The Secretary to the Home and Territories Department has forwarded for advice the following memorandum:

A.B.C, an applicant for naturalization, arrived in Australia on 15 April 1912. Until 1914, he was engaged on coastal vessels, his home being at Sydney. In 1914 he sailed to England on s.s. Lackenby and was engaged on that vessel on transport service between England and France until she was torpedoed. He then served on s.s. Saracen on the same service until she was torpedoed off Penzance on 27 December 1917. He landed at Penzance and joined s.s. Waimate and traded with meat from Buenos Aires to England and France until January 1919. On 18 January 1919, he left England for Australia and arrived at Sydney on 16 July 1919.

C. now resides at Port Adelaide, and is married to an Australian woman. Since his arrival in Australia, he has been working on coastal steamers.

I shall be glad to be favoured with advice as to whether the periods of C.'s engagements on the coastal service of Australia, and on transports between England and France, can be taken into consideration in connection with his qualifying period of residence under the Nationality Act 1920-1922.

I shall also be glad to be furnished with opinions on the following points:

1. A seafaring man has established a home in Australia. During the greater part of his time, he is absent from his home employed on vessels engaged in the coastal service of the Commonwealth. Can such periods of absence from his home be taken into consideration in connection with the qualifying period of residence under the Nationality Act 1920-19221
2. A seafaring man has established a home in Australia but is engaged on foreign-going vessels, and only actually resides in Australia during the period the vessel is at his home port. Can such absences from Australia be taken into consideration in connection with the qualifying period of residence under the Nationality Act 1920-19221

In this connection your attention is invited to the opinions given by you on 14 August 1919 and 24 March 1920, in connection with the Naturalization Act 1903-1917 in the case of A.B., and to the opinion of 19 March 1920 in the case of A.B.C.⁽¹⁾

Sub-section (2) of section 7 of the Nationality Act 1920-1922 requires an applicant for naturalization to have resided in the Commonwealth or a Territory for not less than one year immediately preceding the application, and previous residence, either in the Commonwealth or in some other part of His Majesty's dominions, for a period of four years within the last eight years before the application.

Sub-section (6) provides that a period spent in the service of the Crown may, if the Governor-General thinks fit, be treated as equivalent to a period of residence in the Commonwealth.

On 9 August 1904, the then Attorney-General in an opinion with reference to the requirement as to residence in the Naturalization Act 1903, said: T do not think that every temporary absence from the Commonwealth-e.g. a holiday trip to New Zealand or Europe-necessarily breaks the continuity of residence within the meaning of this Act. A man may have a definite residence and yet be absentfrom that residence.⁽²⁾ He expressed the further opinion that the length of the absence, the motive for the absence, and the nature of the establishment (if any) kept up by the applicant during his absence would be necessary factors for the determination.

On 29 September 1904, the then Attorney-General, applying the principles laid down in the earlier opinion, expressed the opinion that where an applicant, being a resident of New South Wales, was temporarily absent on a visit to Europe without any intention of changing his residence, there was no break in the continuity of his residence within the meaning of the Naturalization Act 1903.⁽³⁾

As regards the cases of A.B. and A.B.C. there was not, I think, any departure from the principle laid down in 1904, but the circumstances did not appear to warrant a decision in favour of the applicants.

I have no doubt that the periods of C.'s engagements on the coastal service of Australia may be reckoned as periods of residence in the Commonwealth. The fact that in going from one port in Australia to another port in Australia he at some time went outside the territorial limits of Australia would not, I think, constitute a break in his residence in Australia.

As regards the periods of his engagements on transports between England and France, however, there are not sufficient particulars to determine whether they amount to residence within the meaning of section 7. The question also, I think, arises as to whether C.'s period of service on the transports was a period in the service of the Crown.

As regards the questions asked in the second last paragraph of the Secretary's memorandum, I am of opinion for the reasons stated above in C.'s case that question (a) should be answered in the affirmative. The cases falling within question (b) cannot, I think, be dealt with as a whole, but each case should be submitted as it arises, as its determination will, I think, depend upon the facts of the case.

[Vol. 19, p. 289]

(1) Opinions Nos 922, 973 and 969, respectively. Opinion No. 922 was given by Mr Knowles as Acting Solicitor-General.

(2) Opinion [Vol.4, p. 311] by Mr Higgins not published in Vol.1.

(3) Opinion [Vol.4, p. 362] by Sir Josiah Symon not published in Vol.1.