AUSTRALIAN NATIONALITY AUSTRALIAN NATIONALITY: WHETHER AUSTRALIANS HAVE, IN LAW, A NATIONALITY AS DISTINCT FROM A BRITISH NATIONALITY: LEGAL IMPLICATIONS OF CANADIAN AND SOUTH AFRICAN LAWS CONFERRING ON CANADIANS OR SOUTH AFRICANS NATIONAL STATUS DIFFERENT FROM THAT OF BRITISH SUBJECTS: EFFECT IN INTERNATIONAL LAW: POWER OF COMMONWEALTH TO PASS LAWS RELATING TO AUSTRALIAN NATIONALITY
NATIONALITY ACT 1920: CANADIAN NATIONALITY ACT 1921(Can): IMMIGRATION ACT 1927 (Can): UNION NATIONALITY AND FLAGS ACT 1927 (South Africa)
I forward herewith, for such action as you consider appropriate, a copy of correspondence with Mrs B. of Sydney on the question of whether Australians have, in law, a nationality as distinct from a British nationality.
For your information, I append a statement of the position as it appears to me.
In his radio reply Dr. C. stated, inter alia, that Australians have no legal nationality and that there is not an Australian nationality as distinct from a British nationality.
These statements are substantially correct. The Commonwealth Nationality Act defines a British subject as a person who is a natural-born British subject or a person to whom a certificate of naturalisation has been granted. A person not a British subject is an alien. A natural-born British subject is a person born within His Majesty’s dominions and allegiance. The Act does not refer to Australian nationality.
It will thus be seen that Australians, i.e. those born in Australia, are, by virtue of these provisions, British subjects.
There is no legislation which relates to Australian nationality or which gives to Australians as such a nationality apart from British nationality. It is true that Canada and the Union of South Africa have enacted laws which might conceivably be construed as conferring on Canadians or South Africans a national status different from that of British subjects. But it is not possible to clearly indicate the full legal implications of these laws.
By an Act to define nationals which was passed in Canada in 1921 a Canadian national is a British subject who is a Canadian citizen within the meaning of the Immigration Act. That Act defines a Canadian citizen as a person born in Canada, a British subject who has Canadian domicile, or a person naturalised under the laws of Canada. The Immigration Act provides that Canadian domicile can only be acquired by a person having his domicile for at least five years in Canada. Thus a person not born in Canada, though otherwise a British subject, could not attain Canadian nationality until after five years’ residence in Canada.
It is to be noted that the requirements as to domicile apply only to British subjects. An alien apparently could only become a Canadian national in the same manner as he could in all British Dominions become a British subject, i.e. by naturalisation.
In South Africa a ‘Union national’ is, under the Union Nationality and Flags Act 1927, a person born in the Union of South Africa, a British subject who has been continuously domiciled in the Union for two years, or a British subject naturalised in the Union who has been continuously domiciled in the Union for three years.
Legal authorities have not agreed as to the effect of these enactments, i.e. whether a Canadian or South African national would be regarded in other countries as a Canadian or South African subject or as a British subject. It is not easy to say how far the Acts modify national status in international law or whether these Dominion nationals are, outside Canada or South Africa, in any way different from what they were before the passing of such legislation.
The law of nationality is very complex and difficulties have arisen from the conflicting claims of countries to impose their respective nationalities on individual persons. A person has often found that although he was a national or subject of one country while in that country he was treated as a national of another country if he happened to go there. Moreover, nationality is, in many foreign countries, determined by reference to principles which differ widely from those which apply in British countries.
It would be competent for the Commonwealth Parliament to pass legislation similar to the Canadian and South African statutes.
It is, however, a matter of opinion as to whether there would be any advantage to be derived from the passing of such legislation.
[Vol. 36, p. 380]