Opinion Number. 922

Subject

NATURALIZATION WHETHER SERVICE ON SHIP OWNED BY COMMONWEALTH AMOUNTS TO RESIDENCE IN COMMONWEALTH: WHETHER SUCH SHIP IS PART OF COMMONWEALTH FOR PURPOSES OF NATURALIZATION LEGISLATION

Key Legislation

CONSTITUTION, covering cl.5: NATURALIZATION ACT 1903, s. 5

Date
Client
The Secretary, Department of Home and Territories

The Secretary to the Home and Territories Department has forwarded for advice the following memorandum:

I have to state that an application for naturalization has been received from an alien who is a seaman. He called at the Department with certain documents which showed as follows:

Ships Date
Newlyn (English) signed England and paid off there 1904
London (South Wales) " " " " " " 1909
Castlemoor (London) " " " " " " 1907

Applicant sailed in other vessels, the last of which reached Australia in January 1917. He then obtained employment on the Australbrook (Commonwealth boat) and has been connected with her ever since.

Applicant signed and re-signed in England on several occasions. In 1917 he signed off in Australia and immediately signed on in Australia with the Australbrook.

I shall be glad if you will advise me whether the above facts amount to residence in the Commonwealth (Naturalization Act, section 5). Section 5 of the Naturalization Act 1903-1917 provides as follows:

5. A person resident in the Commonwealth, not being a British subject, and not being an aboriginal native of Asia, Africa, or the Islands of the Pacific, excepting New Zealand, who intends to settle in the Commonwealth, and who-

  1. has resided in Australia continuously for two years immediately preceding the application; or
  2. has obtained in the United Kingdom a certificate of naturalization or letters of naturalization,

may apply to the Governor-General for a certificate of naturalization.

The question for determination appears to be whether the Australbrook by reason of being a ship owned by the Commonwealth Government, and, I understand, registered in Australia, is part of the Commonwealth for the purposes of section 5 of the Naturalization Act.

There is nothing in the Act itself indicating such a ship should be regarded as part of the Commonwealth for the purposes of the Act.

Covering clause 5 of the Constitution provides, inter alia, that 'the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth'. That provision does not, however, in my opinion, make such British ships part of the Commonwealth, even if they are the property of the Commonwealth Government and registered in Australia.

Apart from statute, I am of opinion that a Commonwealth ship cannot be regarded as part of the Commonwealth, and the member of the crew of such a ship cannot claim that he has resided in Australia by reason only of the fact that he has been such a member.

In my opinion the facts set forth in the above memorandum do not satisfy the requirements of section 5 of the Naturalization Act as to residence in the Commonwealth.

[Vol. 16, p. 227]