NATIONALITY

Nationality has been defined as “the status of a natural person who is attached to a state by ties of allegiance”. It is a reciprocal relationship for it involves claims by the national on the State as well as obligations on the part of the national to the State. This comparatively modern concept dates from the French Revolution. Before this the relationship was between the individual and his sovereign; indeed, the New Zealand oath of allegiance is still in this form.

The history of nationality law in New Zealand began with that section in Governor Hobson's Instructions which prevented him from assenting to any ordinance which did not contain a clause suspending its operation until such time as Her Majesty signified her pleasure. This was in keeping with common law which, rather than statute law, provided the authority. Briefly, the common law was that anyone born within the Queen's dominions was a British subject. There were two major exceptions, the children of foreign diplomatic representatives and the children of fathers serving in a hostile occupying army. The children of male British subjects born abroad and any children born in a British ship on the high seas were also British nationals. Except when born in British territory, the children of English women by an alien father were alien, though it is probable that the child of a British father born abroad was also British. According to the common law, British allegiance was permanent and could not be terminated. The law raised no objection to aliens living in the Queen's dominions, but they were permitted neither to own nor to inherit land. These difficulties could be overcome by naturalisation, but this could be done only by an Act of Parliament, “by the assent of the whole nation”.

This was the first problem which the Governor had to face, for such restrictions were most unwelcome to the German settlers the New Zealand Company had brought out and to the French who had settled in Akaroa. It is probable, however, that they did not apply to those, now aliens, who had come to the islands before the Treaty of Waitangi.

Early Legislation on Naturalisation

The result was a series of ordinances and Acts, passed nearly every session between 1844 and 1865, locally naturalising a list of persons, often with effect from the date of arrival in the colony. In addition there was a New Munster ordinance in 1849. Bishop Pompallier was among those naturalised in 1851.

In Britain Parliament had passed an Act in 1844 instituting a system of naturalisation under the control of a Government Department. This Act apparently did not apply to the colonies and in 1847 a further Act was passed validating colonial legislation on naturalisation, provided it was restricted to the colony concerned. Thus persons naturalised in New Zealand were only British subjects locally, though in fact they were given British protection except in their native land. This Act permitted naturalisation other than by Act, but this was not initiated until 1865.

In 1851 a process was begun whereby aliens were given temporary naturalisation until the next session of the legislature when, in a further single Act, another batch would be naturalised and the temporary arrangements re-enacted. This continued until 1866, when the first Aliens Act was passed. This allowed aliens to be naturalised by letters from the Governor without any requirement of residence. Alien friends were also freed from all restrictions on the holding of personal property, while they were also permitted to lease land for a period of 21 years. Alien women marrying British subjects were deemed to be naturalised. A further Aliens Act in 1870 removed all restrictions of the holding of land.

In 1865 came the passing of the Native Rights Act. This stated that every New Zealand Maori, born before or after the signing of the treaty, was deemed to be a natural-born subject of the Queen. By the Treaty of Waitangi the Queen had conferred on the Maoris the rights and privileges of British subjects, though at the same time she confirmed their land title and their customs of holding land. The question of Maori nationality was raised on several occasions, particularly as far as those who had not signed the treaty was concerned. The Colonial office firmly maintained that they were British subjects, though it did not believe that it was possible to apply English law to them. Because of their different system of land tenure it was barely possible, however, to get certain of the colonists to admit that the Maoris were British subjects.

An amendment in 1882 to the Aliens Act provided that a child of a naturalised father or widowed mother resident with his parent in New Zealand during infancy was himself deemed to be naturalised. By 1892 the spectre of Asiatic immigration was raising its head and all fees for naturalisation, except in the case of Chinese, were abolished. The Acts were consolidated in 1908.

Adoption of a Common Code

The question of a common code of naturalisation had been discussed at the Imperial conferences of 1907 and 1911 and resulted in the British Nationality and Status of Aliens Act of 1914. New Zealand introduced a Bill containing the code in the same year, but the outbreak of war caused its passing to be postponed, and the earlier Acts remained in force. Provision for revocation of naturalisation was made in 1917. The Governor-General in Council was given power to do this when he was satisfied that revocation was expedient for the welfare or defence of the realm, or the peace and good government of New Zealand, or otherwise on grounds of public policy.

During the years of war, opinion on the common code of nationality changed and little could be said in favour of allowing other parts of the Empire to grant naturalisation and the right to vote in New Zealand. The result was that when the British Nationality and Status of Aliens Act was passed in 1923, Part I, giving the rules for naturalisation, was not used, and New Zealand retained its old rules. Further, the naturalisation of a person elsewhere in the Empire did not mean that he was a British subject in New Zealand.

The Act also made provisions for the local naturalisation of Western Samoans. New Zealand had become the mandatory power in 1920, but Samoa was not part of the Empire and the inhabitants were not British subjects, but British-protected persons. A year later an amendment permitted naturalisation even when the person had not an adequate knowledge of English.

By 1928 New Zealand was the only part of the Empire that had not adopted the common code, but in that year Part II of the Imperial Act was adopted and the whole of the Act became the law of New Zealand. Although the right to create British subjects in New Zealand had been conceded, the Government was relying on the Immigration Restriction Act of 1920 to keep out unwanted people. The Act also confirmed and continued the local naturalisation of Cook Islanders and Samoans.

Nationality of Married Women

The nationality of married women had long been a difficult problem. The common law was not very clear on the situation and seems to have had no particular rules. In practice women were considered to have the nationality of the husband, but it was not very definite. A British Act of 1844 stated that an alien woman marrying a British subject was deemed to be naturalised, but it was not until 1880 that New Zealand adopted this provision.

On the other hand, another Imperial Act of 1870 said that a British woman marrying an alien lost her nationality, but this was not New Zealand law. With the adoption of part of the Imperial Act in 1923, however, the situation was altered. According to this, with minor exceptions, the law was that the wife of a British subject was a British subject and the wife of an alien an alien. The rigid adherence to the Act often caused a woman to have no nationality and, following the British lead, the Act was amended in 1934. It was provided that British nationality was lost on marriage only where foreign nationality was automatically acquired. In cases where the husband changed his nationality after marriage the wife was, however, permitted to retain her status.

Experience of the war years, where women of British birth were classed as aliens, led to a further change in the law in 1946, and here the common code was breached. It was enacted that no woman British subject lost her nationality on marriage even if she automatically gained foreign nationality, unless she declared herself an alien. This was made retrospective. Similarly, an alien marrying a British husband was not deemed a British subject by marriage alone, but her naturalisation was made easy.

End of the Common Code

During the war in 1943 provision was made for the naturalisation of aliens serving in the forces. By the end of the war the common code of nationality was under strain. New Zealand herself had her own laws relating to the nationality of married women and in 1946 Canada introduced its own citizenship law, mainly concerned with defining Canadians and only incidentally dealing with British subjects. As a result, a conference of experts met in February 1947 and it was decided that each country should decide for itself and in its own way what classes of persons were its own citizens and each country would accept the citizens of every other Commonwealth country as British subjects or as Commonwealth citizens, two names for a single status. In this way each country would be free to make its own laws on nationality without impairing the common bond.

Somewhat reluctantly, New Zealand passed the British Nationality and New Zealand Citizenship Act of 1948, which created for the first time the status of “New Zealand citizen” and which, with the amendments of 1959, 1961, and 1962, is the present law of nationality. Under the Act New Zealand citizens were declared to be British subjects as were the citizens of the United Kingdom and colonies, Canada, Australia, Union of South Africa, India, Pakistan, Southern Rhodesia, Ceylon, Jamaica, Trinidad and Tobago, and Uganda. Since 1949 South Africa has been removed from the list; Ghana, Malaysia, Cyprus, Sierra Leone, Nigeria, and Tanganyika have been added.

Provision was also made for citizens of Eire taking advantage of the nationality laws of other Commonwealth countries to become British subjects to be recognised as such. Further, under New Zealand law Irish citizens were generally to be given the same rights as British subjects.

The Act automatically conferred New Zealand citizenship on:

1. Those British subjects born in New Zealand:

2. British subjects naturalised in New Zealand:

3. British subjects ordinarily resident in New Zealand during the year 1948:

4. Those British subjects not born in New Zealand, whose fathers acquired citizenship under (a) or (b):

5. On British subjects born in Western Samoa:

6. On women who were British subjects at the end of 1948 and either married to New Zealand citizens or had been married to someone who, except for death, would have become a New Zealand citizen.

For the purposes of the Act New Zealand includes the Cook Islands and the Tokelau Islands.

Since the Act came into force New Zealand citizenship has been acquired:

1. By birth in New Zealand or in a New Zealand ship or aircraft, except where the father is a foreign diplomat or the representative of another Commonwealth country, or if the father is an enemy alien occupying New Zealand territory:

2. By descent, that is, where birth occurs outside New Zealand and the father is a New Zealand citizen (where the father is a citizen by descent only the birth must be registered with the Minister's permission before the child reaches 16):

3. By registration where already a British subject, or an alien wife of a New Zealand citizen:

4. By naturalisation if an alien:

5. By the incorporation of new territory as part of New Zealand.

Any adult British subject, a citizen of any Commonwealth country or of the Republic of Ireland, can register as a New Zealand citizen after a year's residence in New Zealand. Where a woman is married to a New Zealand citizen she may register as of right if a British subject or Irish citizen or, if an alien, at the discretion of the Minister of Internal Affairs without any residential qualification. Registration is not necessary to obtain a vote at Parliamentary elections and all British subjects are liable to military service. The Minister can at his discretion require any person seeking registration to take the oath of allegiance.

NATURALISATION

Aliens normally resident in New Zealand may become New Zealand citizens by naturalisation. An applicant must satisfy the Minister of Internal Affairs that, after attaining the age of 20 years, he has given notice of his intention to apply for naturalisation at least 12 months but not more than five years before the date of application; that he has resided in the country during the 12 months prior to the date of application; that during the seven years immediately preceding the 12 months he has resided in New Zealand for periods which amount to at least four years; that he is of good character; has sufficient knowledge of the English language and of the responsibilities and privileges of New Zealand citizenship; and, if naturalised, intends to live in New Zealand. Crown service under the New Zealand Government outside New Zealand can count instead of actual residence in New Zealand, while the Minister can allow certain other qualifications, such as service in the forces, to make up the required periods.

Before a certificate of naturalisation is effective the oath of allegiance must be taken. In 1954 the Government decided that this should be done in an atmosphere of dignity and solemnity. Local authorities were asked to arrange proper ceremonies where the oath was taken and the certificate of naturalisation presented. During the year 1964–65, 84 citizenship ceremonies took place at which 1,375 certificates were presented.

A New Zealand citizen of full age may lose his citizenship under certain conditions. If he becomes a citizen of another Commonwealth country or a foreign national, he may renounce his New Zealand citizenship before a magistrate or a designated representative overseas. The Minister may refuse to register such renunciation if the person continues to be ordinarily resident in New Zealand or if the assuming of foreign nationality takes place during a war in which New Zealand is engaged.

The Minister may deprive a person of full age of his New Zealand citizenship if foreign nationality is acquired voluntarily, other than by marriage, and it is not conducive to the public good that the citizenship should be continued. Where citizenship is obtained by fraud, the Minister may revoke it. In this case, however, the matter is subject to appeal to a committee of inquiry.

In the original Act provision was made for aliens residing in Western Samoa to be naturalised and under it Samoans were New Zealand protected persons. With the independence of Samoa in 1962 these arrangements have been repealed, but Samoans are not treated as aliens in New Zealand. Samoa has not yet decided her relationship with the Commonwealth and, until this is done, the matter cannot finally be determined.

ALIENS

An alien is defined as a person who is not a British subject, a British protected person, an Irish citizen, or a Western Samoan. The few main restrictions on aliens are to be found in the Aliens Act of 1948, which allows them to hold and inherit real and personal property as if a citizen. On the other hand, they have no right to vote at a parliamentary election, to hold parliamentary or other office, to be the owner of any part of a British ship, or to have any of the rights of a British subject, except those detailed. They can in certain circumstances vote at local elections. There are in addition certain other legal restrictions. An alien cannot be admitted as a barrister or a solicitor, while the examinations for masters, mates, and engineers of British ships are open only to British subjects. Certain professional bodies also have rules which prohibit the admission of aliens or do not recognise qualifications obtained in foreign countries.

Aliens have much the same rights as British subjects in sueing and being sued. Alien children are required to attend school and are entitled to free education. Social security benefits have residential qualifications and are available to all who fulfil them.

Before taking up residence in New Zealand, aliens are required to obtain an entry permit from the Secretary of Labour. Visitors and students need a temporary entry permit. The former should be obtained before arrival in New Zealand.

All aliens 16 years or above are required to register with the Police on arrival in New Zealand. A certificate of registration is issued and changes of address, name, and occupation must be notified. Diplomatic and consular representatives, their servants, officials attending international official conferences or representing international organisations are exempt. In addition, crews of ships and aircraft and temporary visitors are in certain circumstances also exempted.

The Minister of Justice has power to deport any alien who has been convicted and sentenced to more than a year's imprisonment, where the Court recommends deportation. The Minister can also deport where he is satisfied that it will be for the public good, but such an order must be approved by the Governor-General.

Even if in the first case the alien appeals against the sentence of the Court for deportation, the Minister may still deport if he believes it to be for the public good.

by James Oakley Wilson, D.S.C., M.COM., A.L.A., Chief Librarian, General Assembly Library, Wellington.

• Nationality and Citizenship Laws of the Commonwealth, Parry, C. (1957).