Opinion No. 676
NATURALIZATION: DUAL NATIONALITY
WHETHER DECLARATION OF ALIENAGE CAN BE MADE BY PERSON DEEMED TO HAVE BEEN NATURALIZED IN COMMONWEALTH AS INFANT CHILD OF NATURALIZED PERSON: EXTENT OF COLONIAL NATURALIZATION: LIMITED EXTENT OF SUCH NATURALIZATION REFLECTED IN PASSPORTS
NATURALIZATION ACT 1903, s. 10: NATURALIZATION ACT 1870 (IMP.), s. 16: BRITISH NATIONALITY AND STATUS OF ALIENS ACT 1914 (IMP.), ss. 14, 15, 19 (1) (b)
06 January 1916
The Secretary, Department of External Affairs
The Secretary, Department of External Affairs, has forwarded the following memorandum asking for advice:
An Italian who had been resident some time in the United States came to Australia bringing with him his wife and children. He became naturalized here. According to section 10 of the Naturalization Act the children who were minors are also deemed to be naturalized. One child who was born in the United States has now reached the age of twenty-one. According to the Italian law he is an Italian subject. According to our law he is a British subject. He desires to opt in favour of Italian nationality and to render his military service to the Italian Government. Will you be so good as to advise me as to what procedure he should go through in order to divest himself of his British/ Australian nationality?
The Commonwealth Naturalization Act 1903 makes no provision for the divestment of British nationality. The British Nationality and Status of Aliens Act 1914 which is an Imperial Act in force in the Commonwealth except as regards Part II thereof contains in sections 14 and 15 certain provisions as regards divestment of British nationality, as follows:
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 became 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.
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.
15. Where His Majesty has entered into a convention with any foreign state to the effect that the subjects or citizens of that state to whom certificates of naturalization have been granted may divest themselves of their status as such subjects, it shall be lawful for His Majesty, by Order in Council, to declare that the convention has been entered into by His Majesty; and from and after the date of the Order any person having been originally a subject or citizen of the state therein referred to, who has been naturalized as a British subject, may, within the limit of time provided in the convention, make a declaration of alienage, and on his making the declaration he shall be regarded as an alien and as a subject of the state to which he originally belonged as aforesaid.
These provisions do not however apply in terms to the present case, nor does the form of declaration of alienage which is prescribed by regulations made under section 19 (1) (b) of the British Act.
I am of opinion therefore that there is no statutory provision under which the person in question could make a declaration of alienage.
It does not appear however that any formal act on the part of the person in question is necessary in order that he may be regarded under Italian law as an Italian subject. The weight of opinion hitherto regarding the effect of colonial naturalization is that it is effective only within the limits of the colony. Conformably with this view the person in question would, when outside the limits of Australia, probably be regarded by the British authorities as not being a British subject. I have no doubt also that he would be regarded by the Italian authorities, at least while he was in Italy, and probably also while he remained in Australia, as a subject of Italy.
As regards the question of the issue of a passport to the person referred to herein (upon which question the Secretary, Department of External Affairs, has asked verbally for advice), I desire to point out that in his work on Nationality, Part 1, p. 229, Sir Francis Piggott, after quoting section 16 of the Imperial Naturalization Act 1870, writes as follows:
There is in the first place, a meaning which lies on the surface of these words, which is not only their commonly accepted meaning, but which also accurately represents the law as it applies to the most frequently recurring incidents resulting from colonial naturalization. The privileges conferred by it are to be enjoyed only when the person is within the limits of the Colony: when he is beyond the limits of the Colony he ceases to enjoy them. This corresponds with what has been called the narrow construction of s. 7 of the Act of 1870, which limits the effect of the British certificate granted under it to the United Kingdom.
Circular despatches have been issued from time to time, laying down this principle in unmistakeable terms. They deal with the very practical question of the 'good offices and assistance of His Majesty's Representatives abroad', and point out that persons naturalized in the Colonies are British colonial subjects within that Colony, and are only entitled to those good offices beyond the limits of the Colony 'as a matter of courtesy'.
This is inserted in the passports; special instructions are also given that care is to be exercised, 'to avoid any appearance of claiming to protect such persons as against the laws of their country of origin'. The issue by the Commonwealth authorities of a passport in the present case appears to be analogous to that referred to by Piggott, and I think that words similar to those mentioned by Piggott should be inserted in the passport.
[Vol. 14, p. 186]