JusT Cogens

Are British Subjects ‘Subjects of the Queen’ in Australian Constitutional Law?

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By Jing-Zhi Wong

 

The meaning of ‘British Subject’ has evolved a number of times over the centuries, in part due to the fluidity of the relationship between the Crown and its possessions abroad. From time immemorial, common law provided that every person born in any territory under the sovereignty of the Crown was an English, and later British Subject. When the common law did not recognise children of English/British Subjects born overseas or aliens wishing to acquire subject status, statutory remedies applied to ‘naturalize’ them,[1] as if they were ‘natural born’ subjects. ‘Subject’ status was the means of defining persons joined by a common allegiance. Those who owed allegiance to the Crown were the Crown’s subjects.[2]

For natural-born subjects, allegiance to the monarch is perpetual by virtue of being born into it. Blackstone posits two species of allegiance – natural and local.[3] For the former, a monarch was always under a constant tie to protect his/her natural-born subjects at all times and at all locations. Thus, allegiance due to him/her was equally and unequivocally universal and permanent. For aliens, allegiance is due for as long as ‘he continues within the king’s dominion and protection’.[4] Blackstone further posits that allegiance is a debt of gratitude; for as long as the one affords protection, the other will demean himself faithfully.[5] Corollary, no subject of the Crown was an ‘alien’ within any part the Empire under the sovereignty of the Crown.

Blackstone’s view reflects the decision taken in Calvin’s Case.[6] Calvin was born in Scotland, a century before the passage of the Acts of Union 1707 that united Scotland and England into one Kingdom. Although Scotland and England were distinctly separate kingdoms then, the monarch into whose allegiance Calvin was born was King of Scots as well as King of England, and was considered to be a natural-born English Subject. This upheld the notions that allegiance was tied to the person of the king, rather than to the kingdom itself, and that the Crown was one and indivisible throughout. A person who owed allegiance to the Crown was a ‘subject of the Crown’ and a ‘British Subject’ throughout the British Empire. By this reasoning, a person, whether born in the UK or Australia, would have been a natural born subject of the Crown (of England, Wales, Scotland, Australia, Canada together and so on).

The Australian Constitution makes reference to ‘subject of the Queen’.[7] For some time after federation (1900), Australia remained a dominion of the British Empire and the terms ‘British Subjects’ and ‘subjects of the Queen’ were essentially synonymous in Australia. In fact, Australian citizens were British Subjects. But with Australia’s gradual move towards achieving international status as an independent nation from 1930s to 1980s, do British Subjects still remain ‘subjects of the Queen’ in Australia in this day and age?

The legal position advanced in Calvin’s Case persisted until 1926, or at the latest, 1949. The Balfour Declaration of 1926 declared the UK and the Dominions to be:

… autonomous Communities within the British Empire equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations.[8]

Further, the passing of the Statute of Westminster 1931 effectively established the legislative independence of the dominions from the UK – embodying principles of equality and common allegiance set out in the Balfour Declaration.[9] This gave Australia the independence to legislate on its own citizens when it ratified this statute.[10]

Under UK law, the British Nationality Act 1948 altered the meaning of ‘British Subject’ by introducing citizenship within the British Empire.[11] British Citizenship was restricted to the United Kingdom and its Crown Colonies (CUKC), omitting the dominions including Australia. While His Majesty remained the constitutional monarch in these Dominions, the Act reclassified them as ‘commonwealth countries’.[12] Although the term ‘British Subject’ was an overarching uniting class that applied to both citizens of commonwealth countries and CUKCs, these events reflected an increasingly fragmented British Empire, and the emergence of Australia as an increasingly independent sovereign nation.[13]

Australian Parliament enacted its own citizenship laws in 1948,[14] which further altered the meaning of ‘British Subject’. While an Australian Citizen was a ‘British Subject’, he/she was only so by virtue of possessing Australian citizenship, even though he/she may be a ‘natural-born’ British Subject under UK law. This reflected the evolving political and constitutional relationship between the United Kingdom and Australia, which furthered the notion of an indivisible Crown increasingly obsolete, and with it the concept that ‘no subject of the Crown was an “alien” within any part of His Majesty’s dominions’ outdated.

By 1959, Australia was held to be an independent Commonwealth country, separate from the British Empire.[15]

British Subject status was radically altered by the British Nationality Act 1981 – it practically eradicated ‘British Subject’ status in UK Law. This Act provided that no person is a British Subject except for a small number of otherwise stateless nationals.[16] On a similar note, Australian Parliament repealed British Subject status from Australians in 1987 to reflect Australia’s status as an independent nation.[17]

These developments reflect a marked departure from Blackstone’s view – in that a common allegiance no longer gave effect to a common substantive nationality. In Australia, the High Court in Nolan held:

[while] there is only one person who is the Sovereign, … in matters of law and government the Queen of the United Kingdom … is entirely independent and distinct from the Queen of (e.g.) Canada or Australia. … References to ‘subject of the queen’ in the Australian Constitution … are interpreted as references to a subject of the queen in right of Australia.[18]

The UK Courts reiterated the view in Nolan. Lightman LJ upheld the rule in the Australia Acts, that Her Majesty, when acting in respect of Australia, has a distinct and different constitutional role from that which she enjoys as Queen of the United Kingdom.

[W]hen HM the Queen is exercising her functions under the [Australian] Constitution; she is acting pursuant to Australian law. … It is not for the United Kingdom courts to enter the field proffering its view as to the proper interpretation of the Constitution.[19]

So, are ‘British Subjects’ subjects of the Queen in Australia today? Well, from the reasons above, persons who owe allegiance to the Queen’s person by reason of citizenship of some other nation apart from Australia are, contrary to the position taken prior to 1949, not ‘subjects of the queen’ in Australia for the purpose of constitutional law.


Jing-Zhi (Benjamin) Wong is an Engineering Science and Law and Society major at The University of Western Australia. He is also the incoming Secretary of the Club in 2018. God save the Queen!

[1] De Natis Ultra Mare (1350) 25 Edw III c 2; Laurie Fransman, Fransman’s British Nationality Law (Fourmat Publishing, 1989) 28-31.

[2] Ibid, 24-6.

[3] William Blackstone, Commentaries on the Laws of England (Dawsons, first published 1765, 1966 ed) vol 1, 356-9.

[4] Ibid.

[5] Ibid.

[6] Calvin’s Case (1608) 7 Co Rep 1a.

[7] Australian Constitution, ss 34(ii), 117.

[8] Museum of Australian Democracy, Balfour Declaration 1926 (Imperial Conference) < https://www.foundingdocs.gov.au/resources/transcripts/cth11_doc_1926.pdf>.

[9] Statute of Westminster 1931 (Imp).

[10] Statute of Westminster Adoption Act 1942 (Cth).

[11] British Nationality Act 1948 (UK).

[12] British Nationality Act 1948 (UK) s 1.

[13] Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178, 184.

[14] Nationality and Citizenship Act 1948 (Cth).

[15] Re Xenophon & Ors [2017] HCA 45, [129].

[16] British Nationality Act 1981 (UK) ss 30, 31.

[17] Australian Citizenship Amendment Act 1984 (Cth).

[18] Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178, 184-6; R v Foreign Secretary; ex parte Indian Association of Alberta [1982] QB 892.

[19] Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch), [16].

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