The Comptroller-General of Customs has forwarded me the following memorandum for advice:

The names of Dr and Mrs Finselbach appear on the list of cases referred to the Royal Commission respecting the property of German nationals resident in Australia.

2. It is understood that evidence was submitted to the Commissioner proving that Dr Finselbach was naturalized as a British subject in New South Wales in the year 1895.
3. In this connection, I forward herewith copy of my letter dated 5 October 1921, addressed to Dr Finselbach, and of his reply of 6 October 1921.
4. It will be observed that-
1. Dr Finselbach was naturalized in Australia prior to the German Imperial and State Nationality Law of 22 July 1913, and prior also to the passing of the Commonwealth Naturalization Act 1903; and
2. that, after naturalization, he took steps to reacquire the rights of a German subject.

In these respects his case differs from that of Dr Max Herz dealt with in the Solicitor-General's opinion dated 8 September 1921.⁽¹⁾

5. The favour of advice is requested as to whether Dr and Mrs Finselbach should be regarded, as at 10 January 1920, as German nationals within the meaning of Treaty of Peace Regulation 20 (Statutory Rule 1920 No. 25).

Dr Finselbach is stated to have come to Australia in 1892 and to have been naturalized under the law of New South Wales in 1895 and in 1899 to have registered at the German Consulate.

Section 21 of the German Nationality Law of 1870 provides that North Germans who leave the Confederation lose their citizenship by a ten years' residence in a foreign country. The ten years may be interrupted by registration in a Consulate of the Confederation and the period commences anew upon cancellation of the registration.

That law, which originally applied only to the German Confederation, was subsequently extended to the whole Empire.

I have no information as to whether Dr Finselbach's registration was ever cancelled.

In a memorandum by the British Embassy at Berlin it is stated that by the 1870 law a German lost his nationality if he resided abroad for ten years unless he registered himself periodically at the German Consulate.

The 1870 law does not require in order to preserve German nationality a fresh registration unless the previous one was cancelled. It may be that under consular practice registrations became automatically cancelled after the lapse of a certain period but I have no information as to this.

As the German law of 1913 is not retrospective it does not apply in this case.

Article 278 of the Treaty is merely an undertaking by Germany to recognise new nationality acquired or to be acquired by her nationals under the laws of the Allied or Associated Power. It is not of such a nature as to effect a change in the national status of any person. Dr Finselbach is not a person who acquires ipso facto under the Treaty the nationality of an Allied or Associated Power.

On the facts and information before me the position appears to be that on 10 January 1920 Dr Finselbach was a German under German law and a British subject under Commonwealth law.

In the case of Chamberlain v. Chamberlain 37 T.L.R. 966 at p. 967 it was held that the true view of the construction of the Treaty was that the expression 'German nationals' included, and was intended to include, all persons who according to German law answered that description, whether they also had any other nationality or not, and that it was left to each of the Allied and Associated Powers so to regulate matters within its own jurisdiction as to ensure that there should be no injustice or hardship.

It was further held that where the person concerned was a German national according to German municipal law, then that person came within the operation of the Treaty, although he might also be a national of some other state, even though that state was Great Britain, and even though, according to British law, he would be deemed not to be a German subject.

I am accordingly of opinion that Dr Finselbach may in the Commonwealth be treated as a German national for the purposes of the Treaty.

[Vol. 18, p. 128]

(1)Opinion No. 1128.