The Commonwealth National

The Commonwealth National: Political Status, Birth, and the Limits of Legislative Power

Nemo potest exuere patriam.

No man can cast off his native land.

Introduction

Most Australians accept without question that they are “Australian citizens” – a status defined by statute, administered by a government department, and evidenced by a certificate or a passport. Few pause to ask when that status was created, how it attached to them, whether they ever voluntarily assumed it, or what happened to the political status they held before it existed.

These are not frivolous questions. They engage the history of Australian nationality law, the principles established by the House of Lords in Udny v Udny (1869) on the distinction between political and civil status, and a genuinely unresolved question about the limits of parliamentary power to alter the political condition of men and women without their participation.

This article sets out the history, examines the legal principles, and states the argument fairly – without overclaiming, and without pretending that what is an argument is a settled legal position.

Before 1949 – there was no Australian citizen

Until 26 January 1949, there was no such thing as an Australian citizen. The term did not appear in any legislation, including the Australian Constitution. Every man and woman born in Australia was, simply and only, a British subject. That was the political and civil condition attaching at birth by operation of law – not by any voluntary act of the individual.

When Australians travelled abroad before 1949 they travelled on British passports. When they swore allegiance, it was to the Crown. Their status in the international community was that of British subjects – nationals of the broader Commonwealth of which Australia was a self-governing part.

The Nationality and Citizenship Act 1948 – automatic classification

The Nationality and Citizenship Act 1948 (Cth) came into force on 26 January 1949. It created Australian citizenship for the first time – the first occasion the term appeared in any Australian legislation.

The Act’s primary provisions operated automatically and without the voluntary participation of the men and women affected:

All men and women born in Australia, and all British subjects resident in Australia for five years prior to 26 January 1949, were automatically classified as Australian citizens by operation of the Act. No ceremony was required. No oath was taken. No application was made. The classification was imposed by law.

Anyone born in Australia on or after 26 January 1949 was automatically an Australian citizen by birth under section 10 of the Act.

Any man or woman defined as an Australian citizen also became or retained the status of British subject. The two statuses coexisted. Being an Australian citizen did not displace Commonwealth national status – it sat alongside it.

Arthur Calwell, introducing the legislation to parliament, was explicit: Australians would remain British subjects while also becoming Australian citizens. The new Australian citizenship was an addition to, not a replacement of, the existing Commonwealth status.

The changes of 1969 and 1973

In 1969, legislative amendments meant that Australian citizens technically ceased to be British subjects but retained “the status of British subjects.” A distinction that made little practical difference at the time.

In 1973, the Act was renamed the Australian Citizenship Act 1948. The 1973 amendments removed the preferential treatment previously afforded to British subjects and applied equal requirements to all applicants for Australian citizenship. From this point, citizens of Commonwealth countries retained British subject status – but the preference that status had conferred in the Australian system was progressively removed.

1984 – the removal of British subject status

The Australian Citizenship (Amendment) Act 1984 (Cth) made the decisive change. It altered the law so that Australian citizens would no longer be considered British subjects. From that date, British citizens arriving in Australia could no longer vote until they had become Australian citizens.

This change was made by legislative act. The men and women whose status was altered were not consulted. They did not apply for the change. They did not volunteer for it. The political status that had attached to them at birth – Commonwealth national, British subject – was removed from them by parliamentary decision, without their participation.

It is also worth noting that under British law – specifically the British Nationality Act 1981 (UK) – Australian citizens remain Commonwealth citizens to this day. The category of Commonwealth citizen persists under British law regardless of what Australian domestic legislation says. Whether a man or woman born in Australia before 1984 is a Commonwealth citizen remains a question with different answers depending on which legal system is being consulted.

Udny v Udny (1869) and the distinction between political and civil status

The principles established by the House of Lords in Udny v Udny (1869) LR 1 Sc & Div 441 bear directly on these questions, though they must be applied carefully and honestly.

Lord Westbury identified two distinct legal conditions attaching to every man at birth.

The first is political status – the condition by which a man becomes the subject of a particular country, bound by the tie of natural allegiance to his native land. Lord Westbury: “The political status may depend on different laws in different countries.”

The second is civil status – the condition by which a man is ascribed the character of a citizen of a particular country, with the municipal rights and obligations that follow. Civil status is governed by the principle of domicile.

Lord Westbury was emphatic that these two categories must never be confused: “To suppose that for a change of domicil there must be a change of natural allegiance is to confound the political and civil status, and to destroy the distinction between patria and domicilium.”

The Lord Chancellor stated the indelibility of political status plainly: “A man may change his domicil as often as he pleases, but not his allegiance. Exuere patriam is beyond his power.”

The case established that a man himself cannot shed his political status – his allegiance and his native condition – by his own act. What the case did not address is whether a parliament can alter his political status by legislative act, without his participation.

The argument examined

The argument that follows is stated as an argument – it is internally coherent, it is historically grounded, and it engages serious legal questions. It has not been tested and accepted in any Australian court. It is presented here for information and as a basis for further examination.

The argument is this:

A man born in Australia before 1984 – and particularly before 1973 – was born a British subject and Commonwealth national. That political status attached at birth by operation of law. It was not voluntarily assumed and, under the principles of Udny v Udny, it cannot be voluntarily shed by the man himself.

He was subsequently classified as an Australian citizen by the 1948 Act – automatically, without any voluntary act on his part. That automatic classification is a civil status imposed by legislative act, not a freely chosen condition.

In 1984, his British subject status was removed – again by legislative act, without any voluntary act or participation on his part. His political status was altered by parliament in the same way it was originally assigned: without him.

If political status is as indelible as Lord Westbury said – if a man cannot by his own act shed his allegiance and native condition – then the question becomes whether a parliament can do to him what he cannot do to himself. Can a legislature, without the man’s participation, strip him of the political status that attached at birth and replace it with a different civil classification?

The 1984 amendment was not a re-classification of a status voluntarily assumed. It was the removal of a status that had attached by birth and had never been voluntarily altered. Under Lord Westbury’s framework, political status – allegiance, the condition of the native – is the one thing a man cannot shed at will. The question the 1984 amendment raises is whether the parliament can shed it for him.

The further point:

A man born before 1973 who has never voluntarily sworn new allegiance – who was automatically classified as an Australian citizen without any act of his own, and from whom British subject status was removed without any act of his own – has a coherent argument that his de jure political status remains that of a Commonwealth national. He did not choose to become an Australian citizen in the post-1984 statutory sense. He was made one. And the status he was born with – Commonwealth national, British subject, natural-born subject of the Crown – was never voluntarily surrendered.

Under Udny v Udny, what cannot be shed by the act of the man requires something more than a parliamentary amendment to extinguish entirely. The political condition of the native – the allegiance that attaches at birth – is described by the House of Lords as belonging to a different category from civil status. It is not simply a statutory classification that a later statute can revoke.

What this does not mean

This argument does not mean a man born before 1973 is not subject to Australian law. Domicile – civil status – is determined by residence and intention, and a man domiciled in Australia is subject to Australian law as his personal law. Lord Westbury made this clear: political status and civil status are distinct and operate in different spheres. A man may hold one political status while his civil affairs are governed by the law of the place where he has chosen to live.

This argument does not exempt any man from the laws of Australia. It does not provide a basis for avoiding any legal obligation. It does not constitute legal advice of any kind.

What it does is raise a genuine and unresolved question: whether the political status of a man born as a Commonwealth national – a status attaching at birth, never voluntarily assumed and never voluntarily surrendered – survives a parliamentary amendment that purported to remove it without his participation.

The honest position

The verified legislative history establishes that:

British subject status attached at birth to every man born in Australia before 1949, and was automatically assigned to those born after 1949 under the 1948 Act.

That status was removed in 1984 by legislative act without the voluntary participation of the men and women affected.

Under British law, Australian citizens remain Commonwealth citizens to this day.

The Udny v Udny distinction between political status – which Lord Westbury described as indelible – and civil status – which changes with domicile – raises a question that Australian courts have not resolved: whether parliamentary legislation can alter the political condition of a man born as a Commonwealth national without his participation.

The argument that a man born before 1973, who has never voluntarily sworn new allegiance, retains as his de jure political status the Commonwealth national status with which he was born is coherent, historically grounded, and engages serious legal principles. It is not a frivolous argument. It is not a settled legal position.

It is an argument worth making.

Nemo potest exuere patriam. No man can cast off his native land. Whether a parliament can cast it off for him – and whether a man who was never asked may simply decline to accept the removal – remains an open question.

This article is published for information and educational purposes only. Nothing in it constitutes advice in law. Men and women who wish to rely on any of the arguments set out here should examine the sources cited and seek independent counsel.

The Commonwealth National