Annandale v Collector of Customs

• Jurisdiction: New Zealand
• Judgment Date: 08 November 1954
• Date: 08 November 1954
• Court: Supreme Court

New Zealand, Supreme Court of Wellington.

(Hutchison J.)

Annandale

and

Collector of Customs.

Mandates — Nationality in Mandated Territory — Effect of Birth in Class “C” Mandate — Persons Born in Western Somoa — The Law of New Zealand.

The Facts.—The appellant was born in Western Samoa on June 28, 1924, his father being a natural-born British subject (a Scotsman) and his mother a Samoan. At the time of the appellant's birth, Western Samoa was a Class “C” Mandate administered by New Zealand.1 The appellant entered New Zealand in 1951, obtaining for that purpose a permit under s. 5 of the Immigration Restriction Amendment Act, 1920.2 The permit finally expired on September 7, 1953. The appellant had thereafter remained in New Zealand, and was convicted for remaining in New Zealand after his permit had expired. He appealed against this conviction. It was common ground that he was, under the terms of the British Nationality and Status of Aliens (in New Zealand) Act, 1928 (now repealed), a natural-born British subject, and, by virtue of s. 16 (3) of the British Nationality and New Zealand Citizenship Act, 1948, was at the time of this action a New Zealand citizen.

Held: that the conviction must be quashed. The appellant's father being a British subject born in Scotland, the appellant was consequently “a person of British birth and parentage” within the meaning of that expression in s. 5 (1) of the Immigration Restriction Amendment Act, 1920, irrespective of the status of Western Samoa at the time of his birth.

Hutchison J. said: “The question is whether the appellant is subject to s. 5 or whether he is outside its provisions as being ‘a person of British birth and parentage’. The learned Magistrate in the Court below, in a reserved judgment, concluded that the words

‘British birth’ are to be given a meaning based on locality, a person not born within Her Majesty's Dominions and allegiance therefore, in that view, not being ‘of British birth’, and that Western Samoa, being a ‘trust territory’, is not British or New Zealand territory; and he accordingly convicted the appellant. [Hutchinson J. then examined the provisions of section 5 (1) of the Immigration Restriction Amendment Act, 1920, and formed the opinion that the words ‘of British birth’ in that section did not refer to the place of birth but to national status at birth. The learned Judge concluded by...