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Tuesday, 11 October 1910

Senator PEARCE (Western AustraliaMinister of Defence) . - I hesitate to discuss the question of Australian nationality, as I may induce Senator St. Ledger to argue for hours on the question of domicile, but, since the question has been raised by the amendment, it is necessary that I should give some reasons for op posing the extension of this proviso to a British citizen.

Senator Sayers - I thought the honorable senator was going to accept the amendment?

Senator PEARCE - No; I said the honorable senator might move it ; I did not say I would accept it. There is no doubt that a British subject born outside of Australia is not an Australian citizen. That has been clearly laid down by the High Court in the case of Potter v. Minahan, on an appeal from a Court of Petty Sessions in Victoria.

Senator WALKER (NEW SOUTH WALES) - Minahan is an Irish name.

Senator PEARCE - Minahan, in the case quoted, was a half-caste Chinese. The question at issue was whether Minahan was or was not an immigrant within the meaning of the Immigration Restriction Act. If he was an Australian-born citizen, obviously he could not be an immigrant. The High Court held that he was not an immigrant, because he was born in Australia. Although he had left Australia for twentyfive years, he was held to be an Australian citizen. The judgment of the High Court is summed up in these words -

A person whose permanent home is in Australia and who therefore is a member of the Australian community, is not, on arriving in Australia, from abroad, an immigrant in respect of whose entry the Parliament of the Commonwealth can legislate under the power conferred by section 51 of the Constitution to make laws with respect to immigration, and therefore such a person is not an immigrant within the meaning of the Immigration Restriction Acts 1901- 1905.

The Chief Justice, in delivering judgment, said, amongst other' things -

The doctrines of nationality and domicil are applied for specific purposes, and certain rights and consequences depend upon and follow from them. But I do not think that the present case can be determined by the mere application of the rules either of nationalities or of domicil. There is no doubt that a British subject coming to the Commonwealth from another part of the British Dominions may be an immigrant within the meaning of the Constitution.

He continued to argue in that way, and it is clear from his judgment that a British subject is not necessarily a citizen of the Commonwealth.

Senator Vardon - What exactly is an Australian citizen?

Senator Chataway - The half-caste Chinese referred to did not claim to be an Australian citizen.

Senator PEARCE - He was held by the Court not to be an immigrant. As Senator Vardon appears still to be uncon vinced, perhaps I had better read a little more of what the Chief Justice said, since he described what is an Australian citizen. He went on to say -

But anterior, both in older of thought and in order of time, to the concepts of nationality and domicil, is another, upon which both are founded, and which is, I think, an elementary part of the concept of human society, namely, the division of human beings into communities. From this it follows that every person becomes at birth a member of the community into which he is born, and is entitled to remain in it until excluded by some competent authority. It follows also that every human being (unless outlawed) is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit. In the case of Musgrave v. ChunTeeongToy (1) it _ was held that an alien (though an alien friend) has no legal right to enter a country of which he is not a native. Yet, unless he is outlawed from human society, he must be entitled to enter some community. So, by process of exclusion, we are certain that there is at least one part of the world to which every human being, not an outlaw, can claim the right of entry when he thinks fit.

On that argument, an Australian citizen by birth continues to be an Australian citizen unless he loses the right, as the result of the action of some competent authority. That, I take it, would be a law of the Commonwealth dealing with citizenship, and citizenship I take to be the right to take part in the government of the country. That is conferred by the Franchise and Electoral Acts and by the Naturalization Act. We, therefore, may conclude that those who are eligible to exercise the rights of citizenship, whether born in the country, or arriving in it later, are Australian citizens. A British seaman would not be eligible to exercise the rights of citizenship in the Commonwealth until he had been here for three months. I do not think we should accept the amendment, because the British Imperial Parliament legislates for British seamen, and their legislation follows him into any of the British Dominions. It is not for us to legislate for the British seaman. It is sufficient that we should legislate for those for whom we are authorized to legislate.

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