Wong Man On v Commonwealth

[1952] HCA 27

HIGH COURT OF AUSTRALIA

Fullagar J.

WONG MAN ON v. THE COMMONWEALTH

(1952) 86 CLR 125

6 June 1952

Alien

Alien—Refugee—British subject—Person born of alien parents in enemy territory conquered and occupied in course of war by British forces—Mandated territory—Deportation from Australia—War-time Refugees Removal Act 1949 (No. 32 of 1949), s. 4.

Decision

June 6.
The following written judgment was delivered by:-
FULLAGAR J. This is an action brought against the Commonwealth of Australia, the Honourable Harold Edward Holt (who is the Minister of State administering the War-time Refugees Removal Act 1949) and Bertie Clyde Wall (who is an officer of the Minister's Department). By his statement of claim as amended the plaintiff claims an injunction to restrain a threatened trespass to the person, alleging that the defendants threaten and intend to cause him to be deported from Australia to New Guinea. The defendants in effect admit the intention and the threat to cause the plaintiff to be deported, but rely for justification on the War-time Refugees Removal Act and an order made by the Minister thereunder. (at p127)

2. Section 4(1) of the War-time Refugees Removal Act provides, so far as material, that the "Act shall apply to every person - (a) who entered Australia during the period of hostilities and is an alien". The Act is also made to apply to certain other classes of persons, and certain classes of persons are expressly excluded from it, but it was mutually admitted that the plaintiff was not within any of the other classes included or within any of the classes expressly excluded. Section 4(2) provides that the Minister may, by writing under his hand, certify that a person named in the certificate is a person of one of the classes specified in sub-s. (1), and any such certificate is to be prima-facie evidence of the fact so certified. Section 5 provides that the Minister may, at any time within twelve months of the commencement of the Act, make an order for the deportation of any person to whom the Act applies, and that that person shall be deported in accordance with the Act. (at p127)

3. The Act commenced on 12th July 1949. On 6th May 1950 the Minister, by writing under his hand, certified that the plaintiff "is a person specified in paragraph (a) of subsection (1) of Section 4. of the War-time Refugees Removal Act 1949". On the same day he signed an order that the plaintiff be deported from Australia. The meaning of the Minister's certificate is that the plaintiff entered Australia during the period of hostilities and was, on the date on which the Minister signed the certificate, an alien. It was admitted that the plaintiff "entered Australia during the period of hostilities", but it was denied that he was, on the date of the certificate or at any other material date, an alien within the meaning of the Act. (at p128)

4. The Act contains no definition of the word "alien". Throughout the argument before me it was assumed that the word means a person who is not a British subject, and I think that the question in the present case is whether the plaintiff is or is not a British subject. Actually, however, the national status of persons in Australia was, at the date of the commencement of the War-time Refugees Removal Act, governed by the Nationality and Citizenship Act 1948 of the Commonwealth, which came into force by proclamation on 26th January 1949. The terms of this Act follow closely those of the British Nationality Act 1948 (Imp.) (11 &12 Geo. 6, c. 56), which came into force on 1st January 1949. The Nationality and Citizenship Act 1948 defines the word "alien" as meaning "a person who is not a British subject, an Irish citizen or a protected person". The plaintiff is not an Irish citizen or a protected person within the meaning of the Act, but he does claim to be a British subject. Section 7 of the Act provides that the status of a British subject is to depend upon Australian citizenship or citizenship of one of certain other countries. The position of persons who were British subjects immediately before the coming into operation of the Act is dealt with by ss. 25 and 26. Under the provisions of s. 25, if the plaintiff was a British subject immediately before the coming into operation of the Act, he became, on the coming into operation of the Act, an Australian citizen, since he fulfils two of the four alternative conditions specified. Every Australian citizen is a British subject. The question, therefore, is whether, immediately before the coming into operation of the Nationality and Citizenship Act, the plaintiff was a British subject. That question must be determined by reference to the Nationality Act 1920-1946 (Cth.), which was repealed by the Nationality and Citizenship Act and the Statute Law Revision Act 1950. Since the plaintiff claims to be a British subject by reason of the place of his birth, it is s. 6(1)(a) of the Nationality Act that is material. That provides that "The following persons shall be deemed to be natural-born British subjects, namely:- (a) Any person born within His Majesty's dominions and allegiance". The wording is identical with that of s. 1(1)(a) of the British Nationality and Status of Aliens Act 1914(Imp.)(4 &5 Geo.5, c. 17), which governed the position in Australia before the passing of the Commonwealth Act of 1920, and which was repealed by the British Nationality Act 1948. The question which emerges for decision in this case is thus seen to be whether the plaintiff is a person who was "born within His Majesty's dominions and allegiance". (at p129)

5. The plaintiff was born on 15th January 1916 at what is now Madang in the Territory of New Guinea. His parents were Chinese. Before 1914 Madang was known as Friedrichwilhelmshafen, and the Territory (then generally known as German New Guinea) was part of the German Empire. The centre of administration for German New Guinea and a number of other German possessions in the Western Pacific was at Rabaul on the island of New Britain (Neu Pommern). On 6th August 1914, two days after Great Britain had declared war on Germany, the Secretary of State for the Dominions despatched a telegram to the Governor-General of Australia, part of which read as follows:- "If your Ministers desire and feel themselves able to seize German wireless stations at New Guinea . . . we should feel that this was a great and urgent Imperial service. You will realize, however, that any territory now occupied must at conclusion of war be at the disposal of Imperial Government for purposes of an ultimate settlement" In September, 1914, an Australian naval and military force proceeded to New Britain, and, after some opposition, occupied Rabaul. On 12th September, Colonel Holmes, the officer commanding the forces, issued a proclamation on behalf of His Majesty which recited that the island of New Britain had been occupied by the forces under his command, and that the authority of the German Government had ceased to exist therein. The proclamation then declared that "From and after the date of these presents the Island of New Britain and its dependencies are held by me in military occupation in the name of His Majesty the King". Certain orders and instructions followed as to the conditions which were to prevail during the occupation. On 17th September the German Governor formally surrendered to Colonel Holmes, and Terms of Capitulation were signed. This instrument recited that the Governor had no authority to surrender any portion of the German possessions under his administration, but, in view of the occupation by an overwhelming force, was prepared to give an assurance that all military resistance to such occupation should cease forthwith. It is necessary to mention only two of the twelve terms of the capitulation. Clause 8 declared that the administration of the colony during the military occupation would be conducted by the British Military Commander, and cl. 9 provided that "during the said military occupation the local laws and customs shall remain in force so far as is consistent with the military situation". On 22nd September the mainland of German New Guinea was occupied without opposition. (at p130)

6. From September 1914 until 19th May 1921, which was the date of commencement of the New Guinea Act 1920 (Cth.) the German possessions in the Western Pacific continued under what was known as the British Military Administration. Ordinances on various subjects were from time to time promulgated by the Officer Commanding the Forces. These had no statutory or other formal authority at the time of their making, but were validated by s. 6 of the Indemnity Act 1920 (Imp.)(10 &11 Geo. 5 c. 48). The plaintiff, having been born in German New Guinea during the period of British Military occupation and administration, says that he is a person who was "born within His Majesty's dominions and allegiance". (at p130)

7. It is plain, in my opinion, that no such contention can be maintained. There is a well-settled distinction between annexation or cession or subjugation on the one hand and mere military conquest and occupation on the other hand. It is not necessary, for present purposes, to examine the correct use of the terms "cession", "annexation" and "subjugation". It is enough to say that each is used to describe a formal and permanent acquisition, or a means of formal and permanent acquisition, of territory by one belligerent power from another. Such a permanent acquisition may, and often does, affect the nationality of all or some of the inhabitants of the territory acquired, though it does not necessarily do so, and a variety of questions may arise. For instance, if in this case there had been in 1914 a permanent acquisition by His Majesty of German New Guinea, the question whether the plaintiff's parents became British subjects would or might have depended partly on whether they were German nationals before the acquisition. But, while permanent acquisition by cession or otherwise may affect nationality, mere military conquest and occupation of particular enemy territory in the course of a war never does. On such occupation no change takes place in the nationality of any of the inhabitants, and persons born during the occupation do not ipso facto become nationals of the occupying country. The reason, of course, is that military conquest and occupation without more does not involve a change of sovereignty: territory conquered and occupied by British forces during the course of a war does not automatically become part of the King's dominions. Mervyn Jones(British Nationality Law and Practice, p. 40) says:-
"According to the established rule of international law conquest in itself does not transfer sovereignty over occupied territory. It is necessary that military occupation should be followed by annexation before sovereignty can pass". So Oppenheim on International Law, 5th ed.(1937), vol. 1, p.449, says:- "Conquered enemy territory, although actually in possession and under the sway of the conqueror, remains legally under the sovereignty of the enemy until through annexation it comes under the sovereignty of the conqueror". The learned author has just previously pointed out that the word "conquest" is sometimes used in a misleading sense in this connection. (at p131)

8. Mr. Hardwick, for the plaintiff, cited Calvin's Case (1609) 7 Co Rep 1, at p 25a (77 ER 377, at p407) , where it is said "Whosoever is born within the King's power or protection is no alien". The plaintiff, he said, was born within the King's power and protection. Calvin's Case (1609) 7 Co Rep 1 (77 ER 377) has been said to consist mainly of obiter dicta, and many of these have been much discussed. The passage cited was not intended with reference to any such case as the present. Mr. Hardwick also relied on the well-known case of Campbell v. Hall (1774) 1 Cowp 204, at p 208 (98 ER 1045, at p 1047) , when Lord Mansfield said:- "A country conquered by the British arms becomes a dominion of the King in right of his Crown . . . . The conquered inhabitants, once received under the King's protection, become subjects, and are to be universally considered in that light, not as enemies or aliens". This passage should, I think, be read in the light of the fact that the island of Grenada had, after conquest, been ceded by treaty to Great Britain, and everything material in the case took place after the cession. The only other authority on which Mr. Hardwick relied and to which I think I need refer is Craw v. Ramsay (1670) Vaughlan 274, at pp 281, 282 (124 ER 1072, at p 1075) , where the learned Chief Justice is reported by his son as saying:- "If the King of England enter with his Army hostilly the territories of another prince, and any be born within the places possessed by the King's Army, and consequently within his protection, such person is a subject born to the King of England, if from parents subjects, and not hostile. . . Those under the King's power, as King of England, in another prince his dominions, are under his laws". This passage is of very dubious import. It occurs in the course of an emumeration by Sir John Vaughan of "four ways in which men born out of England may inherit in England". It seems to have had no real bearing on the problem then in hand. The case of West Rand Central Gold Mining Co. Ltd. v. The King (1905) 2 KB 391 and the Sovfracht (V/O) v. Van Udens scheepvaart en Agentuur Maatschappij (N.V. Gebr.) (1943) AC 203 appear to me to deal with questions remote from any that arise in the present case. (at p132)

9. The view that enemy territory occupied by His Majesty's forces in time of war does not, by the fact of occupation, come within His Majesty's sovereignty or become part of his dominions, seems to be quite beyond doubt. One or two additional authorities may be cited. In American Insurance Co. v. 356 Bales of Cotton (1828) 1 Pet at p 542(7 Law Ed at p 255) (to which Mr. Holmes referred me) Marshall C. J. said:- "The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed". It could certainly not be suggested that in September 1914 Germany was entirely subdued] And, when the treaty of peace was made, German New Guinea was not, as we shall see, ceded to Great Britain. The legal problems which may arise out of belligerent occupation are many and various, but in 1941 we find McNair (Law Quarterly Review, vol. 57, at pp. 37, 39) regarding the following two propositions as commanding general agreement among British textwriters:- "(a) That birth in British territory under enemy occupation confers British nationality iure soli, unless the father is an alien enemy", and "(b) That birth in non-British territory, whether enemy, allied or neutral, under British occupation, would not confer British nationality iure soli". A suggested theory of "temporary sovereignty" seems long since to have been rejected. Writing in 1917 Oppenheim (Law Quarterly Review, vol. 33, at p. 363(n.)) reproached himself for having failed to point out "that the obedience owed to the occupant is imposed upon the inhabitants by his martial law only, and neither by international nor by their own municipal law". A little later (at p.364) he says:- "As regards the kind of authority an occupant possesses, Hall and others correctly describe it as mere military authority. . . . There is not an atom of sovereignty in the authority of the occupant, since it is now generally recognized that the sovereignty of the legitimate government, although it cannot be exercised, is in no way diminished by mere military occupation". (at p133)

10. That in 1914 no more than mere military occupation was either intended or effected seems to me to be made abundantly clear by the cablegram from London to the Governor-General, by the terms of Colonel Holmes's proclamation, by the terms of capitulation and by the nature of the military administration in fact established. I am clearly of opinion that the plaintiff is not a person who was "born within His Majesty's dominions and allegiance". And it appears to me equally clear that nothing happened later to make him a British subject. (at p133)

11. Article 119 of the Treaty of Peace with Germany, which was signed at Versailles on 28th June 1919, provided that "Germany renounces in favour of the Principal Allied and Associated Powers all her rights and titles over her overseas possessions". It is seen that there was no cession to Great Britain. Later there was conferred upon the Commonwealth of Australia, in pursuance of the Covenant of the League of Nations a mandate in respect of German New Guinea and certain other former German territories in the Western Pacific. The New Guinea Act 1920-1935 (Cth.) came into force by proclamation on 9th May 1921. It recited the conquest and continued occupation by the Commonwealth of German New Guinea, the Treaty of Peace, and an agreement by the Principal Allied and Associated Powers that a mandate should be conferred upon the Commonwealth. It also recited that a mandate was to be issued to the Commonwealth in respect of German New Guinea "with full power to administer the same, subject to the terms of the Mandate, as an integral part of the Territory of the Commonwealth". Section 4 of the Act provides that: "The Territories and Islands formerly constituting German New Guinea . . . are hereby declared to be a Territory under the authority of the Commonwealth, by the name of the Territory of New Guinea". By s. 5 the Governor-General was authorized to accept the mandate when issued. The Act then proceeds to provide for the civil administration of the Territory. (at p133)

12. Mr. Hardwick placed reliance on the words "as an integral part of the Territory of the Commonwealth", which appear in the mandate itself as well as in the preamble to the Act, and some support for his argument may be thought to be derived from a passage in the judgment of Isaacs J. in Mainka v. Custodian of Expropriated Property (1924) 34 CLR 297, at pp 300, 301 , where his Honour said:- "The words in the Australian Mandate appear to mean, not that the mandated territory is deemed to be physically part of the continent of Australia, but as territory belonging to the King in right of the Commonwealth of Australia". The mandate was, of course, a "C" class mandate. As to the origin of the expression in question see Ffrost v. Stevenson (1937) 58 CLR, at p 550 (per Latham C.J.). (at p134)

13. If the passage quoted from the judgment of Isaacs J. means that the Mandated Territory of New Guinea became, for all purposes, part of the King's dominions (which I gravely doubt, for the inelegant wording of the passage, as reported, strongly suggests to me that something important has been left out), it must, I think, be regarded as at variance with the whole current of authoritative opinion, and Evatt J. so regarded it in Ffrost v. Stevenson (1937) 58 CLR, at p 582 . The novel character of the mandatory system inevitably gave rise to many problems and much discussion among international jurists, but one point on which there seems to have been unanimity - or something nearly approaching unanimity - is that a Territory the subject of a "C" mandate does not become part of the dominions of the mandatary in such a sense as to confer on the inhabitants the nationality of the mandatary. This is certainly the view which one would be disposed to take prima facie and without authority. In Ffrost v. Stevenson (1937) 58 CLR, at p 552 Latham C.J. said:- "The Treaty of Peace, read as a whole, avoids cession of territory to the mandatary, and, in the absence of definite evidence to the contrary, it must, I think, be taken that New Guinea has not become part of the dominions of the Crown". Oppenheim (International Law, 5th ed. (1937), p. 194) says:- "In April 1923 the Council of the League adopted certain resolutions with regard to the national status of the inhabitants of 'B' and 'C' mandated areas, the substance of which is that they have a distinct status from that of the mandatary's nationals and, while not disabled from obtaining individual naturalization from the mandatary, do not automatically become invested with its nationality. The Council having no power to make law, these resolutions must be regarded rather as an opinion and a direction entitled to great weight than as juridical propositions, but it is generally accepted that they embody the correct doctrine". But I regard the question as really concluded for me by Ffrost v. Stevenson (1937) 58 CLR 528 . (at p134)

14. It was decided by all the justices in Ffrost v. Stevenson (1937) 58 CLR 528 that the Mandated Territory of New Guinea was a place out of His Majesty's dominions in which His Majesty has jurisdiction within the meaning of the Fugitive Offenders Act 1881 (Imp.) (44 &45 Vict. c. 69). As to other important questions there were differences of opinion, and even on this question two different approaches were made, for Rich, Dixon and McTiernan JJ. regarded the fact that the Territory was so treated in the Order in Council of 12th October 1925 (Imp.) (No. 1030) as establishing that it was a place out of His Majesty's dominions in which His Majesty had jurisdiction, whereas Latham C.J. and Evatt J. based the same conclusion on more general considerations. But all of their Honours reached the same conclusion on the only point that is important for the purposes of the present case. It is true that the decision in Ffrost v. Stevenson (1937) 58 CLR 528 related to the Fugitive Offenders Act 1881 (Imp.), whereas the statute which I have to consider is the Nationality Act 1920 (Cth.). But it seems to me to be quite impossible for me to hold, consistently with Ffrost v. Stevenson (1937) 58 CLR 528 , that the Mandated Territory of New Guinea became a part of His Majesty's dominions for the purpose of deciding a question of nationality. Even if I thought otherwise, other questions would or might arise with regard to the plaintiff in the present case, but the view which I do take is, of course, decisive against him. (at p135)

15. Later Commonwealth legislation with respect to the Territory of New Guinea is to be found in the Papua-New Guinea Provisional Administration Act 1945-1946 and the Papua and New Guinea Act 1949-1950, but it was not, and, so far as I can see, could not, be suggested that the status of the plaintiff was in any way affected by either of these statutes. (at p135)

16. I think I should add that I am indebted to counsel for their references to authority. (at p135)

17. The action must be dismissed with costs. (at p135)

Orders

Action dismissed with costs.