Hostname: page-component-745bb68f8f-5r2nc Total loading time: 0 Render date: 2025-01-27T06:46:49.313Z Has data issue: false hasContentIssue false
  • English
  • Français

The Act of Settlement and the Employment of Aliens

Published online by Cambridge University Press:  24 January 2025

Keven Booker  and
George Winterton
Keven Booker
Affiliation:
The University of New South Wales
George Winterton
Affiliation:
The University of New South Wales
Get access Rights & Permissions [Opens in a new window]

Extract

Following recent disagreement between the Commonwealth and Victorian Solicitors-General over whether the States have power to employ aliens in public offices in view of section 3 clause 5 of the Act of Settlement 1701 (U.K.), this Article considers whether that clause applies in the States and, if it does, whether they or the Commonwealth can amend or repeal it. These issues are examined in light of the common law on the employment of aliens in public office, the reasons for the enactment of the Act of Settlement, and the question whether, and to what extent, the doctrine of paramount force applies to legislation enacted prior to the establishment of a colony.

The Article concludes that section 3 clause 5 did not apply in Australia, either by reception or by paramount force, although the common law on the employment of aliens applied by reception; and the common law did not disqualify naturalized persons from holding public office. The authors argue that in any event, Commonwealth legislation, validly enacted under the “Naturalization and aliens” power (section 51(xix)) has removed any disabilities the Act of Settlement might have imposed on the employment of naturalized persons. Moreover, pursuant to section 51(xxxviii), the Commonwealth could authorize the States, or any of them, to pass legislation repugnant to Imperial legislation extending to the State by paramount force.

Type
Research Article
Information
Federal Law Review , Volume 12 , Issue 3 , September 1981 , pp. 212 - 235
Copyright
Copyright © 1981 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

We would like to thank Mr Robert Spence for his assistance.

References

1 Infra, Part 5. The doctrine of paramount force applied to conquered or ceded colonies as well as to settled colonies.

2 The reception date is now set by statute in all Australian States. It is 25 July 1828 in New South Wales, Victoria, Queensland and Tasmania: Australian Courts Act 1828 (9 Geo. IV c. 83) s. 24; 28 December 1836 in South Australia: Acts Interpretation Act 1915 (S.A.) s. 48; and 1 June 1829 in Western Australia: Interpretation Act 1918 (W.A.) s. 43.

3 See generally Cooper v. Stuart (1889) 14 App. Cas. 286; Delohery v. Permanent Trustee Co. of New South Wales (1904) 1 C.L.R. 283; Quan Yick v. Hinds (1905) 2 C.L.R. 345; Dugan v. Mirror Newspapers Ltd (1979) 142 C.L.R. 583; 6 Halsbury's Laws of England (4th ed. 1974) para. 1196. The doctrine of reception did not necessarily apply to conquered or ceded colonies.

4 Colonial Laws Validity Act 1865 (28 and 29 Vic. c. 63) s. 2.

5 China Shipping Co. v. South Australia (1979) 54 A.L.J.R. 57; Ukley v. Ukley [1977] V.R. 121. Contra Murphy J. in Bistricic v. Rokov (1976) 135 C.L.R. 552, 565-567 and China Shipping Co. v. South Australia (1979) 54 A.L.J.R. 57, 80-81.

6 The Statute of Westminster 1931 (U.K.) s. 2 frees the Commonwealth from the operation of the Colonial Laws Validity Act 1865. The Statute of Westminster was adopted by the Statute of Westminster Adoption Act 1942 (Cth).

7 12 and 13 Wm. III c. 2 (hereafter referred to as “the Act of Settlement”).

8 See infra pp. 216-217 for the full text of s. 3.

9 Robin, Nationality Requirements for Entry into the Victorian Public Service, Anti-Discrimination Bureau of the Victorian Premier's Department (1978) 11.

10 Ibid. The opinion was on the eligibility of aliens for appointment to the teaching service: see Teaching Service Act 1958 (Vic.) s. 57A.

11 See Public Service (Employment of Aliens) Bill 1980, introduced by Messrs Cathie and Sidiropoulis on 25 March 1980; Vic. Par[. Deb. (Assembly), Vol. 349, 7348. The Bill sought to amend s. 30(1)(a)(i) of the Public Service Act 1974 (Vic.) by substituting “resident permanently in Australia” for “Australian citizen or a British subject”, and by inserting a provision (s. 30A) declaring that persons who are not Australian citizens or British subjects may be appointed to the public service. The proposed s. 30A was expressed to be subject to s. 3 of the Act of Settlement 1701 “in so far as those provisions are in force in Victoria”.

12 10 September 1980, Vic. Par[. Deb. (Assembly) 219. An identical Bill was introduced by Mr Sgro in the Legislative Council on the previous day: 9 September 1980 , Vic. Par[. Deb. (Council) 13.

13 See question by Mr Walker and answer by Mr Hunt: 10 September 1980, Vic. Par[. Deb. (Council) 109 (and see also id. 183-185); question by Mr Wilkes and answer by Premier Hamer: 11 September 1980, Vic. Par[. Deb. (Assembly) 263; Ministerial Statement on the Act of Settlement 1701 (U.K.): 11 September 1980, Vic. Parl. Deb. (Assembly) 291, 292. See also The Age, 11 September 1980, 1; Sydney Morning Herald,12 September 1980, 2; The Australian 12 September 1980,3. For a summary of these events see Lindell, “Applicability in Australia of Section 3 of the Act of Settlement 1701” (1980) 54 A.L.J. 628. In a letter dated 21 October 1980 to one of the authors, the Victorian Attorney-General confirmed that the Solicitor-General had advised the Government that the Act of Settlement 1701 “is applicable to Victoria in respect of those positions referred to in section 3 … “. A short extract from the Solicitor-General's opinion appears in R. Miller, “Constitutional Law” in R. Baxt (ed.), Annual Survey of Law 1980 (1981) 492, 513.

14 See question by Senator Missen and answer by the Attorney-General, Senator Durack: S. Deb., 1980, Vol. 86, 1056 (16 September 1980).

15 Press Release by the Attorney-General, “Application of the Act of Settlement”, Canberra, 11 September 1980. Unfortunately, neither the Commonwealth nor the Victorian Government was prepared to make a copy of its Solicitor-General's opinion available to the authors.

16 See Statements by the Victorian Attorney-General, Mr Haddon Storey, in reply to questions without notice: 16 September 1980, Vic. Par!. Deb. (Council) 330, and 17 September 1980, id. 448.

17 1 Wm. and Mary, sess. 2 c. 2.

18 S. 4 ratified “all the Laws and Statutes of this Realm for securing the established Religion and the Rights and Liberties of the people thereof and all other Laws and Statutes of the same now in force … “.

19 See infra p. 219 n. 55 for the amendments to s. 3.

20 Coronation Oath Act 1688 (1 Wm. and Mary, sess. 1 c. 6).

21 Law Reform Commission of New South Wales, Working Paper on Legislative Powers (1972) para. 160 and n. 221; ''The opinion of the attorney-general Harcourt, on the impropriety of an act of recognition of queen Anne, by the assembly of Mary-land” (1707) in 1 Chalmers, Opinions of Eminent Lawyers (1814) 343.

22 See Miller, supra n. 13, 512. But see Zines, The High Court and the Constitution (1981) 254-255. With respect, Mr Jacobi M.P. is incorrect in asserting that the Commonwealth Parliament could amend the covering clauses pursuant to s. Sl(xxxviii) of the Constitution: see Official Record of Debates of the Australian Constitutional Convention (Sydney, 1973) 30. But, although the matter is not free from doubt, it is submitted that the covering clauses can be amended pursuant to the procedure prescribed in s. 128 of the Constitution: China Shipping Co. v. South Australia (1979) 54 A.L.J.R. 57, 80-81 per Murphy J.; Lumb, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 F.L.Rev. 148, 158-160; Campbell, “An Australian-Made Constitution for the Commonwealth of Australia” (1974) in Australian Constitutional Convention 1974, Standing Committee D, Report to Executive Committee (1 August 1974) Appendix H, paras. 10, 21; Lumb and Ryan, The Constitution of the Commonwealth of Australia Annotated (3rd ed. 1981) 401 n. 1, 402-403; Professor J. H. Morgan, Opinion (1934) in O'Connell and Riordan, Opinions on Imperial Constitutional Law (1971) 414-415 (but this opinion is based upon a misreading of the Statute of Westminster 1931 (U.K.) s. 8: see Duncan, id. 410); Griffith, Official Report of the National Australasian Convention Debates (Sydney, 1891) 490 (semble); Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd [1914] A.C. 237, 256 (semble). Contra Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) 541-542; Sawer, “The British Connection” (1973) 47 A.L.J. 113, 114 n. 3; Garran, Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence (1927) 84 (question 724); Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 989, 994; Report of the Royal Commission on the Constitution (1929) 16-17, 228; 2 Keith, Responsible Government in the Dominions (2nd ed. 1928) 689; Canaway, ''The Safety-Valve of the Commonwealth Constitution” (1938) 12 A.L.J. 108, 110; Report of the Joint Committee of the House of Lords and the House of Commons appointed to consider the Petition of the State of Western Australia (May 1935) (H.C. 88, H.L. 75) paras. 6, 12; Moore, The Constitution of the Commonwealth of Australia (2nd ed. 1910) 603 (semble).

23 Provided the sections are severable: Anderson v. Ah Nam (1904) 4 S.R. (N.S.W.) 492, 495-496; Quan Yick v. Hinds (1905) 2 C.L.R. 345, 364; Ryan v. Howell (1848) 1 Legge 470; Connors v. Egli [1924] 2 D.L.R. 59, 61 (Alta. App. Dilv.); Castles, “The Reception and Status of English Law in Australia” (1963) 2 Adelaide Law Review 1, 19-20.

24 E.g. the Merchant Shipping Act 1894 (U.K.). See “Joint Opinion of the Attorney and Solicitor General, Sir William De Grey and Sir Edward Willes, on the extension of Acts of Parliament to the Colonies, when they are mentioned generally, as dominions of the Crown” (1767) in Forsyth, Cases and Opinions on Constitutional Law (1869) 3, 4 and 1 Chalmers, supra n. 21, 200, 201.

25 Contra Robin supra n. 9, 9 asserting (without giving any details) that the Act of Settlement was adopted in Australia in the l 850s. Of course, an Act may refer to the Act of Settlement without adopting its provisions; e.g. the Teaching Service Act 1958 (Vic.) s. 57A. The “preservation” of the Act of Settlement by the Imperial Acts Application Act 1969 (N.S.W.) s. 6, Sch. II, Pt 1 would have no effect if the Act of Settlement were not already in force in New South Wales. The Act of Settlement s. 3 clause 5 was not repealed by either of the Victorian Imperial Acts Application Acts: Imperial Acts Application Act 1922 (Vic.) s. 5(3); Imperial Acts Application Act 1980 (Vic.) s. 4(3).

26 Viz. heads 12 and 18 of the list drawn up by a Committee of the House of Commons in February 1689: Western, Monarchy and Revolution (1972) 331 citing (1689) 10 Commons Journal 15, 17.

27 Frankie, “The Formulation of the Declaration of Rights” (1974) 17 Historical Journal 265, 277.

28 On the role of the Privy Council, see 3 Hallam, The Constitutional History of England (8th ed. 1867) 182-186. On the problem of placemen in the House of Commons, see id. 187-192.

29 Gibbs, “The Revolution in Foreign Policy” in Holmes (ed.) Britain after the Glorious Revolution 1689-1714 (1969) 59, 60-61; Horwitz, Parliament, Policy and Politics in the Reign of William Ill (1977) 20.

30 Gibbs, id. 70.

31 Id. 59, 67-68.

32 Particularly Bentinck and Keppel: 3 Hallam, supra n. 28, 186; Horwitz, supra n. 29, 20.

33 Calvin's Case (1609) 7 Co. Rep. la, 16a; 77 E.R. 377, 396; 1 Blackstone, Commentaries on the Laws of England (17th ed. 1830) 366, 373.

34 R. v. Speyer [1916] 2 K.B. 858, 861.

35 Id. 861, 866; Coke, The Fourth Part of the Institutes of the Laws of England (1648) 47.

36 Salmond, “Citizenship and Allegiance” (1902) 18 L.Q.R. 49, 59.

37 Calvin's Case (1609) 7 Co. Rep. la, 18b; 77 E.R. 377, 399; 9 Holdsworth, A History of English Law (3rd ed. 1944) 92 citing Y.B. 14 Hy. IV Hil. pl. 23.

38 R. v. Heighton (1) (1922) 69 D.L.R. 386, 389 (N.S.S.C.).

39 Kettner, The Development of American Citizenship 1608-1870 (1978) 6.

40 Case LXIV Anon. (1469) Jenk. 130; 145 E.R. 91; 9 Holdsworth, supra n. 37, 91.

41 Aliens Act 1844 (U.K.) (7 and 8 Vic. c. 66).

42 1 Blackstone, supra n. 33, 374.

43 Id. 373.

44 Report of the Royal Commissioners for Inquiring into the Laws of Naturalization and Allegiance (1869) 25 House of Commons ParliamentaryPapers 607, 630; Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland (1957) 38, 49-50.

45 9 Holdsworth, supra n. 37, 77.

46 (1624) Glanville's Election Cases 120.

47 Coke, supra n. 35, 47.

48 See Beardwood, “ Mercantile Antecedents of the English Naturalization Law” (1964) 16 Medievalia et Humanistica 64, 73; Kettner, supra n. 39, 35 asserting that s. 3 of the Act of Settlement reduced the political rights of “naturalized aliens” to the level of denizens.

49 E.g. 2 Viner, A General Abridgement of Law and Equity (2nd ed. 1791) 269-270; Report of the Royal Commissioners 1869,supra n. 44, 630; 1 Halsbury's Law of England (1st ed. 1907) para. 687; Henriques, The Jews and the English Law (1974) 234.

50 Fourdrin v. Gowdey (1834) 3 My. & K. 383, 384; 40 E.R. 146, 147.

51 11 Encyclopaedia of Forms and Precedents (2nd ed. 1925) 7.

52 Id. 33.

53 Id. 34.

54 E.g. the rules about real property were received: Mayor of Lyons v. East India Co. (1836) 1 Moo. P.C. 175, 234; 12 E.R. 782, 804; Re Douyere; ex parte Bell (1863) 1 Qd. S.C.R. 91, 95; Helmore, The Law of Real Property in New South Wales (2nd ed. 1966) 289; “Joint Opinion of the Attorney and Solicitor General, Sir A. E. Cockburn and Sir Richard Bethell, on the power of the Legislature of St. Helena to pass an Ordinance conferring on a foreigner power to hold land in St. Helena” (1854) in Forsyth, supra n. 24, 11, 12.

55 Clause 3 was repealed in 1715 by 1 Geo. I, Stat. 2 c. 51; clause 4 was repealed in 1705 by 4 and 5 Anne c. 8 s. 24; clause 6 was repealed in 1705 by 4 and 5 Anne c. 8 s. 25. The words “naturalized or” in clause 5 were deleted by the British Nationality and Status of Aliens Act 1914 s. 31 and Sch. 3. Those words had been repealed by implication by the Naturalization Act 1870: R. v. Speyer [1916] 2K.B. 858, 866 and Kahn v. Board of Examiners (Viet.) (1939) 62C.L.R. 422, 443.

56 Re Howard [1976] 1 N.S.W.L.R. 641.

57 R. v. Heighton (I) (1922) 69 D.L.R. 386 (N.S.S.C.).

58 1 Mary, sess. 3 c. 2 (1553). The “said Realms and Dominions” are not listed but are described as “the Realms and Dominions unto the said most noble Queen appertaining”.

59 gIbid. (Emphasis added).

60 Commonwealth v. Colonial Combing, Spinning and Weaving Company Ltd (1922) 31 C.L.R. 421, 433; Cobb & Co. Ltd v. Kropp [1965] Qd. R. 285, 292, 301, affirmed on other grounds [1967] 1 A.C. 141; Fitzgerald v. Muldoon [1976] 2 N.Z.L.R. 615,622.

61 Supra p. 217 n. 26 and text.

62 [1953] 2 Q.B. 482.

63 Id. 493. See also ''The observations of the attorney and solicitor-general, Ryder, and Murray, on the acts of the Jamaica assembly, in 1751” in 2 Chalmers, supra pp. 214-215 n. 21, 105.

64 Supra p. 217 n. 27 and text.

65 [1953] 2 Q.B. 482, 493.

66 But see Namoi Shire Council v. Attorney-General for New South Wales [1980] 2 N.S.W.L.R. 639, 643-644 holding that article 9 of the Bill of Rights does not purport to apply to any legislature other than the Westminster Parliament.

67 See cases on severability cited supra p. 215 n. 23.

68 Uniacke v. Dickson (1848) 2 N.S.R. 287, 289; R. v. Crown Zellerbach Canada Ltd (1954) 14 W.W.R. (N.S.) 433, 436 (B.C.S.C.).

69 Roberts-Wray, Commonwealth and Colonial Law (1966) 555.

70 (1871) 10 S.C.R. (N.S.W.) 113.

71 Supra p. 219 n. 54 and text.

72 (1769) 4 Burr. 2494; 98 E.R. 308.

73 Id. 2500; 311.

74 Supra p. 219 ff. Part 4.

75 The Colonial Laws Validity Act 1865 (U.K.) s. 3.

76 Id. s. 2, quoted infra p. 228 n. 20.

77 See supra p. 212 n. 2.

78 Colonial Laws Validity Act 1865 (U.K.) s. 1; Phillips v. Eyre (1870) L.R. 6 Q.B. 1, 20-21; Ukley v. Ukley [1977] V.R. 121, 128; Bignold, Imperial Statutes in Force in New South Wales (1913) 10, 22; infra p. 226 n. 7. It has not always been clear that post-settlement statutes could extend to a colony by necessary implication; in earlier times, such Acts were said to extend to a colony only if it were “specially named or by general words included, as within any of the King's Dominions”: Coke, supra p. 218 n.. 35, 351; 1 Blackstone, supra p. 217 n. 33, 101, 107; Attorney-General Sir William Jones, “Opinion on the Applicability of the Statute of Frauds 1676 to Virginia” (1681) in Kimball, Historical Introduction to the Legal System (1966) 290-291; “Opinion of Mr West, Counsel to the Board of Trade ... “ (1720) in Forsyth, supra p. 215 n. 24, 1, and 1 Chalmers, supra p. 214 n. 21, 194; Anon. (1722) 2 P. Wms. 75; 24 E.R. 646; Jones, Present State of Virginia (1724) 63, quoted in Smith, Appeals to the Privy Council from the American Plantations (1950) 474 n. 22; Report of Governor Tryon of New York to the Crown (1774) quoted in Beers v. Hotchkiss (1931) 256 N.Y. 41; 175 N.E. 506, 511; Act for Preventing Frauds in the Plantation Trade 1696 (7 and 8 Wm. III c. 22) s. 9; Act to Regulate the Trade of British Possessions Abroad 1833 (3 and 4 Wm. IV c. 59) s. 56. But, by the mid-nineteenth century, it was clear that post-settlement British Acts could also extend to a colony by necessary implication: Clark, A Summary of Colonial Law (1834) 54; Swinfen, Imperial Control of Colonial Legislation 1813-1865 (1970) 55, 60, 62, 172; Act to Re-unite Upper and Lower Canada 1840 (3 and 4 Vic. c. 35) s. 3 (“by express Enactment or by necessary Intendment”).

79 The Colonial Laws Validity Act 1865 (U.K.) s. 2.

80 It was suggested above that ss. 1 and 2 probably apply by paramount force: supra text to 214-215 n. 21.

81 Cf. the argument in A True Relation of the just and unjust Proceedings of the Somer-Islands-Company (1675) 34 against the extension of the Statute of Uses 1534 (presumably by reception) to Bermuda: “The statute of Uses cannot be a rule to judge uses by there. 1. The statute was made long before the discovery of the Islands, much more before the plantation, or peopling; and the statute in its creation could not be intended beyond England: much less by this Terra Incognita”: quoted in Smith, supra n. 78, 469 n. 11.

82 Beers v. Hotchkiss (1931) 256 N.Y. 41; 175 N.E. 506, 510-511. See also Smith, supra n. 78, 469.

83 See R. v. De Banou (1969) 2 D.L.R. (3d) 424, 428 (B.C.C.A.) (obiter). The question was raised, but not resolved, in “Opinion of the Attorney-General, Sir Edward Northey, as to Roman Catholic Priests in the Colonies” (1705) in Forsyth, supra n. 24, 35-36, and 1 Chalmers, supra n. 21, 3-4.

84 Cussen, Explanatory Paper on the Imperial Acts Application Bill, in The Victorian Statutes 1922: Imperial Acts Application Act 1922 (1923) 78; Cussen, Minutes of Evidence given to the Statute Law Revision Committee (1922), id. 110, 111, 112; Keith, Constitutional History of the First British Empire (1930) 186; Bignold, supra n. 78, 10, 12; Ollivier, Problems of Canadian Sovereignty (1945) 465 (list); infra p. 224 n. 88. See also Swinfen, supra n. 78, 59-60.

85 E.g. Nadan v. R. [1926] AC. 482; Quick and Garran, supra p. 215 n. 22, 349-350.

86 E.g. Union Steamship Co. of New Zealand Ltd v. The Commonwealth (1925) 36 C.L.R. 130; Ffrost v. Stevenson (1937) 58 C.L.R. 528; Hume v. Palmer (1926) 38 C.L.R. 441; The Commonwealth v. Kreglinger and Fernau Ltd (1926) 37 C.L.R. 393; Attorney-General for Queensland (at the relation of Goldsbrough, Mort & Company Limited) v. Attorney-General for the Commonwealth (1915) 20 C.L.R. 148; Quick and Garran, supra p. 215 n. 22, 350-352; Zines, The High Court and the Constitution (1981) 245.

87 See generally Swinfen, supra n. 78, chapters 5 and 11, in particular 58-59, 60-63.

88 New South Wales: Report of the Law Reform Commission on the Application of Imperial Acts (L.R.C.4) (1967) 136-140; the ImperialActs Application Act 1969 (N.S.W.) Sch. III; Victoria: Report from the Statute Law Revision Committee Upon the Imperial Acts Application Act 1922 (1978) paras. 4, 43, Sch. II; Kewley, Report on the Imperial Acts Application Act 1922 (1975) 9, 106, 122, 123; South Australia: Fifty-Ninth Report of the Law Reform Committee … in respect of Imperial Laws Application … in Relation to the Criminal Law (1980) 9, 17, 18, 19, 22; Sixty-First Report of the Law Reform Committee … relating to the Inherited Imperial Law and the Civil Jurisdiction and Procedure of the Supreme Court (1980) 19; Australian Capital Territory: Report on Imperial Acts in force in the Australian Capital Territory (1973) 2. See also Kewley, “Our Legacy of Laws: A Comment on the Constitutional Powers (Request) Act 1980” (1981) 55 Law Institute Journal 270, 271.

89 See infra n. 91.

90 Parliament has legislated for the colonies from early times: Schuyler, Parliament and the British Empire (1929) chapter 1.

91 E.g. the Act of Supremacy 1558 (1 Eliz. c. 1) s. 7: “or within any other [of your Majesty's] dominions or countreis that now be or hereafter shalbee”; An Act for Preventing Frauds and regulating Abuses in the Plantation Trade 1696 (7 and 8 Wm. III c. 22) s. 2: “any Colony or Plantation to his Majesty … belonging … or which may hereafter belong unto, or be in the Possession of his Majesty”; the Colonial Leave of Absence Act 1782 (22 Geo. III c. 75) s. l: “any Colony or Plantation now, or at any Time hereafter, belonging to the Crown of Great Britain”; the Sale of Offices Act 1809 (49 Geo. III c. 126) s. l: “any of His Majesty's Dominions, Colonies, or Plantations which now belong or may hereafter belong to His Majesty”; the Copyright Act 1842 (5 and 6 Vic. c. 45) s. 2; “all the Colonies, Settlements, and Possessions of the Crown which now are or hereafter may be acquired”; the British Settlements Act 1887 (50 and 51 Vic. c. 54) preamble: “have become or may hereafter become possessions of Her Majesty”. See also Smith, supra n. 78, 496-499.

92 The Ecclesiastical Appeals Act 1532 (24 Hen. VIII c. 12) s.1; the Act of Uniformity 1551 (5 and 6 Edw. VI c. 1) s. 1; Act for a Publick Thanksgiving toAlmighty God Every Year on the Fifth day of November 1605 (3 Jae. I c. 1) s. 2; the Sunday Observance Act 1625 (1 Car. I c. 1).

93 See Cussen, supra n. 84, 78 regarding the Sunday Observance Act 1625; Swinfen, supra n. 78, 61; Sixty-Fifth Report of the Law Reform Committee of South Australia … relating to the Inherited Imperial Law Regarding the Crown (1981) 12.

94 Supra p. 212 n. 3 and text; 1 Blackstone, supra p. 217 n. 33, 106; Castles, supra p. 215 n. 23, 17-22.

95 Cf. the Taxation of Colonies Act 1778 (18 Geo. III c. 12).

96 See 1 Blackstone, supra n. 33, 101; Blankard v. Galdy (1694) 2 Salk. 411; 91 E.R. 356 per Shower arguendo.

97 A fortiori if it refers expressly to the colony.

98 E.g. the Calendar (New Style) Act 1751 (24 Geo. II c. 23) s. 1, applying to “all his Majesty's Dominions and Countries in Europe, Asia, Africa, and America, belonging or subject to the Crown of Great Britain”.

99 See supra p. 214 (text to n. 21); Cussen, supra n. 84, 77. Cf. Cobb & Co. Ltd v Kropp [1965] Qd. R. 285, 292, 298, 301, holding that the Bill of Rights 1689 (1 Wm. and Mary, sess. 2 c. 2) s. 1 clause 4 did not apply in Queensland by paramount force. Cf. Cussen, supra n. 84, 78.

1 9 Geo. IV c. 83.

2 This was certainly the view of the Victorian and New South Wales Parliaments: the Imperial Acts Application Act 1922 (Vic.) ss. 5(1) and 7; the Imperial Acts Application Act 1980 (Vic.) ss. 4(1) and 5; the Imperial Acts Application Act 1969 (N.S.W.) s. 7. See also Report from the Joint Select Committee of the Legislative Council and Legislative Assembly on the Imperial Acts Application Bill (1922) in The Victorian Statutes 1922, supra n. 84, 95 (para. 4(4)); Campbell:, “Colonial Legislation and the Laws of England” (1965) 2 Tasmanian University Law Review 148, 167-168.

3 Or at least not in force throughout the dominions.

4 The preamble to the Australian Courts Act 1828 (9 Geo. IV c. 83).

5 Cf. the Australian Courts Act 1828 ss. 21 and 22.

6 Supra pp. 223-224 nn. 83, 84 and 88 and text.

7 Attorney-General for Alberta v. Huggard Assets Ld. [1953] A.C. 420, 441. For examples of legislation applying to the colonies by necessary intendment, see Callender, Sykes & Co. v. Colonial Secretary of Lagos [1891] A.C. 460, 466-467; R. v. Mount (1875) L.R. 6 P.C. 283, 300-301; Re Eades Estate (1917) 33 D.L.R. 335, 339-341 (Man. K.B.).

8 Neither of the Victorian Imperial Acts Application Acts mentions the Act of Settlement; the Imperial Acts Application Act 1969 (N.S.W.) preserves it in force (s. 6 and Sch. II Pt. 1). The Tasmanian legislature of 1834 appears to have assumed that s. 3 clause 5 did not apply by paramount force: Parry, supra p. 218 n. 44, 525. See also supra p. 213 n. 13 and text; Swinfen, supra p. 222 n. 78, 60.

9 Inapplicable: see ''The opinion of the solicitor-general Thomson, on the limited effect of an act of naturalization, by an assembly” (1719) in 1 Chalmers, supra p. 214 n. 21, 343; Opinion of Attorney-General Northey on a Jamaica Act (1706), id 363 (semble); Smith, supra p. 222 n. 78, 475-476; Applicable: Lord Mansfield, 16 The Parliamentary History of England 176 (10 February 1766) (but not specifically on s. 3 clause 5); Keith, supra p. 223 n. 84, 141 (likewise not referring specifically to s. 3 clause 5). See also Kettner, supra p. 218 n. 39, 123-126.

10 Supra text top. 217 nn. 29-32.

11 See supra text top. 214 n. 21.

12 The phrase employed in the Imperial Acts Application Act 1922 (Vic.) s. 5(1)(b) and the Imperial Acts Application Act 1980 (Vic.) s. 4(1)(b).

13 See supra p. 214 nn. 58 and 59.

14 E.g. Bate's Case (1606) 2 St. Tr. 371, reversed by the Petition of Right 1627 (3 Car. I c. 1); R. v. Hampden (1637) 3 St. Tr. 825, reversed by the Ship Money Act 1640 (16 Car. I c. 14); the impeachment of six of the judges who participated in R. v. Hampden: (1641) 3 St. Tr. 1260.

15 And the Petition of Right 1627 (3 Car. I c. 1) ss. 1 and 8.

16 See supra p. 213 n. 11 (emphasis added).

17 Cobb & Co. Ltd v. Kropp [1965] Qd. R. 285, 292, 298, 301, affirmed on other grounds [1967] 1 A.C. 141. The SupremeCourt did not refer to the Colonial Laws Validity Act 1865 (U.K.) s. 5, as to which see text to nn. 18-22 infra.

18 As the Victorian Government was reportedly advised: Premier Hamer, 11 September 1980, Vic. Par!. Deb. (Assembly) 292.

19 See Wilsmore v. Western Australia [1981] W.A.R. 159, distinguishing Clydesdale v. Hughes (1934) 51 C.L.R. 518 (per Wickham J. [1981] W.A.R. 159, 163-164, Smith J. concurring; Wallace J. dissenting): reversed by the High Court,. 29 April 1982 on grounds not relevant to this point. (But see Wilson J.'s concluding remarks on Clydesdale v. Hughes (1934) 51 C.L.R. 518: Western Australia v. Wilsmore, unreported judgment p. 22. Gibbs C.J. concurred); McDonald v. Cain [1953] V.L.R. 411,441 per O'Bryan J. (Gavan Duffy J. contra 422-423); Kenny v. Chapman (1861) 1 W. & W. (L.) 93, 100 per Stawell C.J.; Lumb, supra p. 215 n. 22, 170. None of these cases deals specifically withs. 5 of the Colonial Laws. Validity Act 1865.

20 Section 2, so far as material here, provides: “Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony … shall be read subject to such Act, … and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative”.

21 Mccawley v. R. [1920] A.C. 691, 701.

22 McCawley v. R. (1918) 26 C.L.R. 9, 50-51 per Isaacs and Rich JJ. (dissenting). For a possiblequalification of this dictum, see Roberts-Wray, supra p. 221 n. 69, 404; Jenkyns, British Rule and Jurisdiction Beyond the Seas (1902) 75.

23 Supra Part 3.

24 An Act for Naturalizing Such Foreign Protestants as Shall Settle in America 1740 (13 Geo. II c. 7) s. 1; An Act for Naturalizing Such Foreign Protestants as Shall Serve as Soldiers in America 1761 (2 Geo. III c. 25) s.1; An Act to Explain [the Two Above Acts] 1773 (13 Geo. III c. 25). See also An Act to Enable His Majesty to Grant Commissions to Foreign Protestants Who Have Served Abroad to Rank as Officers in America Only 1756 (29 Geo. II c. 5). These Acts provided specifically that they conferred no right to any office in the United Kingdom: Act of 1740 s.6; Act of 1761 s.3; Act of 1773; Act of 1756 s.4. On these Acts, see generally Kettner, supra p. 218 n. 39, 74 ff.

25 R. v. Speyer [1916] 2 K.B. 858, 862, 871, 873, 879.

Pursuant to s. 2 of An Act to Explain the [Act of Settlement] 1714 (1 Geo. I, stat. 2 c. 4) all Private Naturalization Acts had to include a clause subjecting the naturalized person to the disabilities in s. 3 clause 5 of the Act of Settlement. But see R. v. Speyer [1916] 2 K.B. 858, 870-871 per Phillimore L.J. for exceptions in the case of “persons of some importance”.

26 An Act to Amend the Law Relating to Aliens 1844 (7 and 8 Vic. c. 66).

27 Id. s. 6. The naturalization certificate could also exclude other rights: id. ss. 6, 8. With respect, the comment of Starke J. in Kahn v. Board of Examiners (Viet.) (1939) 62 C.L.R. 422, 443, that naturalized aliens were “excluded from public offices … until the Naturalization Act of 1870” is too broad. See R. v. Speyer [1916) 2 K.B. 858, 862, 871, 873, 879.

28 An Act to Amend the Laws Relating to Aliens within New South Wales 1848 (11 Vic. No. 39) s. 4. This Act was repealed by the Naturalization Act of New South Wales 1875 (39 Vic. No. 19) s. 2.

29 An Act for the Naturalization of Aliens 1847 (10 and 11 Vic. c. 83) s. 3.

30 Id. s. 1.

31 Id. s. 2. For the effect of s. 2, see “Joint Opinion of the Queen's Advocate, Sir John Dodson, and the Attorney and Solicitor General, Sir John Jervis and Sir John Romilly, that Aliens may be empowered by a Colonial Legislature to hold Offices of Trust” (1850) in Forsyth, supra p. 215 n. 24, 332.

32 See Parry, supra p. 218 n. 44, 524-526.

33 33 Vic. c. 14 s. 18.

34 Id. s. 7 (Emphasis added.) See also supra p. 219 n. 55. Aliens remained unable to hold office or vote: id. s. 2(1).

35 Id. s. 16.

36 See Parry, supra p. 218 n. 44, 526-528.

37 4 and 5 Geo. V c. 17 s. 28(1 ). This Act was in tum repealed by the British Nationality Act 1948 (U.K.) s. 34(3) and Sch. 4 Part II.

38 Id. s. 3(2) and Sch. 3. See also supra p. 219 n. 55.

39 Id. s. 9(1). See also id. s. 26(2). Aliens remained unable to hold office or vote: id. s. 17(2).

40 Which included s. 3.

41 Nationality Act 1920 (Cth) s. 17(1).

42 See Parts 4 and 5 of this Article, supra.

43 By the Nationality and Citizenship Act 1948 (Cth) s. 3.

44 See the Acts Interpretation Act 1901 (Cth) s. 8(a); Lindell, supra p. 213 n. 13, 629.

45 The Naturalization Act 1903 (Cth) s. 8. It is submitted that “the Commonwealth” in s. 8 refers to the territory of Australia, not to the polity “the Commonwealth of Australia”; this is demonstrated by its meaning in ss. 5 and 6 of the Act. The Act of Settlement does not fall within the second paragraph of s. 8.

Even if s. 3 clause 5 of the Act of Settlement applied in the States by paramount force, pursuant to s. 16 of the Naturalization Act 1870 (U.K.), the Commonwealth had the power (subject to the Commonwealth Constitution) to enact legislation repugnant to it.

46 Commonwealth Constitutions. 51(xix). For the ambit of this power, see generally Pryles, Australian Citizenship Law (1981), chapter 1.

47 See the Public Service Act 1922 (Cth) s. 34(a); Australian Military Regulation 72(3) (introduced by Statutory Rule No. 116 of 1965 s. 8, as amended by Statutory Rule No. 59 of 1976 s. 6 and made under the Defence Act 1903 (Cth) ss. 10 and 18); and the Commonwealth Electoral Act 1918 (Cth) s. 39(1)(b).

48 See Commonwealth Constitution ss. 51(xxxix), 52(i), 52(ii) and 122.

49 Id. ss. 51(vi), 52(ii) and 69.

50 Id. ss. 8, 30. But see id. s. 41. The Constitution itself requires members of Parliament to be subjects, natural-born or naturalized: ss. 16, 34(ii).

51 The Commonwealth has not purported to do so, except in so far as it has amended s. 3 clause 5 of the Act of Settlement 1701 by excluding naturalized persons from its disabilities: supra text top. 230 nn. 41-45.

52 See Commonwealth Constitution ss. 51(i), 51(vi), 51(ix), 51(xx) and 51(xxvi)(xxx).

53 Robtelmes v. Brenan (1906) 4 C.L.R. 395, 404 per Griffith C.J. Accord Ah Yin v. Christie (1907) 4 C.L.R. 1428, 1431, 1433; Ferrando v. Pearce (1918) 25 C.L.R. 241, 270, 274; Koon Wing Lau v. Calwell (1949) 80 C.L.R. 533, 556,585. Of course, in time of a defence emergency, the defence powers. 51(vi) can also be employed in expelling aliens: Ferrando v. Pearce (1918) 25 C.L.R. 241, 253, 263, 270; KoonWing Lau v. Calwell (1949) 80 C.L.R. 533, 556, 579, 580, 586, 594-595.

54 Wynes, supra n. 215 n. 22, 303.

55 Ibid. Cf. Abel, Laskin's Canadian Constitutional Law (rev. 4th ed. 1975) 864: “Is any special significance to be attached to the fact that Dominion power under s. 91(25) [of the British North America Act 1867 (U.K.)] is in relation to 'naturalization', not naturalized persons; and 'aliens', not alienage? Or should the courts read the terms as if they were 'naturalization and naturalized persons and aliens and alienage'?”

56 Ryan, “Immigration, Aliens and Naturalization in Australian Law” in O'Connell (ed.), International Law in Australia (1966) 465, 485 … 491-492 (emphasis added), referring to Wynes, supra p. 215 n. 22, 303.

57 See Pryles, supra n. 46, 7. This is also suggested by an obiter dictum of Wolff C.J. in West v. Suzuka [1964] W.A.R. 112, 117.

58 Such a law would be one “affecting aliens in their character as such”: see Wynes, supra p. 215 n. 22, 303.

59 Moore, The Constitution of the Commonwealth of Australia (2nd ed. 1910) 464.

60 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 C.L.R. 129.

61 The power is, of course, subject to constitutional prohibitions, express and implied; the Commonwealth must not, therefore, discriminate against the States. See Melbourne Corporation v. The Commonwealth (the State Banking Case) (1947) 74 C.L.R. 31; Victoria v. The Commonwealth (the Payroll Tax Case) (1971) 122 C.L.R. 353.

62 See supra, text to pp. 231-232 n. 56.

63 Supra p. 215 n. 22, 603: “Under [s. 51(xix)] the Federal Parliament will be able to prohibit Chinamen, whether naturalized or not, from working in mines, or to permit them to work in mines”. See also Pryles, supra p. 231 n. 46, 3, 4-5; and supra p. 232 n. 57.

64 Under which Part II of that Act was not to have effect within any Dominion specified in the First Schedule “unless the Legislature of that Dominion” adopted it. The relevant “Dominion” specified in the First Schedule was “The Commonwealth of Australia”. Part II of the Act included s. 3(1), which provided that “[a] person to whom a certificate of naturalization is granted … shall … be entitled to all political and other rights powers and privileges, and be subject to all obligations, duties and liabilities, to which a natural-born British subject is entitled or subject, and, as from the date of his naturalization, have to all intents and purposes the status of a natural born British subject”. Part II of the Act was adopted by the Nationality Act 1920 (Cth) s. 17(1). The adoption of s. 3(1) of the Imperial Act was, in effect, a re-enactment of the Naturalization Act 1903 (Cth) s. 8 (though the latter was expressly confined to the territory of the Commonwealth). Interestingly, despite his narrow view of the Commonwealth's “naturalization” power, Professor Ryan did not question the validity of s. 8: supra p. 232 n. 56, 493. Presumably, he believed it was saved because of the limitation in its second paragraph, butthat paragraph would not apply to a British Act applying in a State by reception. The Imperial Act of 1914 was repealed in 1948: supra p. 230 n. 37.

65 [1899) A.C. 580.

66 Id. 586. (Emphasis added.) Lord Watson delivered the judgment.

67 Cunningham v. Tomey Homma [1903) A.C. 151, 156-157. The judgment was delivered by the Earl of Halsbury L.C.

68 E.g., Quong-Wing v. R. (1914) 49 Can. S.C.R. 440; (1914) 18 D.L.R. 121.

69 Supra text to n. 66 above.

70 See Union Colliery Co. of British Columbia v. Bryden [1899] A.C. 580, 587: the Provincial Acts applied only to alien or naturalized Chinese.

71 Supra text top. 233 n. 67.

72 (1914) 49 Can. S.C.R. 440,447. But see id. 454 per ldington J. (dissenting).

73 Cunningham v. Tomey Homma [1903] A.C. 151, 156 (even natural born British subjects of Japanese ancestry were denied the franchise); Quang-Wing v. R. (1914) 49 Can. S.C.R. 440, 463-465, 469 (Provincial Act applied to natural-born British subjects of Chinese ancestry).

74 As is noted by Ryan, supra p. 232 n. 56, 485 n. 67.

75 See Wynes, supra p. 215 n. 22, 303.

76 Supra p. 232 n. 61.

77 With respect, a dictum of Wolff C.J. in West v. Suzuka [1964] W.A.R. 112, 117, suggesting that, if Commonwealth entry permits placed no restriction on an alien's activities and were silent on the question, a State law denying aliens the right to work in mines would be inoperative under s. 109 may be an unduly broad application of the “covering the field” test under s. 109. See Campbell and Whitmore, Freedom in Australia (2nd ed. 1973) 200. Cf. Truax v. Raich (1915) 239 U.S. 33, 42 per Hughes J., delivering the opinion of the Court: “The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work”. But it should be noted that in the United States, the power to admit or exclude aliens is an exclusive federal power (id.), whereas the Commonwealth's power under s. 51(xix) is concurrent: Clark, Studies in Australian Constitutional Law (2nd ed. 1905) 96-102.

78 Whether it also allows the Commonwealth to pass laws in exercise of power is uncertain: Nettheim, “The Power to Abolish Appealsto the Privy Council from Australian Courts” (1965) 39 A.L.J. 39, 44; Zines, supra p., 223 n. 86,249.

79 This does not mean that s. 51(xxxviii) can be used to authorize a State to pass any law which only the United Kingdom Parliament could have enacted at the establishment of the Constitution, because the placitum is “subject to the Constitution”.

80 Each St,1te passed an Act requesting Commonwealth legislation in the form of the Coastal Waters (State Powers) Act, see e.g., Constitutional Powers (Coastal Waters) Act 1980 (N.S.W.).

81 Constitutional Powers (New South Wales) Act 1978 (N.S.W.); Constitutional Powers (Tasmania) Act 1979 (Tas.); Constitutional Powers (Request) Act 1980 (Vic.).