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

1. What are the rights of interned persons during their internment who are-
1. British subjects or naturalized British subjects;
2. interned civilian alien enemies resident in Australia prior to internment;
3. interned civilian alien enemies previously resident in other parts of the British Empire and brought to Australia for internment;
4. interned civilian alien enemies previously resident outside the British Empire and brought to Australia for internment;
5. combatant prisoners of war captured on the high seas or outside Australia and brought to Australia for internment-

with regard to the enforcement of ordinary civil rights either to property or in claims arising ex contractu or for damages in tort.

2. All persons interned have been registered as aliens under the War Precautions (Aliens Registration) Regulations 1916.

There appears to be no statutory provision governing the rights of any of the classes of persons mentioned to sue in the courts.

The right of natural-born or naturalized British subjects, resident in Australia, to sue in the courts, is not affected by the mere existence of a state of war, and if those subjects are interned their status as British subjects still remains and their right to maintain actions in the courts is not affected.

Alien enemies are only entitled to sue in British courts under certain conditions which have been laid down in the courts from time to time.

As early as 1697 it was held in the case of Wells v. Williams lLd. Ray. 282 that whether the alien enemy came to England in time of peace, when no safe conduct was necessary, or in time of war, without safe conduct, ' . . . if he has continued' in England 'by the King's leave and protection ever since, without molesting the Government or being molested by it, he may be allowed to sue, for that is consequent to his being in protection'.

Then early in 1915 the Court of Appeal traversed the whole position in the case of Porter v. Freudenberg [1915] 1 K.B. 857. It was held in that case that all persons resident in an enemy country are alien enemies and are not entitled to sue in British courts. Lord Reading C.J., who delivered the judgment of the Court, stated, at p. 869, that: 'Alien enemies have no civil rights or privileges unless they are here under the protection and by permission of the Crown'. Then, at p. 874, he goes on to say that:

The latest adjudication upon the alien enemy's right to sue is Princess Thurn and Taxis v. Moffitt ((1914) 31 Times L.R. 24), where Sargant J. held that the subject of an enemy State who was registered under the Aliens Restriction Act 1914, as an alien and the subject of an enemy State is entitled to sue in the King's Courts. This decision is in our opinion clearly right. Such an alien is resident here by tacit permission of the Crown. He has by registration informed the Executive of his presence in this country, and has been allowed thereafter to remain here. He is sub protectione domini regis.

The registration referred to is required by the Imperial Aliens Restriction Orders made under the Aliens Restriction Act 1914. The provisions of the Commonwealth Aliens Restriction Orders and the War Precautions (Aliens Registration) Regulations are together substantially the same as the English Orders.

In the case of Janson v. Driefontein Consolidated Mines [1902] A.C. 484, at p. 505, Lord Lindley said:

. . . when considering questions arising with an alien enemy, it is not the nationality of a person, but his place of business during war that is important. An Englishman carrying on business in an enemy's country is treated as an alien enemy in considering the validity or invalidity of his commercial contracts . . . Again, the subject of a State at war with this country, but who is carrying on business here or in a foreign neutral country, is not treated as an alien enemy; the validity of his contracts does not depend on his nationality, nor even on what is his real domicile, but on the place or places in which he carries on his business or businesses . . .

Lord Reading, referring in Porter v. Freudenberg at p. 868 to this passage, says that:

Lord Lindley's statement was not intended to be, and is not, exhaustive. His Lordship, for the purposes of the appeal then before the House of Lords, was considering the character of a trading corporation, and did not purport to deal with persons residing but not carrying on business in the enemy territory. Such a person is equally treated as an alien enemy provided he is voluntarily resident there, having elected to live under the protection of the enemy State.

As regards the alien enemies mentioned in sub-paragraphs (b) and (c) of paragraph (1) above, assuming that, prior to internment, they had continued in Australia or some other part of the British Dominions 'by the King's leave and protection . . . without molesting the Government or being molested by it', they were all, on the authority of the cases above cited, entitled to maintain actions in the King's Courts whether in respect to claims to property, ex contractu or in tort. With respect to those mentioned in sub-paragraph (d), assuming that they were all resident in either neutral or allied countries, they had, subject to the cause of action being within the jurisdiction of a British court, the same rights as those alien enemies mentioned in sub-paragraphs (b) and (c).

The question then arises whether internment affects the rights of these alien enemies to sue in the King's Courts. The case of Schaffenius v. Goldberg [1916] 1 K.B. 284 is, I think, authority for saying that it does not, so far at least as regards actions on contracts and provided always that there is no statutory provision restricting those rights.

The facts in the case of Schaffenius v. Goldberg were, as stated [at p. 298] in the words of Lord Cozens-Hardy M.R., that:

The plaintiff was a German by birth and had been resident in this country (i.e. England) for twenty-two years, and had carried on business here during that time. Immediately after the outbreak of war he registered himself under the provisions in force for the registration of aliens, and this operated as a licence to remain in the country, and carried with it the right to trade and enter into agreements with British subjects. The agreement in question here was entered into in March, 1915, and there is nothing in the agreement itself to lend colour to the suggestion that it was otherwise than perfectly free from objection. A considerable sum of money is admittedly due from the defendant to the plaintiff under that agreement. The plaintiff was interned in July of this year (1915), and the writ in this action was issued on September 7. The only point that has been tried is whether the plaintiff can take any proceedings having regard to his internment-in other words, whether he is exlex and has no locus standi in the Courts, so that the action ought to be dismissed. Younger J. (in the Court of first instance) made a declaration that the contract between the plaintiff and the defendant was not affected by the plaintiff's internment, and that the plaintiff was entitled to sue upon the contract and maintain an action.

The Court of Appeal agreed with the judgment of Younger J.

Lord Cozens-Hardy in his judgment referred to the judgment in the case of Princess Thurn and Taxis v. Moffitt that registration operated as a licence by the Crown to the registered person to remain commorant in England, and he said, at p. 299, that: 'It did not decide . . . that such a licence could not be revoked by the Crown'. He pointed out also that internment did not operate as such a revocation in that the plaintiff was not 'molested by the Crown' by being kept in confinement under an Internment Order. Then, at p. 301, he said that:

A prisoner who may be committed to prison for an offence is not exlex-he is entitled to assert his civil rights; and it is not right to say in this case that the plaintiff, although his personal liberty is curtailed by the Internment Order, as it was, though to a less extent, by the Order under the Aliens Restriction Act, has lost all power of enforcing his rights in respect of the trade which he has been carrying on without any possibility of complaint since the agreement entered into by him in March of this year (1915).

The question of the right of an interned alien enemy to sue in respect of property rights or of tort has not, so far as I am aware, yet come before the courts for decision, nevertheless, although the question before the Court in Schaffenius v. Goldberg was as to the alien enemy's right to sue on a contract entered into before internment, the judgment of Lord Cozens-Hardy was based on the general principle that internment does not amount to a molestation of the alien enemy by the Crown, and does not, therefore, restrict the right of the alien enemy to sue in the courts. I am, therefore, inclined to the view that such an alien enemy would be entitled to maintain other actions besides those ex contractu.

As regards paragraph (d), civilians previously resident in enemy countries and brought to Australia for internment, they would, I think, be held to be in the same position as civilian alien enemies previously resident in neutral or allied countries and brought here for internment. Having left the enemy country the disability of residence in an enemy country would cease.

As to paragraph (e), the question of the right of a combatant prisoner of war to sue in British courts has not been the subject of any recent decisions of the courts. In 1797, however, in the case of Sparenburgh v. Bannatyne 1 Bos. & Pul. 163 it was decided that the subject of a friendly state taken in an act of hostility on board an enemy's fleet and brought to England as a prisoner of war is not disabled from suing, while in confinement, on a contract entered into as a prisoner of war. As stated by Mr Justice Heath at p. 171, the contract was certainly entered into 'by the permission of the King's Officer, and therefore by the licence of the King, under whose authority the officer may be presumed to have acted', but Mr Justice Heath also says, at p. 171, without any limitation, that a prisoner of war may contract, and refers to the case of officers on parole who must subsist like other men of their own rank, and who, if unable to contract, would probably starve, 'for they could gain no credit if deprived of the power of suing for their own debts'. Then Mr Justice Rooke on the same page says: 'An enemy under the King's protection may sue or be sued: that cannot be doubted. A prisoner at war is, to certain purposes, under the King's protection, and there are many cases where he can maintain an action'.

If, therefore, a prisoner of war enter into a contract he may, I think, sue on that contract. It is highly probable also that the courts would hold that he is entitled to sue in respect of torts, and claims to property.

I am of opinion-

1. that interned natural-born or naturalized British subjects have full power to enforce their ordinary civil rights in the courts;
2. that interned civilian alien enemies in the classes mentioned in sub-paragraphs

(b) , (c) and (d) of paragraph (1) of the memorandum submitted are entitled to sue ex contractu, and that the courts would hold that they are also entitled to sue in respect of claims arising out of property and in tort; and that combatant prisoners of war captured on the high seas or outside Australia and brought to Australia for internment are entitled to sue on contracts entered into by them, and that the courts would probably hold that they are also entitled to maintain their rights to property and to take proceedings in respect of torts.

[Vol. 16, p. 252]