The Secretary, Department of the Interior, has forwarded the following memorandum to me for advice:

Sections 10 and 2 of the Nationality Act read as follows:

Section 10:

1. Where an alien obtains a Certificate of Naturalization, the Minister may, if he thinks fit, on the application of that alien, include in the certificate the name of any child of the alien born before the date of the certificate and being a minor, and that child shall thereupon, it not already a British subject, become a British subject; but any such child may, within one year after attaining his majority, make a declaration of alienage, and shall thereupon cease to be a British subject.

Section 22:

1. Any person who by reason of his having been born within His Majesty’s dominions and allegiance or on board a British ship is a natural-born British subject, but who at his birth or during his minority become under the law of any foreign State a subject also of that State, and is still such a subject, may, if of full age and not under disability, make a declaration of alienage, and on making the declaration shall cease to be a British subject.
2. Any person who though born out of His Majesty’s dominions is a natural-born British subject may, if of full age and not under disability, make a declaration of alienage, and on making the declaration shall cease to be a British subject.
2. The question as to whether declarations of alienage can be made during war time has been raised by the Secretary, Department of the Army. Copy of a memorandum from that Department in regard to the matter is forwarded herewith for your information.
3. Since the outbreak of war only one declaration of alienage has been registered, the declarant being one, A.S., who was born in Greece on 18th January, 1919, and whose name was included on the Naturalization Certificate issued to his father. This declaration was made under the provisions of section 10 of the Nationality Act. S. desired to avoid military service.
4. One, W.S.K., who was born in Australia and claims to be an American by virtue of his father having been an American national wishes to make a declaration of alienage under the provisions of section 22 of the Act. This case has not yet been decided.
5. No provision has been made in the Nationality Act which would preclude a declaration of alienage being accepted during a time of war, but in view of the cases quoted in the memorandum from the Department of the Army it would be appreciated if you would kindly furnish early advice on the matter.
6. Should it be decided that such declarations cannot be made in time of war, advice would also be appreciated as to what action should be taken to cancel the declaration made by A.S.

The memorandum from the Department of the Army is as follows:

Information has reached this Department that applications have been made to your Department for the necessary forms to enable the applicants to make declarations of Alienage under the provisions of section 22 of the Nationality Act 1920–1936. In one particular case the person concerned stated that he proposed to make such application to avoid military service, and that he had registered himself as an alien.

It would appear that if the nationality to be adopted by the declaration of alienage were an enemy nationality, such declaration cannot be made by a male in time of war (R v Lynch (1903) 1 KB. 444; R v the C.O. 30th Battalion, Middlesex Regiment, exp. Freyberger (1917) 2 KB 129).

If the nationality proposed to be adopted were that of a neutral it would appear that, by virtue of sections 32A(3) and 59 of the Defence Act and the decision in Gschwind v Huntingdon (1918) 2 KB 420, such declaration cannot be made in time of war when the applicant being a male is under the age of 60 years. The position is the same with regard to male persons liable to training under Part XII of the Defence Act.

In view of the foregoing it is assumed that your Department will not, in time of war, accept declarations of alienage from male persons under the age of 60 years.

The sections of the Nationality Act 1920–1936 referred to by the Secretary, Department of the Interior, are correctly quoted. Regulations 12 and 18 of the Naturalization Regulations are as follows:

12. A declaration of alienage may be in accordance with Form F.

1. Every person who makes a declaration of alienage or any declaration referred to in regulations 13, 14, 15, 16 or 17 of these Regulations shall forward the original declaration, together with a copy thereof, to the Department of the Interior, Canberra, for registration.
2. The original declaration shall be filed in the Department of the Interior, and the copy, certified to be a true copy and endorsed as having been registered, may be forwarded to the declarant upon payment of the prescribed fee.

It is settled that a person cannot, by a declaration of alienage made in time of war, divest himself of his British nationality so as to become solely the subject of an enemy state. This was the main ground of the decision of the three judges in the Divisional Court, and of two of the three judges in the Court of Appeal, in Rex v. Commanding Officer, 30th Battalion, Middlesex Regiment, Ex parte Freyberger (1917) 2 K.B. 129, and the Nationality Act must be read subject to this rule. The question whether a declaration of alienage made during war is valid when the effect would be to make the declarant solely the subject of a neutral or allied state has not been definitely decided in the courts. The question was expressly left open by Viscount Reading C.J. and Horridge J. in the Divisional Court in Freyberger’s case. Ridley J., at p. 134, used the following words:

I think it clear, after considering the case of Rex v. Lynch (1903) 1 K.B. 444, 449, that, under section 14 of the British Nationality and Status of Aliens Act, 1914, the declarations of alienage therein mentioned cannot be made in time of war.

However, on a reading of his judgment as a whole, it does not appear that he was adverting to the question now under consideration. The question was again expressly left open by the Court of Appeal in Vecht v. Taylor (116 L.T. 446).⁽¹⁾ In Dawson v. Meuli (118 L.T. 357)⁽²⁾ the respondent had made a declaration of alienage during the Great War with the intention of becoming solely a Swiss (neutral) subject. The Court of Appeal did not find it necessary to decide whether he had ceased to be a British subject, but Darling J. (at p. 359) used language which appears to imply that in his opinion he had so ceased, e.g. in one passage he said:

Now, on the 1st October, 1916 he was undoubtedly a British subject and a Swiss subject also, with the right if he chose to make a declaration of alienage, of renouncing his British nationality and constituting himself a Swiss subject only.

In a later passage he said:

He is a British soldier, although he has ceased to be a British subject.

I do not find it necessary, however, to express an opinion on the doubtful question discussed above. The effect of registration of a declaration of alienage is not entirely clear. It may be that it is a condition precedent to the validity of the declaration (as to which see the judgment of Bray J. in Freyberger’s case, at p. 140), or it may be that the provisions for registration are intended merely to provide a public record of declarations. But it is clear, in my opinion, that registration does not validate any declaration of alienage which was invalid for some reason other than non-registration. While, therefore, I think that the Department of the Interior may properly refuse to register declarations which are certainly invalid (including declarations by persons possessing dual British and enemy nationality), I do not think the Department should refuse to register declarations by persons possessing dual British and neutral or allied nationality. These declarations are not certainly invalid, and, if they are invalid, they are not validated by registration.

I may say that this advice is in accord with what appears to have been the practice of the British Home Office during the Great War. Thus the Home Secretary refused to register Freyberger’s declaration, but did register the declarations in Vecht’s and Meuli’s cases, and in the case of the appellant in Gschwind v. Huntington (1918) 2 K.B. 420 after the decision of the Court of Appeal in Freyberger’s case. (See also Dicey on Conflict of Laws, 5th Edition, p. 176 footnote (q)).

It should be noted that I have not discussed the question whether a valid declaration of alienage, registered or unregistered, would relieve a person who was a British subject when war was declared from obligations to perform military service or training. That question would involve the question of the applicability of the decisions of English courts in Vecht v. Taylor (supra), Dawson v. Meuli (supra) and Gschwind v. Huntington (supra) in relation to Commonwealth legislation. It is sufficient here to say that the registration of an invalid declaration of alienage would not affect the position.

[Vol. 33, p. 334]

(1) See also (1917) 33 TLR 317.

(2) See also (1918) 82 JP 99.