Opinion Number. 1075

Subject

ELECTORAL ENROLMENT: NATURALIZATION WHETHER BRITISH SUBJECT BY REASON OF ANNEXATION OF TERRITORY IS ENTITLED TO ENROLMENT: WHETHER GRANT OF CERTIFICATE OF NATURALIZATION TO ABORIGINAL NATIVE OF ASIA, AFRICA OR AN ISLAND OF THE PACIFIC OVERCOMES ELECTORAL DISQUALIFICATION

Key Legislation

NATURALIZATION ACT 1903, ss. 3, 5: COMMONWEALTH ELECTORAL ACT 1918, s. 39 (1) (b), (5): NATIONALITY ACT 1920, ss. 5, 11

Date
Client
The Chief Electoral Officer

The Chief Electoral Officer has forwarded for advice the following memorandum:

Section 39 (1) of the Commonwealth Electoral Act 1918-1919 provides that: ' ... all persons . . . (b) who are natural-born or naturalized subjects of the King, shall be entitled to enrolment . . . '

The Naturalization Act 1903-1917 defined a 'British subject' as 'a natural-born British subject or a naturalized person'.

The Nationality Act 1920, which repeals the Naturalization Act 1903-1917, defines a 'British subject' as 'a person who is a natural-born British subject, or a person to whom a certificate of naturalization has been granted, or a person who has become a subject of His Majesty by reason of any annexation of territory'.

Question: Does a person who has become a subject of His Majesty by reason of annexation of territory (e.g. a subject of (say) the Transvaal Republic who became a subject of the King by annexation of territory after the Boer War) come within the meaning of the words 'naturalized subject of the King' in section 39 (1) (b) of the Commonwealth Electoral Act? If not, should the Commonwealth Electoral Act be amended so as to bring it into agreement with the Nationality Act 19201

Under the Naturalization Act 1903-1917 (section 5) an aboriginal native of Asia, Africa, or the Islands of the Pacific excepting New Zealand, was not eligible to apply for naturalization. There appears to be no such restriction under the Nationality Act 1920 but the granting of a certificate is in the absolute discretion of the Governor-General in Council. It is understood that some aboriginal natives of Asia, i.e. Chinese, have applied for certificates of naturalization under the provisions of the Nationality Act 1920 and have been refused, but that there is a probability of others (Assyrians) receiving certificates.

Section 11 of the Act of 1920 provides that: 'A person to whom a certificate of naturalization is granted . . . shall ... be entitled to all political and other rights, powers and privileges, and be subject to all obligations duties and liabilities to which a natural-born British subject is entitled or subject, and . . . have to all intents and purposes the status of a natural-born British subject' but subject to the following proviso, viz:

Provided that where, by any provision of the Constitution or of any Act or State Constitution or Act, a distinction is made between the rights, powers or privileges of natural-born British subjects and those of persons naturalized in the Common-wealth or in a State, the rights, powers and privileges conferred by this section shall, for the purposes of that provision, be only those (if any) to which persons so naturalized are therein expressed to be entitled.

Sub-section (5) [of section 39] of the Commonwealth Electoral Act which provides: No aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific (except New Zealand) shall be entitled to have his name placed on or retained on any roll or to vote at any Senate election or House of Representatives election unless so entitled under section forty-one of the Constitution.

appears to be an express disqualification for enrolment (and voting) of the class of persons coming within its scope and does not make a distinction 'between the rights, powers or privileges of natural-born British subjects and those of persons naturalized in the Commonwealth or in a State'.

In view of the fact that aboriginal natives of Asia, Africa and the Islands of the Pacific, are not now ineligible to apply for naturalization, the following question arises:

Would the granting of a certificate of naturalization to any such person affect the operation as regards that person of sub-section (5) of section 39 of the Commonwealth Electoral Act so as to remove the disqualification for enrolment and voting having regard to section 11 of the Nationality Act 1920?

There appears to be no direct authority for saying that persons who become British subjects by reason of the annexation of territory become naturalized British subjects. In Boyd v. Nebraska ex rel. Thayer 143 U.S.135 it was held that, when a State was admitted to the Union, Congress had power to effect a collective naturalization of the citizens of the State so admitted and numerous cases are therein mentioned in which the citizens of a State or Territory have collectively become citizens of the United States of America.

Regarding, then, annexation as an involuntary admission to the annexing nation the case of Boyd v. Nebraska may, I think, be taken as authority for saying that, where the citizens of the annexed territory become by reason of the annexation, subjects of the annexing nation, a collective naturalization has been effected.

In my opinion therefore, a person who has become a subject of His Majesty by reason of annexation of territory comes within the meaning of the words 'naturalized subject of the King' in section 39 (1) (b) of the Commonwealth Electoral Act.

As regards the question whether the granting of a certificate of naturalization to an aboriginal native of Asia, Africa or the Islands of the Pacific would qualify that person for enrolment and voting notwithstanding the provisions of section 39 (5) of the Commonwealth Electoral Act, I am of opinion that such a person would not be entitled to be enrolled or to vote under the Commonwealth Electoral Act 1918-1919. By section 11 of the Nationality Act 1920 that person is upon the grant of the certificate of naturalization 'entitled to all political and other rights, powers and privileges ... to which a natural-born British subject is entitled'; but a natural-born British subject who is an aboriginal native of Asia, Africa or the Islands of the Pacific is not entitled to be enrolled or to vote under the Common-wealth Electoral Act 1918-1919 and in my opinion, therefore, a naturalized British subject who is an aboriginal native of any of those countries is similarly not entitled.

[Vol. 17, p.330]