Opinion Number. 431

Subject

DUAL NATIONALITY STATUS OF PERSON BORN IN AUSTRALIA OF ALIEN PARENTS : EXTENT OF BRITISH PROTECTION : LIABILITY TO PERFORM MILITARY SERVICE IN FOREIGN STATE

Key Legislation

THE NATURALIZATION ACT 1870 (IMP.), s. 4

Date
Client
The Secretary, Department of External Affairs

On 31 January 1911(1) I gave the opinion to the Secretary, Department of Defence, that the two sons of Mr A.B. were British subjects, and liable to military training under section 125 of the Defence Act, and that the fact that French law might regard them as French subjects was immaterial.

On 16 August 1911 Mr B. sent the following letter to the Department of Defence:

One of my sons, C, born at Melbourne on 18 August 1891, now 20 years of age, is claimed by the French Government to fulfil his military obligations as a French subject born to French parents.

On the other hand I have been informed that he is considered by the Commonwealth as a British subject-he must be one or the other, and cannot belong at the same time to both countries.

The French Consul states that, if at 21 years of age he is choosing the French nationality, he will become free of all obligations towards Australia.

If, on the contrary, he chooses to be an Australian citizen, then he will not be able to put his feet on French soil without being subject to seizure from the military authorities.

Surely there is something abnormal in that statement, as in all fairness reciprocity at least should exist.

Now, my son wishes to decide for the country he has been born in. If he is really a British subject, must he naturalize again as such? If he is British, whether naturalizing again or not, can you protect him in the case of his travelling through France, or when spending some time there?

I would be very much obliged if you could give me a solution to this delicate matter.

P.S. I may add that, according to our Consul, any agreement between French and English Governments does not apply to Australia, and that people born in Australia are considered by the French Government as Australian and not British subjects.

Such being the case, could the boy naturalize himself English whilst living in Australia?

This letter was referred to the Secretary of the Department of External Affairs, who has forwarded the papers to me for advice with the following minute thereon:

Referred, for favour of advice. Attention is invited to Lawrence on International Law, 1900 edn p. 192. It would appear, according to the principles there enunciated that:

  1. Mr C.B. is a natural-born British subject;
  2. he is also a French subject according to the law of France;
  3. so long as he remains outside France he is entitled to British protection;
  4. if he returns to France he is subject to French law, including the obligation for military service.

Attention is also invited to the French law respecting nationality (Hertslet, Vol. XVIII, p. 412).

I am not aware of the Consul's authority for the statement attributed to him in the p.s.

The four principles stated in the minute of the Secretary of the Department of External Affairs are, in my opinion, a substantially correct statement of the law.

Mr B., by virtue of his birth in British dominions, became a British subject according to British law, and by virtue of his parents being French, a French subject according to French law.

If he wished to renounce his British nationality he can do so in the manner provided by section 4 of The Naturalization Act 1870 (Imperial).

From a perusal of the French Civil Code it would appear that although Mr C.& may under certain circumstances lose his French nationality, he would still remain liable to military service if he should go to France.

With regard to the statement of the French Consul contained in the postscript to the letter, I also am unaware of the authority for such a statement, but presumably this is the view taken by the French authorities.

[Vol. 9, p. 190]

(1)Opinion No. 397.