The Secretary to the Department of Home and Territories has forwarded for advice the following memorandum:

Referring to the opinion conveyed in your memorandum of 16 August 1911, as to whether a person born in Portugal and naturalized in Australia was entitled to British protection on his return to Portugal, it was stated as follows: ' . . . if a person, born in Portugal, but naturalized in Australia, returns to Portugal, he is subject to Portuguese law as regards military service'.⁽¹⁾

I shall now be glad to know whether a grantee, holding a certificate under the Nationality Act 1920, and a passport endorsed accordingly, may be required to undertake military service on returning subsequently to the land of his birth.

The determination of the question whether a Portuguese subject naturalized under the Nationality Act 1920 who returns to Portugal is liable to perform military service depends on the law of Portugal. According to Burge, Colonial and Foreign Laws, 1908, Vol. 2, p. 101, it is a general principle that Portuguese nationality is lost by naturalization abroad. In dealing with the exceptions to the general principles governing loss of nationality in various countries Burge makes no mention of liability to perform military service being a bar to loss of Portuguese nationality, although he expressly refers to such an exception in the case of other countries, e.g. France.

[Vol. 18, p.158]

(1) The Secretary to the Department of External Affairs had asked whether a man, born in Portugal,but resident in Australia for eighteen years and naturalized there under the Naturalization Act I903,would, if he returned to Portugal, be liable to render military service there and in particular whether ' . . . he is free from arrest on arriving there. And if his passport, and his naturalization papers will give him British protection in Portugal’.

The opinion [Vol. 9, p. 130], not published in Vol. 1, after pointing out that the rights, powers and privileges to which a naturalized person is entitled, pursuant to section 8 of the Naturalization Act 1903, are conferred only in the Commonwealth, cites a Circular Dispatch, dated 12 September 1902, from the Secretary of State for Foreign Affairs to H.M. representatives and consular officers, reading as follows:

‘With reference to the Circular (Treaty) Dispatch from this Office of 19 September 1898, relative to the form of passport to be issued by Governors of British Colonies to persons naturalized in those Colonies, I have to inform you that you are authorised, when necessary, to issue to such persons passports containing a distinct statement that the holder is, within the limits of the Colony, within which he was naturalized, a British Colonial subject, by naturalization, and is only entitled beyond the limits of that Colony as a matter of courtesy, to the general good offices and assistance of his Majesty’s representatives abroad. Care should especially be exercised to avoid any appearance of claiming to protect such persons as against the laws of their country of origin’.

Mr (as he then was) Garran concluded thus:

'In my opinion, if a person, born in Portugal, but naturalized in Australia, returns to Portugal—

(a) he is subject to Portuguese law as regards military service; and

(b) his passport and naturalization papers will give him no right to British protection, but only such assistance as His Majesty’s representative in Portugal may, as a matter of courtesy, afford him’.