Opinion Number. 265



Key Legislation

CONSTITUTION, s. 34 : NATURALIZATION ACT 1903, ss. 4, 5, 8, 9, 10, 11

The Secretary, Department of External Affairs
  1. The Secretary of State for the Colonies has asked for the views of the Commonwealth Government on the recommendations of the Inter-departmental Committee appointed by the Secretary of State for the Home Department with respect to the laws relating to naturalization (1901).
  2. [Matteromitted.]
  3. The main questions on which it appears desirable to report are:
    1. The question as to the effect of Imperial and local naturalization respectively-and the area over which they should operate.
    2. The question of policy, from a Commonwealth standpoint, as to the status in the Commonwealth of persons naturalized in the United Kingdom or in other British possessions.
    3. The bearings of existing Commonwealth legislation upon the proposals of the Committee.


  4. I suggest that the general principle be assented to that naturalization should confer the status of a British subject throughout the British Dominions (saving the rights of British possessions to provide in addition for 'local naturalization') and that the Government of the part of the King's Dominions in which the conditions of residence are fulfilled should have power to grant such naturalization (Report, paragraphs 28, 30).
  5. The scheme proposed by the Committee for this purpose is outlined in paragraph 31 of the Report. It is not quite clear from that paragraph how far the effect of naturalization, as regards dependents of the person obtaining a certificate, would be governed by the proposed Imperial Act, and how far by local laws, e.g.:
    1. Certificate granted in a possession-what law would govern the status of dependents (a) in that possession, (b) in another possession, (c) in the United Kingdom?
    2. Certificate granted in the United Kingdom-what law would govern the status of dependents in a British possession?
  6. Other cases may be suggested in which it is not clear how far it is proposed that the Imperial law, and how far the local law, should apply, e.g. status of widow or divorced wife, children of widow on her remarriage, etc.
  7. To carry out the general principle that naturalization should confer the status of a British subject everywhere, it would appear that where a certificate of British naturalization is given to a person anywhere, the status of dependents should everywhere be governed by the Imperial Act. This would practically mean that only the conditions and mode of naturalization would be governed by the local law; the effect, both as to the holder of the certificate and as to other persons, by Imperial law.
  8. The provision however that the effect of naturalization should be governed by the Imperial law should, it is submitted, be subject to the qualification that the effect in any British possession may be limited by the law of that possession. E.g. it ought to be clear that the law of a possession need not confer the same rights upon a naturalized person as upon a natural-born subject, or even confer the same rights upon all naturalized persons. Cf. Commonwealth Constitution, section 34, under which a naturalized person is not, until five years after naturalization, eligible as a member of Parliament; and section 8 of the Commonwealth Naturalization Act 1903, which distinguishes between the rights of natural-born and naturalized subjects.
  9. It is therefore suggested that the provision recommended in paragraph 32 of the Committee's Report-that nothing in the Imperial Act should affect the power of the legislature of a possession to confer upon an alien, within the possession, any of the rights of a natural-born British subject-should be supplemented by a provision that nothing in the Imperial Act should affect the power of the legislature of a possession to deny to a naturalized person, within the possession, any of the rights of a natural-born British subject. This is specially important in regard to political rights.
  10. It also appears to be worthy of consideration whether it would not be practicable to dispense with the Order in Council proposed in paragraph 31, and to provide that in any possession, where an alien has satisfied mutatis mutandis the conditions required by Imperial law, the Governor, if authorized by the law of the possession, may grant a certificate of naturalization. According to the scheme proposed in the Report, His Majesty could not certify that the conditions required by the Commonwealth Naturalization Act 1903 (two years' residence) were 'substantially similar' to those required by Imperial law; but with the modification here suggested, the certificate could be granted if the applicant had in fact satisfied the Imperial conditions mutatis mutandis.
  11. (B)

  12. Provided that (as suggested in paragraph 8 above) the Commonwealth Parliament retains the power to limit the effect of the status, within the Commonwealth, of persons naturalized, there appears to me to be no objection, from a Commonwealth standpoint, to persons, who have been naturalized in any part of the British Dominions, enjoying in the Commonwealth the status of British subjects.
  13. (C)

  14. There are certain provisions of the Commonwealth Naturalization Act 1903 to which attention may appropriately be directed in connection with this subject.
    1. Section 4 naturalizes the holders of State certificates of naturalization (issued before 13 October 1903) but it does not naturalize their dependents. These apparently retain, in the State concerned, the status of persons naturalized under State law, but elsewhere in the Commonwealth are aliens.
    2. Section 5 does not permit aboriginal natives of Asia, Africa, or the Islands of the Pacific (excepting New Zealand) to apply for a Commonwealth certificate. (Under the scheme proposed, such persons if naturalized elsewhere would in the Commonwealth have the status of naturalized persons.) The section (owing to amendment in the Senate) does not prevent married women and infants from applying.
    3. The section only requires continuous residence for two years immediately preceding application. See paragraph 10 above.

    4. Section 8 distinguishes between the rights, powers and privileges of natural-born British subjects and those of naturalized persons.
    5. Section 9 provides that an alien woman who marries a British subject shall be deemed to be naturalized-but apparently only when the husband is a British subject at the date of the marriage. There is no provision (owing to amendment in the Senate) that a British woman who marries an alien becomes an alien.
    6. Section 10 differs somewhat from section 10 (5) of the Imperial Act.
    7. Section 11 embodies the recommendation made in paragraph 39 of the Committee's Report.

[Vol. 5, p. 401]

(1) This opinion, originally written on 12 October 1904, was endorsed 'I see no reason to differ from the above' by Mr Isaacs, Attorney-General, and forwarded to the addressee on the above date.