Opinion Number. 682



Key Legislation


The Secretary, Department of External Affairs

The Secretary, Department of External Affairs, has forwarded the following letter from Mr B.A. Levinson to the High Commissioner for advice:

Since the commencement of the war my firm has had on several occasions to advise clients as to the efficacy in this country of Australian naturalization. At the time when the order for the registration of Germans and Austrians was promulgated, I took the responsibility of advising clients who possessed Australian Letters of Naturalization that they should refuse to allow themselves to be treated as aliens. I found that the Home Office was content to except such persons from the order, but it would not admit that the exception was a matter of right. Later I had to raise the question in relation to passport matters. On another occasion the point was argued before the Master of the Supreme Court on an objection to such a person suing in the courts. The difficulty was overcome, and the subject matter of the argument was discussed by the Master himself in an article in the Law Times. But of course the question was not settled, and recently it has arisen again in relation to the recent Naturalization Act.

A client who was born in Germany some fifty years ago who was naturalized in Victoria nearly thirty years ago, feeling uneasy as to the effect of the colonial naturalization, instructed us to make his position more certain. We applied to the Home Office for the grant of a certificate under either section 4 or under section 6 of the British Nationality and Status of Aliens Act 1914. They have replied that he is not eligible for the grant of such a certificate; that the colonial grant has effect only in that part of the Empire in which it was granted, and it does not confer on the grantee the rights of a British subject in the United Kingdom; that the only course for the matter to follow is to make a substantive application for a certificate of naturalization here.

That course has, however, two very material objections. In the first place the applicant would have to describe himself as an alien of German nationality. Secondly, it is well known that except in very limited exceptions, no such application is being granted at the present time.

The result of making such an application, therefore, would be that the individual would stamp himself as an alien of German nationality, and would be left in that position indefinitely.

As a matter of fact, however, he indignantly insists that he is not an alien, and that he is not of German nationality. He has sworn allegiance to the British Crown, and he has been received as a British subject. It is impossible so to construe the matter as to hold that the oath only binds within the limits of the State of Victoria, and that he is a British subject only while he is within the State of Victoria and ceases to be such immediately he passes beyond the three-mile limit. That position, it is contended, entirely neglects the fact that naturalization is itself a status, and that status is fixed. It is of course for the local law to decide whether the status has been effectively given, and I need not in this connection refer you to authorities to show that the personal law, the law of the individual's domicile, determines questions of status. Consequently where an individual has been naturalized in a State before the Federation or by the Commonwealth afterwards, he has been admitted into British citizenship. The practical result is that he is no longer an alien, and it is an insult to an Australian citizen that he-an Australian citizen and a British subject according to the law of Australia-should be treated as an alien and as a hostile one.

Against this contention is cited section 16 of the Naturalization Act 1870, which section is practically re-enacted in the Statute of 1914. That section is an awkward one to get over but it is not insuperable. Take for example the Commonwealth Constitution section 51, which authorises the Commonwealth Parliament 'to make laws for the peace, order, and good government with respect to (xix) naturalization of aliens'. There, there is an Act giving authority to the Australian Parliament to legislate as to naturalization. And naturalization can only be, for any part of the British dominions, the conferring of the British nationality upon aliens. So with regard to the Victorian Constitution, full powers are given to the Victorian legislature within the limits of Victoria. When individuals are married under the Victorian Marriage Act, they are not married only within the territorial limits of the State. A status is created which persists elsewhere. Section 16 of the Act of 1870 is really a confirmatory provision, it practically says only that the Statute is not meant to be an Imperial one in the sense of applying all through the Dominions without regard to local conditions and matters. And when it declares that the local Statute is to have effect within the local limits it is quite sufficient, in accordance with my argument, to give that Dominion or State the power to grant British citizenship. You will note that the section speaks of 'imparting to any person the privileges ... of naturalization'. Naturalization is not defined, but section 7 states what is the effect of a certificate of naturalization under the Act. It will be noticed that upon a strict reading of this section 7 (paragraph 3) the certificate is only operative in the United Kingdom, so that a naturalized subject under the Act of 1870 might be an alien in Australia. Such a position is an impossible one from the point of view of convenience and of considerations of status and nationality.

An Australian myself, I feel that the matter is one which very closely affects Australians. The value of Australian citizenship is brought into issue. If an Australian citizen can be treated as a hostile alien in England, one questions the reality of Imperial unity. As the subject has already affected several of my firm's clients, and as it is a matter of general interest, and as it appears to me of wide importance, I venture to address myself to you upon it, and with your permission, would respectfully suggest that the point is one as to which your personal and official representation to the proper authorities would be of great weight and value.

The views against which Mr Levinson protests are the views of the Foreign Office and the Home Office on the question of the effect of colonial certificates of naturalization, and correspond with the views expressed in a number of opinions given by this Department; and I see no reason for departing from those views as to the present effect of the law.

[Vol. 14, p. 226]