germany.

The German Imperial and State Nationality Law of 22 July 1913 provides, inter alia, that German nationality is lost by the acquisition of a foreign nationality (section 17).

Section 25 of the same law is as follows:

A German who is neither domiciled nor permanently resident in Germany ('im Inland') loses nationality on the acquisition of a foreign nationality if the latter is acquired on his application or on the application of the husband (in the case of a married woman) or legal guardian (in the case of a ward). A married woman or ward, however, only loses nationality if the conditions are fulfilled under which a discharge could be applied for in accordance with ss. 18, 19.

A person does not lose his nationality if, before acquiring a foreign nationality, he has applied for and received the written permission of the competent authorities of his home State to retain his nationality. Before the grant of such permission, the German consul is to be consulted.

With the assent of the Federal Council the Imperial Chancellor may order that persons who wish to acquire nationality in a particular foreign State may be refused the permission mentioned in paragraph 2.

The question, then, is whether the naturalization of Dr Herz under the Commonwealth Naturalization Act 1903 is to be regarded as the acquisition of a foreign nationality within the meaning of the above section. I assume, for the purposes of this opinion, that Dr Herz applied for such naturalization, and that the Commonwealth is not able to prove that he applied for and received from Germany permission to retain his German nationality.

In the case of In re Bourgoise 41 Ch.D. 310, Kay J. decided that a certificate of naturalization granted under the Imperial Naturalization Act 1870 effects only a partial, not a complete, naturalization, so that a Frenchman in taking out such a certificate did not thereby lose his status as a French subject, since by French law he could not be completely naturalized in a foreign country except by the authority of the French Government. Kay J. was of opinion that the matter depended on the French Code Civil, Article 17 of which provided in effect that the quality of a French subject should be lost, first, by naturalization acquired in a foreign country. He held that this must mean an absolute naturalization, not a qualified one, and that as Bourgoise had not obtained permission of the French Government his naturalization could not be regarded as being absolute. He also relied on an Imperial Decree of 26 August 1811, enacting that no Frenchman can be naturalized in a foreign country without an authority. The case went to the Court of Appeal [at p. 318], which supported the judgment of Kay J., on other grounds, and treated the question of nationality as a difficult one which it was unnecessary to decide.

It is clear from R. v. Francis; Ex parte Markwald [1918] 1 K.B. 617 that the rights and obligations belonging to naturalization in Australia under the Act of 1903 are limited to Australia. In that sense it may be said to be a partial and not an absolute naturalization.

It is to be noted, however, that while the Australian Naturalization Act 1903, section 8, provides that a person to whom a certificate of naturalization is granted shall in the Commonwealth be entitled to all political and other rights etc., it does not contain the qualification, which the corresponding section (section 7) of the Imperial Act of 1870 contains, that the naturalized person 'shall not, when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of naturalization, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof, or in pursuance of a treaty to that effect'.

It should also be pointed out that the German law of 1913 does not contain a provision corresponding to that contained in the French Imperial Decree of 26 August 1811.

On the whole, therefore, having regard to the terms of sections 17 and 25 of the German Imperial and State Nationality Law of 22 July 1913, I am of opinion that a German national, naturalized in Australia, under the Act of 1903, after that date, ceased on such naturalization to be a German subject.

For these reasons, I am of opinion that, in the absence of evidence that Dr Herz obtained the consent of the German authorities to retain his German nationality, Dr Herz must be regarded as not being a German national within the meaning of the Treaty of Peace with Germany.

[Vol. 18, p. 41]