Opinion Number. 1647

Subject

NATIONALITY POWER TO ENACT THAT aliens arriving in Australia must become naturaliSed within two years after admission: ISSUE OF LIMITED FORM OF NATURALISATION HAVING EFFECT ONLY IN AUSTRALIA: POTENTIAL PRACTICAL DIFFICULTIES

Key Legislation

Nationality Act 1920: Constitution s 51(xix)

Date
Client
The Secretary, Department of the Interior

I am in receipt of your memorandum of the 27th April, 1939, requesting to be furnished with advice and with my views on a proposal for the amendment of the Nationality Act to provide that aliens arriving in Australia must become naturalized within two years after admission.

You state that your Minister realizes that such naturalization would have effect in Australia only, and he asks whether it would be possible to make such a provision in the Act and at the same time leave it open to the applicant to again apply for full naturalization (i.e., naturalization having effect throughout the Empire) when the applicant has resided in Australia the full period at present prescribed in the Act.

In my opinion, the power to legislate with respect to ‘naturalization and aliens’ is wide enough to enable the Commonwealth Parliament to enact legislation of the kind proposed.

With reference to the specific question asked by your Minister, I see no legal objection to the enactment of legislation providing for the issue of a certificate of local naturalization within two years after the admission of the alien and a certificate of naturalization having effect throughout the Empire after the applicant has resided in Australia for the full period which is at present prescribed in the Act.

The only objections to the proposal which I can suggest are that it would constitute a departure from the existing scheme of uniform legislation on this subject throughout the Empire, and that the existence of the two methods of naturalization would, in my view, cause some confusion. The fact that the rights given by this more limited naturalization are limited to Australia would not be generally understood, and many persons so naturalized would probably think that they were naturalized under the Empire scheme. During war time a case occurred in England in which a person of German origin who had been naturalized in Australia under the limited scheme then in force claimed to be a naturalized British subject, but his claim was disallowed by the Courts. I mention this as an instance of the confusion which arose when the only method of naturalization was a limited one. A fortiori the confusion would be the greater when two systems were in force.

[Vol. 32, p. 220]