Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.
(See also Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 599.) It is unnecessary to trace the history of the statutory amendments of the common law before 1948, when laws giving effect to a new concept of the status of a British subject were enacted in the United Kingdom, Australia and other Commonwealth countries. The Australian statute was the Nationality and Citizenship Act 1948 Cth, which took effect on 26 January 1949, and in its amended form has been renamed the Australian Citizenship Act. The English statute was the British Nationality Act 1948 U.K.. The principles to which this legislation gave effect were that the peoples of each of the countries of the Commonwealth should have separate citizenship, but that all citizens of Commonwealth countries should have the common status of British subjects. Section 7 of the Australian Citizenship Act gave effect to this common status, which was, of course, derivative, being dependent on the possession of citizenship. The argument put on behalf of the appellant in the present case depends on the fact that s. 7(2) in its original form did not list all the Commonwealth countries whose citizens became British subjects under the British Nationality Act 1948. The names of various countries were added, either by amendment to the section or by regulation, but the addition of the name of a particular country was usually not made until some time after the citizens of that country had become British subjects under the British Nationality Act 1948 by virtue of their citizenship. During the interval, it was said, the citizens of that country, although British subjects by virtue of their local citizenship, were not British subjects within s. 7, and were therefore aliens within s. 12 of the Migration Act. Two examples may suffice to illustrate this argument. It was said that as from 5 June 1959 the citizens of Singapore became British subjects by virtue of their citizenship of that country, but that no reference to Singapore appeared in s. 7 until 1 December 1959 when that section was amended by the Nationality and Citizenship Act 1959, and that from 5 June 1959 until 1 December 1959 there were therefore persons in Singapore who had the status of British subjects under the law of the United Kingdom, but who did not fall within s. 7. Of course this defect, if it was a defect, had been cured before 7 August 1978 when the deportation order was made against the plaintiff. A more pertinent example is the case of the Solomon Islands. We were told that as from 7 July 1978, when the Solmon Islands became independent, persons who were citizens of the Solomon Islands became citizens of the Solomon Islands and British subjects under the British Nationality Act 1948, but s. 7 has not been amended to refer to the Solomon Islands, and the regulations were not amended to declare that the Solomon Islands is a country to which s. 7 applies until 13 July 1979: see reg. 5a of the Australian Citizenship Regulations, substituted by No. 143 of 1979. Therefore, it was said, at 7 August 1978 citizens of some countries to which s. 7 did not apply were British subjects, but were aliens for the purpose of Australian law. It was pointed out that the provisions of s. 26 of the Australian Citizenship Act did not fill this gap. Sub-section (1) applies only to persons who had acquired the status of British subjects before 26 January 1949, and sub-s. (5) applies only to persons who have acquired the status of a British subject by virtue of a law in force in a country to which s. 7 applies.