The Secretary to the Prime Minister's Department has forwarded me a minute of 17 August 1921 requesting advice as to whether Mr Brown's report of 2 August on the case of A.B. affects the opinion given by me on 16 June last that a certificate of naturalization under the Naturalization Act 1903 does not enable the holder to claim British nationality in the Territory of New Guinea.⁽¹⁾

Mr Brown expresses the opinion that the word 'Commonwealth', in the relevant sections of the Naturalization Act 1903, includes not only those portions of land which were at that date comprised under that title but also such portions of territory as have since become or may hereafter become 'integral parts of the Commonwealth of Australia'.

In this connection Mr Brown cites Article 2 of the Mandate which provides that: 'The mandatory shall have full power of administration and legislation over the territory subject to the present mandate as an integral portion of the Commonwealth of Australia . . . '

He also refers to the extension of the word 'Commonwealth' in the Nationality Act 1920 to include Papua and Norfolk Island.

The fact that the expression 'Commonwealth' in the Nationality Act 1920 is given an artificial meaning does not affect the operation of a certificate granted under a prior Act.

The terms of the Mandate do not and could not affect the territorial limits of the Commonwealth. The words quoted are merely a grant of administrative and legislative power and the term 'integral part of the Commonwealth' is used as a means of estimating that power.

It is true that the Commonwealth Parliament can legislate for territories under its authority but it needs express words in order to ensure that any Commonwealth statute shall operate outside the geographical boundaries of the Commonwealth.

I am therefore clearly of opinion that the word 'Commonwealth' in the Naturalization Act 1903 cannot be read as Mr Brown suggests.

I have, however, since advising on 16 June last in this case, given further consideration to the question of the effect of naturalization under the Commonwealth Act of 1903 upon the nationality of a person who before such naturalization was a German subject (opinion in case of Dr Herz⁽²⁾.

In my opinion of 16 June last in this case I advised as follows:

In my opinion, on the facts stated, B. must be regarded, in New Guinea, as a person who was, on 10 January 1920, a German national and liable to be prescribed under the Expropriation Ordinance.

In the case of Dr Herz I have advised that a German subject naturalized in Australia, under the Commonwealth Act of 1903, after the commencement of the German Nationality Law of 1913 (which commenced on 1 January 1914), ceased upon such naturalization to be a German national for the purpose of the Peace Treaty.

It is not clear whether section 25 of the German Nationality Law of 1913-which provides that a German who is neither domiciled nor permanently resident in Germany loses nationality on the acquisition of a foreign nationality if acquired on his application-applies to Germans who had become naturalized in a foreign country before that law commenced. The German law of 1870, which the law of 1913 superseded, did not provide that the acquisition of a foreign nationality involved the loss of German nationality. It did, however, provide that German nationality was lost by ten years' uninterrupted residence in a foreign country.

From a memorandum written by the British Embassy at Berlin, it appears that one of the reasons which prompted the passage of the new law was that under the old law a large number of persons had lost their German nationality merely through lapse of time, and it was felt that this was undesirable, and that nationality should only be lost-

as a consequence of some definite act on the part of the individual showing clearly that he desires to sever his connection with the fatherland. Such acts are:

1. application for discharge from German nationality;
2. the voluntary acquisition of a foreign nationality or entrance into the service of a foreign State; or
3. non-fulfilment of the obligation to perform military service.

For the purposes of the present case I am concerned with (2) only.

The Act does not in terms repeal the Act of 1870. It does, however, provide (section 37) that references in other German laws to the Act of 1870 shall be read as references to the Act of 1913.

For this reason, and also for the reason that the law of 1913 appears to cover practically the whole ground of nationality, I assume that it supersedes the law of 1870.

The question then remains, whether the provisions of section 25 of the law of 1913 are retrospective, so as, from the date of commencement of the law, to deprive of nationality a person who, prior to such commencement, had acquired nationality in a foreign country by application, but had not lost his German nationality by ten years' uninterrupted residence in the foreign country.

In the case of Ex parte Weber [1916] 1 A.C.421-in which the question arose whether a person of German birth who had been resident in England for fifteen years, but had not been naturalized had ceased to be a German national-the question whether the law of 1913 was retrospective was mentioned in argument but not decided. On behalf of the applicant an affidavit was made by Dr Schirrmeister-Marshal, a barrister-at-law of the Inner Temple, who was qualified to practise as an advocate in the German courts and was a Doctor of Laws of the Universities of Berlin and Leipzig. In his affidavit, Dr Schirrmeister-Marshal states that the statute of 1913 was not retrospective. In the Court of Appeal Phillimore L.J., referring to this statement, is reported to have said ([1916] 1 K.B.280 at p. 283):

I do not know whether he means by that to make the general observation that laws, unless so expressed, are not retrospective. If he means that there are no retrospective provisions in this law, I cannot say that I agree with the statement, because, having looked at the law, it seems to me to be obvious that ss. 30, 31, and 32 are retrospective. If he is relying on general principles, it is' true that a retrospective law does not, as a rule, impose obligations; but it may very well give rights. If there is anything in this law which gives a right to this applicant there is no objection to it on the ground that it is retrospective.

The House of Lords held in that case that the applicant was a German national, basing its decision in part on the fact that he had not acquired another nationality.

Upon the principles of construction of British Acts, I should hold that section 25 of the German law of 1913 did not apply to the acquisition of foreign nationality by a person before the law commenced. Having regard, however, to the fact that the object of the law was to make loss of nationality depend upon a definite act on the part of the person concerned, and that the law is in the nature of a declaration of the principles upon which the question of German nationality is determined, I am of opinion, though not without doubt, that section 25 of the law applies to a person originally of German nationality who acquired nationality of another country prior to the date upon which the law commenced.

I am, therefore, of opinion that B. must be regarded as not being a German national within the meaning of the Treaty of Peace with Germany.

[Vol. 18, p. 108]

(1) The Secretary, Prime Minister's Department, had sought advice concerning the conclusion reached by Mr E.T. Brown, Special Magistrate, on the nationality of one, A.B. Mr Brown upheld A.B.'s claim to be a naturalized British subject and therefore not liable to expropriation in respect of his property in the Territory of New Guinea.

According to Mr Brown’s report the evidence disclosed that B. was born in Berlin of German parents; that he arived in Sydney in 1908 and was naturalized in Australia about 1913 under the Act of 1903; and that in 1914 he went to New Guinea, where he had remained ever since.

The Solicitor-General’s opinion of 16 June 1921 [Vol. 17, p. 363] reads:

‘As a certificate of naturalization under the Naturalization Act 1903 does not operate outside the Commonwealth, Mr B. cannot claim, in New Guinea, British nationality by virtue of such a certificate.

I, therefore, disagree with the view expressed in Mr Brown’s report. In my opinion, on the facts stated, B. must be regarded, in New Guinea, as a person who was, on 10 January 1920, a German national and liable to be prescribed under the Expropriation Ordinance’.

(2) Opinion No. 1128.