Opinion Number. 709

Subject

NATURALIZATION WHETHER CERTIFICATE OF NATURALIZATION CAN BE ISSUED TO AUSTRALIAN-BORN WIFE OF ALIEN WHERE WIFE IS DEEMED BY IMPERIAL LEGISLATION TO TAKE HUSBAND'S NATIONALITY

Key Legislation

NATURALIZATION ACT 1870 (IMP.), s. 10: BRITISH NATIONALITY AND STATUS OF ALIENS ACT 1914 (IMP.), s. 10

Date
Client
The Secretary, Department of External Affairs

The Secretary, Department of External Affairs, has forwarded, for advice, the following memorandum:

  1. In 1910, the Attorney-General's Department advised that there would be no objection to the issue of a naturalization certificate to an Australian woman who is the wife of an alien; also that she could be granted a certificate, notwithstanding that her husband was alive at the time.
  2. Since that time it has been the practice to naturalize such persons. Now, this Department is advised by the Secretary of the Attorney-General's Department that the British Nationality and Status of Aliens Act 1914 (Imperial), except Part II thereof, is in force in the Commonwealth.
  3. According to section 10 of Part III of the British Act, the wife of an alien is deemed to be an alien.
  4. As the Commonwealth is readmitting to British nationality Australian women married to aliens including even enemy aliens, it appears possible that some conflict may arise as to their status.
  5. Submitted that the Attorney-General be asked to advise whether in view of section 10 referred to the Department has power to naturalize wives of aliens.

Section 10 of the British Nationality and Status of Aliens Act 1914, amongst other things, provides that: 'The wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien'.

Section 10 (1) of the Naturalization Act 1870 (British), repealed by the first-mentioned Act, amongst other things provided that: 'A married woman shall be deemed to be a subject of the state of which her husband is for the time being a subject'.

The effect of these provisions appears to me to be the same, and the reasoning of Mr Attorney-General Hughes's opinion(1) appears to be as applicable to the latter as to the former Act.

In my opinion, therefore, a certificate of naturalization may be granted to the wife of an alien.

[Vol. 14, p. 335]

(1)Opinions Nos 386, 391.