By direction of the Assistant Minister for Defence the Secretary, Department of Defence, has forwarded for advice the attached papers relative to the certain charges against Pastor Nickel, Lutheran Minister at Eudunda.

It appears from the file that two charges are made by the military authorities

against Pastor Nickel:

1. That he failed to hand over, when called upon to do so, a letter received by him from Mr Homburg, Attorney-General.
2. That he failed to comply with a proclamation issued by the military authorities for the surrender of arms.

Dealing first with the second charge-

It appears that on or about 23 November a notice was inserted in the Adelaide papers by the Commandant of the 4th Military District, notifying that enemy subjects, whether naturalized or not, were prohibited from being in possession of firearms and ammunition during the continuance of the present war, and directing all such subjects to deliver them up for safe custody to a police officer or the local military unit.

On 27 November Pastor Nickel wrote to Mr H. Homburg, Attorney-General of South Australia, inquiring whether the notification applied to him, and was on 30th idem advised by Mr Homburg in the following terms:

I treat your letter of the 27th instant as private inasmuch as I have no authority as Attorney-General to offer an opinion on the question you have put to me.

I have looked up the authorities, and it seems to me very clear that a Prussian subject cannot divest himself of the obligations attaching to his country of origin by becoming a naturalized subject of another country, unless his country of origin is prepared to issue him a 'Certificate' which alone can discharge him from the obligation of military service etc.

The Commonwealth proclamation is no doubt directed against this position, and it is as well for all who are within the direction to conform to it.

In your case, as set out in your letter, such certificate-or its equivalent at any rate-appears to have been granted. I suppose you can produce such a document, and that being so, there is no need for you to take any action under the Commonwealth proclamation. Even if you do not possess a written certificate your verbal assertion should suffice for the time being, leaving it to the Commonwealth authorities to question it later on if they desire to do so. So far as I can see no ill will result to you from a non-compliance with the proclamation.

As to the other matter you were good enough to write to me about, I will answer at some later date.

Pastor Nickel is stated by Major Logan to have delivered up his rifle early in the present month.

The question then is, whether, in view of the delay which has taken place Pastor Nickel can be prosecuted for failure to comply with the notification as to delivering up arms.

Some delay on the part of Pastor Nickel does seem to have taken place in complying with the notification, and had proceedings been taken before the arms were actually handed over, it is I think probable that a conviction might have been obtained. But, seeing that no time is specified in the notice, within which arms are to be handed up, and Pastor Nickel handed up his arms before proceedings were actually commenced, it is in my opinion futile to charge him with failure to comply with the notification re arms.

There is some question also whether the notification actually applies to him. It refers to 'enemy subjects, whether naturalized or not'. The intention was probably to include all persons who are natural-born subjects of any country with which England is at war. It is not quite clear, however, whether in the event of such a subject being naturalized in Australia and denaturalized in the country of his birth, he would be included within the meaning of 'enemy subject, whether naturalized or not'. It is not, however, necessary to decide the question in the present case, but this phase of the matter should receive attention.

Dealing now with the first charge-

The Defence Department, hearing that Pastor Nickel had in his possession a letter from Mr Homburg to the effect that a person who had left Germany and received his discharge was not an enemy subject, wrote to Pastor Nickel on 4 January requesting him to 'be good enough to furnish either the original or a copy of such letter and supply full particulars in regard to the writer thereof.'

The papers do not disclose when this letter was posted to, or served on, Pastor Nickel.

But on 9 January the General Staff Officer received a letter, dated 7 January, from Homburg Melrose & Homburg, Solicitors, Adelaide, stating that they are acting for Pastor Nickel, and informing the General Staff Officer as follows:

We are acting for Pastor T. Nickel of Eudunda to whom you wrote on the 4th instant.

Your letter leaves us under the impression that you are not seized of the facts and possibly too mistaken in your view of the law.

On behalf of our client we shall be glad to know what it is you particularly wish to know, and if we can, to assist you with information, or if you prefer it, we shall be pleased to confer with you on your making an appointment. On 11 January the General Staff Officer replied to this letter, as follows:

I have to acknowledge receipt of your communication of 7th instant, and to point out that your client, Pastor Nickel, was asked to furnish certain information, particulars of which are contained in my letter dated 4th instant, a copy of which presumably has been handed by him to you.

Under paragraph 4 of the Regulations under the War Precautions Act will you be so good as to hand to me without delay all the correspondence that has passed between Pastor Nickel and a Mr Homburg in regard to the recent proclamation calling upon enemy subjects to deliver up arms. The letter was served on Mr Homburg personally by the General Staff Officer, and elicited the following reply, dated the same day, from the firm:

We acknowledge your letter of even date and desire to inform you we are not in possession of any correspondence passing between Pastor Nickel and a Mr Homburg in regard to the recent proclamation calling upon enemy subjects to deliver up arms, nor have any letters at any time passed between our firm and the Pastor on this subject.

In fulfilment of the promise expressed in our previous letter and repeated at the interview today in which we undertook to give you such information as we felt we were free to disclose to you, we now refer you to the Honourable the Attorney-General's Department from which, we understand, a communication was sent to Pastor Nickel touching the matter referred to in your letter and which has since, so we understand, been returned to the Minister.

We should like to add, so as to avoid the view that we acquiesce to the demand which you have made, and say that even if we had any correspondence in our possession containing matters of advice as between solicitor and client, on behalf of our client we should feel compelled to claim the usual privilege which the law allows and excuse the production of documents containing professional confidence.

We cannot accept your interpretation of paragraph 4 of the War Precautions Act which, in our opinion, is no authority for the request you are making. The request to a solicitor to disclose the advice he has tendered to his client is unreasonable and unheard of and we feel sure the War Precautions Act does not even contemplate, much less expect it.

We make these observations merely as an addendum and to make it clear that whilst willing to conform to your reasonable requests within the ambit of your authority we cannot accept your view of the law and must hold you strictly to whatever rights have been conferred upon you by Statute. On the following day the General Staff Officer called upon Mr Homburg, at the Attorney-General's Department, when the letter of 30 November, set out above, was handed over.

Section 4(1) of the War Precautions Act is as follows:

4.(1) The Governor-General may make regulations for securing the public safety and the defence of the Commonwealth, and for conferring such powers and imposing such duties as he thinks fit, with reference thereto, upon the Naval Board and the Military Board and the members of the Naval and Military Forces of the Commonwealth.

The War Precautions Regulations (S.R.1914 No.154) made under the authority of this Act, provide, inter alia, that:

4. No person shall obstruct or otherwise interfere with or impede, or withhold any information in his possession, which he may reasonably be required to furnish, from, any officer or other person who is carrying out the orders of the competent naval or military authority, or who is otherwise acting in accordance with his duty under these Regulations.

I understand that the Commandants of the various States have been appointed 'competent naval or military authorities' within the meaning of the War Precautions Regulations. In demanding of Pastor Nickel the letter in question, Major Logan signed as acting for the Commandant, and was therefore presumably acting with authority.

The letter in question was actually handed over by Pastor Nickel's solicitor, and it therefore appears useless to charge Nickel with not having handed it over.

I think therefore that on the facts as disclosed proceedings against Nickel upon either of the two charges above referred to would fail.

As regards the German papers which were sent to Nickel to distribute, there is no evidence on the file that any papers were distributed by him. In fact the papers referred to in the file were actually detained by the Censor, and did not reach Pastor Nickel's hand. But if evidence were available to prove distribution by him, it would amply justify a charge of disloyalty.

The position however, needs to be looked at generally.

Under regulation 26 of the War Precautions Regulations, if the Minister has reason to believe that any naturalized person is disaffected or disloyal, he may order him to be detained in military custody.

If the Minister is satisfied that Pastor Nickel is disaffected or disloyal, action may be taken under this regulation. But on the facts disclosed in the file I know of no other proceedings that can be taken against him with any prospect of success.

[Vol. 13, p. 238]