Opinion Number. 730



Key Legislation


The Secretary, Department of External Affairs

A.B.C. was born in Noumea of German parentage. For a number of years he resided in Australia and in October 1913 became naturalized under the Naturalization Act 1903.

Immediately after obtaining his certificate of naturalization he returned to Noumea for business reasons. He is now desirous of returning to Australia in connection with his business, but the British Consul refuses to grant him a passport on the ground that he is not a British subject.

The Secretary, Department of External Affairs, desires to be advised as to whether A.B.C. can be regarded as a British subject while resident out of Australia.

By section 8 of the Naturalization Act 1903 a person to whom a certificate of naturalization is granted is in the Commonwealth entitled to all political and other rights and privileges and subject to all obligations to which a natural-born British subject is entitled or subject in the Commonwealth, subject to a condition which is not material to the present case.

The exact meaning and extent of the words 'in the Commonwealth' have never been authoritatively decided, but the better opinion seems to be that these words have a wider meaning than conferring the status of a British subject while resident within the Commonwealth, and have the effect of conferring that status from the point of view of any court or other authority in the Commonwealth that may be called on to deal with any question incident thereto, and this whether the person naturalized be in the Commonwealth or not (see Pitt Cobbett, Leading Cases on International Law, 3rd edn, Part 1, p. 181).

As regards the enforcement of rights within the Commonwealth, a naturalized subject is to be regarded as still a British subject whether resident in the Commonwealth or not.

So far I am in agreement with Professor Peden(1).

The right to claim diplomatic protection from His Majesty's representatives in foreign countries is not, I think, a right which can be enforced within the Commonwealth, and does not come within the rule previously laid down.

As a matter of practice diplomatic protection in foreign countries is frequently accorded by His Majesty's representatives to persons naturalized in the Dominions, but it has been distinctly laid down by the Foreign Office that they are only entitled to such protection as a matter of courtesy and not as a right.

I cannot agree with Professor Peden 'that on the reasonable construction of the Naturalization Act 1903, official practice and the views of eminent jurists, the Commonwealth authorities are entitled to claim, through the proper channel, that A.B.C. is to be regarded as a British subject in New Caledonia'. The official practice, as laid down in the Foreign Office circulars does not support such a contention, while the only decided case on the point appears to go no further than to support the views of Pitt Cobbett referred to above.

In my opinion, although Mr C. is entitled to be regarded as a British subject so far as regards the exercise of rights or the carrying out of obligations within the Commonwealth, he is in Noumea only entitled to such diplomatic protection as the British Consul may accord him as a matter of courtesy.

Seeing that the British Consul at Noumea has already on one occasion accorded Mr C. diplomatic protection, there appears from the evidence on the file no reason why the protection should not be granted to Mr C. on this occasion as a matter of courtesy.

[Vol. 14, p. 396]

(1)Challis Professor of Law, Sydney University.