Opinion Number. 1064

Subject

NATURALIZATION EFFECT OF AUSTRALIAN CERTIFICATES OF NATURALIZATION WITHIN MANDATED TERRITORY OF NEW GUINEA

Key Legislation

NATURALIZATION ACT 1903: NATIONALITY ACT 1920. ss. 8, 17: BRITISH NATIONALITY AND STATUS OF ALIENS ACT 1914: LAWS REPEAL AND ADOPTING ORDINANCE 1921 (N.G.)

Date
Client
The Secretary, Prime Minister's Department

The Secretary, Prime Minister's Department, has submitted the following memorandum for advice:

The attached letter of 9 April and radio of 6 May from the Deputy Chairman, Expropriation Board, Rabaul, inquires whether Australian nationality acquired prior to 4 August 1914 is effective outside Australian territory, and more particularly within the mandated Territory of New Guinea.

The Ordinances published in Commonwealth Gazette of the 6th instant, which came into force in New Guinea on the 9th instant, adopt, amongst other Commonwealth Ordinances scheduled, the Commonwealth Nationality Act 1920, section 8 of which provides that the Governor-General may, upon application, grant certificates to persons naturalized under the previous Commonwealth or more previous State Naturalization Acts.

There are a number of persons in the Territory previously considered Germans, who are now anxious to establish British nationality by virtue of pre-war State or Commonwealth naturalization. The persons in question may be:

  1. Persons who were first naturalized in an Australian State, and afterwards automatically acquired Commonwealth naturalization under the 1903 Act without any further personal action.
  2. Persons who acquired Commonwealth naturalization under the 1903 Act, but have taken no further direct action.
  3. Persons naturalized as in (a) and (b), but who have since obtained certificates under section 8 of the Commonwealth Nationality Act 1920.

The question to be answered is whether any or all of the foregoing persons automatically become British subjects in the mandated Territory of New Guinea on and after 9 May 1921 (the date upon which the Commonwealth Nationality Act 1920 becomes applicable there), or whether any or all of the foregoing persons must now make application under section 8 of the adopted Commonwealth Nationality Act 1920.

If there is any doubt on the subject, I submit that the Administrator should prescribe one such person whose case presents least merit to personal consideration, so that he may appeal to the courts and establish his right, rather than allow all such persons, deserving and undeserving alike, to be adopted as good British subjects.

Certificates of naturalization granted under the Naturalization Act 1903-1917 have no force outside the Commonwealth (R. v. Francis; Ex parte Markwald [1918] 1 K.B. 617). Similarly where British nationality was acquired by virtue of a certificate granted under State law, and continued under the Commonwealth Naturalization Act 1903, such certificate is only effective within the Commonwealth. Persons in late German New Guinea who base their claims to British nationality solely upon the grant of a certificate of either of the classes above mentioned, are not in that Territory British subjects.

If any person who holds a certificate granted by either State or Commonwealth prior to the commencement of the Nationality Act 1920 has obtained a certificate under the last-mentioned Act, he must, in New Guinea, be regarded as a British subject.

The application by the Laws Repeal and Adopting Ordinance 1921 of the Nationality Act 1920 does not, in my opinion, affect the question. A certificate granted under the Nationality Act 1920 has the same effect as a certificate granted by the Secretary of State under the British Act. It confers upon the grantee, British nationality in any country except such British possessions, specified in the First Schedule to the British Act, as have not adopted Part II of that Act.

[Vol. 17, p.298]