THE ACT OF SETTLEMENT AND THE EMPLOYMENT OF ALIENS BY KEVEN BooKER* and GEORGE WINTERTON**

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 repug­ nant to Imperial legislation extending to the State by paramount force.

1. Introduction Imperial statutes became part of the law operating in Australian colonies in two ways. Statutes intended to apply in a colony were said to operate there by paramount force.1 Statutes not intended specifically to apply in a colony, but forming part of the law of England at the date of settlement of the colony (or some later date set by legislation)2 and applicable to the circumstances of the colony, were said to apply by way of reception.3 A colony could repeal or amend statutes inherited by reception, but not those applying by paramount force. 4 So far as that limit on colonial legislative

* LL.B. (Hons.) (W.A.); Lecturer in Law, The University of New South Wales. **LL.B. (Hons.), LL.M. (W.A.); Senior Lecturer in Law, The University of New South Wales. We would like to thank Mr Robert Spence for his assistance. 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: Inter­ pretation 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.

212 1981] The Act of Settlement and the Employment of Aliens 213 power is concerned, Australian States are still "colonies".5 Unlike the Commonwealth Parliament,6 a State legislature cannot enact legislation repugnant to an Imperial Act applying in the State by paramount force. A recent dispute in Victoria over the operation of section 3 of the Act of Settlement 1701 (U.K.)1 shows how inconvenient this lack of legislative power can be. Section 3, inter alia,8 prohibits the employment of aliens in "any office or place of trust either civill or military". In January 1978 the Anti-Discrimination Bureau of the Victorian Premier's Department noted that section 3 would prevent the employment of aliens in certain public service positions.9 The Bureau referred to an opinion given in 1967 by the Victorian Crown Solicitor in which he had advised that the relevant part of section 3 was in force in Victoria.10 A private member's Bill to amend the Public Service Act 197 4 (Vic.) to eliminate discrimination against the employment of aliens in the public service was introduced in the Victorian Parliament in March 1980,11 Between the lapse of this Bill and its reintroduction in the next session of Parliament,12 the Victorian Solicitor­ General advised that the restriction imposed by the Act of Settlement on the employment of aliens in offices of trust applied in Victoria by paramount force.13 Consequent upon the Solicitor-General's advice, several senior Victorian public servants were stood down from their positions and the question was referred to the Commonwealth.14 The Commonwealth

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. 6The 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. 1o Ibid. The opinion was on the eligibility of aliens for appointment to the teaching service: see Teaching Service Act 1958 (Vic.) s. 57 A. uSee Public Service (Employment of Aliens) Bill 1980, introduced by Messrs Cathie and Sidiropoulis on 25 March 1980; Vic. Pari. 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. Pari. 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. Pari. 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, "Consti­ tutional 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). 214 Federal Law Review [VOLUME 12

Solicitor-General advised that the relevant part of section 3 of the Act of Settlement 1701 (U.K.) was not in force in Victoria.15 The employees were then reinstated pending clarification of the issue and possible Commonwealth legislation to correct any Victorian legislative incapacity.16 This Article considers whether section 3 clause 5 of the Act of Settlement is in force in the Australian States-either by reception or by paramount force-and, if it is, how it might be amended or repealed without resort to the United Kingdom Parliament. 2. The purpose and content of the Act of Settlement The Bill of Rights 1689 (U.K.)17 settled the Crown on William and Mary, Prince and Princess of Orange. After they died the Crown was to go to the issue of Mary, upon failure of such issue to Princess Anne of Denmark and her issue, and finally to the issue of William. At the end of the seventeenth century there were no living issue of Mary to take the throne, and it seemed likely that both William and Anne would die without leaving living issue. The Act of Settlement was passed to supplement the succession provisions in the Bill of Rights and to protect further the rights and liberties of the subjects of the realm. The Act had four18 sections. Sections 1, 2, and 4 and parts of section 3 are still in force in the United Kingdom.19 Section 1 declared that after the provisions in the Bill of Rights, the next in line to the throne would be Princess Sophia, Electress of Hanover, and the "heirs of her body being Protestants". Pursuant to this new settlement, on the death of Queen Anne in 1714, the Hanoverian succession commenced with George I, Sophia's son. Section 2 provided that Roman Catholics could not inherit the Crown, and that persons who inherited under the new settlement should take the coronation oath20 and make the declaration set out in the Bill of Rights. Sections 1 and 2 are fundamental constitutional laws on the succession to the throne and the obligations of the monarch. Because the Crown was the executive in the Australian colonies, which were established in its name, sections 1 and 2 of the Act of Settlement, in so far as they identify the sovereign, were approprl.ate for reception. But it is more likely that these sections apply by paramount force because the Crown is described in section 1 as the Crown of "England France and Ireland and of the dominions thereunto belonging"; moreover, a fundamental law on the identity of the sovereign would apply to the colonies by necessary intend­ ment.21 Indeed covering clause 2 of the Commonwealth Constitution,

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. Pari. 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. 20Coronation Oath Act 1688 (1 Wm. and Mary, sess. 1 c. 6). 21 Law Reform Commission of New South Wales, Working Paper on Legislative 1981] The Act of Settlement and the Employment of Aliens 215 which provides that provisions of the Commonwealth of Australia Consti­ tution Act 1900 extend to Queen Victoria's "heirs and successors in the sovereignty of the United Kingdom" suggests that the statutory provisions which identify those heirs and successors are incorporated by reference into the Constitution Act. If this is so, sections 1 and 2 of the Act of Settlement are in force in Australia and cannot be repealed by either the Commonwealth or the State Parliaments.22 Even if sections 1 and 2 apply in Australia (whether by way of reception, paramount force or incorporation into the Constitution Act), it does not follow that clause 5 of section 3 (concerning offices of trust) is in force in Victoria or elsewhere in Australia. An Act may be partly in force by reception but otherwise not part of the law. 23 Similarly, some sections of an Act may apply by paramount force while others do not.24 If clause 5 of section 3 applies in Australia it must do so either by paramount force or by way of reception, because nothing in the Commonwealth Constitution

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. 51(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" (17 67) in Forsyth, Cases and 0 pinions on Constitutional Law (1869) 3, 4 and 1 Chalmers, supra n. 21, 200, 201. 216 Federal Law Review [VOLUME 12 or the various State Constitutions incorporates this clause, and the clause has not been adopted by any Commonwealth or State legislation.25 Section 3 of the Act of Settlement reads as if it were a completely separate statute. It does not deal with the identity of the sovereign. In its original form it consisted of eight clauses which were to control aspects of public law in the event of the House of Hanover acceding to the throne. It opens with its own preamble and enactment formula: And whereas it is requisite and necessary that some further provision be made for securing our Religion Laws and Liberties from and after the death of his Majesty and the Princess Anne of Denmark and in default of issue of the body of the said Princess and of his Majesty respectively: Be it enacted by the King's most excellent Majesty by and with the advice and consent of the Lords Spirituall and Temporall and Commons in Parliament assembled and by the authority of the same: 1. That whosoever shall hereafter come to the possession of this Crown shall joyn in communion with the Church of England as by law established. 2. That in case the Crown and Imperiall Dignity of this realm shall hereafter come to any person not being a native of this kingdom of England this nation be not obliged to ingage in any warr for the defence of any dominions or territories which do not belong to the Crown of England without the consent of Parliament. 3. That no person who shall hereafter come to the possession of this Crown shall go out of the dominions of England Scotland or Ireland without consent of Parliament. 4. That from and after the time that the further limitation by this Act shall take effect all matters and things relating to the well­ governing of this kingdom which are properly cognisable in the Privy Councill by the laws and customs of this Realme shall be transacted there, and all resolutions taken thereupon shall be signed by such of the Privy Councill as shall advise and consent to the same. 5. That after the said limitation shall take effect as aforesaid no person born out of the kingdoms of England Scotland or Ireland or the dominions thereunto belonging (although he be naturalized or made a denizen) except such as are born of English parents shall be capable to be of the Privy Councill or a member of either House of Parliament, or to enjoy any office or place of trust either civill or military or to have any grant of lands tenements or hereditaments from the Crown to himself or to any other or others in trust for him. 6. That no person who has an office or place of profit under the king or receives a pension from the Crown shall be capable of serving ~s a member of the House of Commons.

25 Contra Robin supra n. 9, 9 asserting (without giving any details) that the Act of Settlement was adopted in Australia in the 1850s. Of course, an Act may refer to the Act of Settlement without adopting its provisions; e.g. the Teaching Service Act 1958 (Vic.) s. 57 A. 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). 1981] The Act of Settlement and the Employment of Aliens 217

7. That after the said limitations shall take effect as aforesaid judges' commissions be made quamdiu se bene gesserint and their salaries ascertained and established but upon the address of both Houses of Parliament it may be lawfull to remove them. 8. That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament. These eight clauses fall into four categories. (a) Clause 1 supplements sections 1 and 2 of the Act of Settlement by guaranteeing that the succession would be not merely Protestant but Anglican. (b) Clauses 7 and 8 were intended to supplement the fundamental guarantees set out in the Bill of Rights. Similar clauses appeared in the "heads of grievance"26 which formed the basis of the Declaration of Rights (and therefore ultimately the Bill of Rights). It seems these clauses were left out of the Declaration of Rights as part of a compromise with William of Orange as to the conditions on which he was prepared to assume the throne, but the matter is not entirely clear.27 (c) Clauses 4 and 6 were designed to settle general constitutional problems which had arisen during William's reign but which had a long history.28 (d) The appointment of a Dutchman (William) to the throne had created special problems. One of William's principal motivations for taking up the offer of the Crown of England was to use the position to fight Louis XIV, King of France.29 William travelled abroad frequently3° and spent much of his time conducting wars on the Continent.31 He brought Dutch advisers with him and their position in the Court created a great deal of jealousy.32 Clauses 2, 3 and 5 were inserted in order to ensure that these problems would not arise if a person born in Germany were to take the throne under the new settlement. To understand clause 5 it is necessary to examine restrictions placed on aliens by the common law. 3. The political rights of aliens, denizens and naturalized subjects prior to the Act of Settlement At common law an alien was a person born outside the monarch's dominions.33 Aliens did not enjoy all the rights possessed by natural-born

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 Journal15, 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 1ll (1977) 20. 30 Gibbs, id. 70. 31[d. 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. 1a, 16a; 77 E.R. 377, 396; 1 Blackstone, Commentaries on the Laws of England (17th ed. 1830) 366, 373. 218 Federal Law Review [VOLUME 12

subjects. They could be appointed to the Privy Council,34 but they could not sit in Parliament,35 and they had no other political rights.36 Aliens could not serve on juries37 and prior to the Act of Settlement an alien would not have been able to occupy an "office or place of trust either civill or military".38 This was not merely because aliens could not hold real property and were therefore unable to occupy offices which had a real property qualification,39 but because there was a general rule against aliens holding public office.40 Before the introduction of the modern system of certificates of naturaliz­ ation41 there were two ways in which aliens could gain some or all of the private and public law rights of natural-born subjects. A special private Act of Parliament could be passed to make an alien a naturalized subject. Such a naturalization Act granted the person all the rights he would have had if he had been born within the monarch's dominions,42 including the capacity to hold real property, to sit in Parliament, and to occupy other offices of trust. The other process was executive denization (or endeniz­ ation). This was the exercise of a prerogative power under which an alien was made a denizen by grant of Letters Patent. Blackstone described a denizen as being in a "middle state" between an alien and a subject naturalized by an Act of Parliament.43 There were differences between the private law rights of denizens and naturalized subjects, stemming mainly from the fact that denization, unlike naturaliz­ ation, was not retrospective, but as late as 1869 it was still not clear precisely what the differences were.44 A denizen could hold real property and was, therefore, capable of receiving a grant of Crown land, but it is not clear what the political rights of denizens were prior to the Act of Settlement. As letters of denization could be granted for limited purposes or subject to conditions, they could be issued with restrictions on public law rights, but it is not clear whether a denizen could be granted all the political rights of natural-born subjects. Holdsworth asserted that denizens had no rights in public law .45 A denizen was denied a seat in Parliament in the Monmouth Election Case!6 and Coke noted that denizens could not sit in Parliament or hold other positions of judicature.47 Other authors have asserted that denizens were

34 R. v. Speyer [1916] 2 K.B. 858, 861. 35Id. 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. 1a, 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. as 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. 41Aliens Act 1844 (U.K.) (7 and 8 Vic. c. 66). 42 1 Blackstone, supra n. 33, 374. 43Id. 373. 44 Report of the Royal Commissioners for Inquiring into the Laws of Naturalization and Allegiance (1869) 25 House of Commons Parliamentary Papers 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. 1981] The Act of Settlement and the Employment of Aliens 219 subject to restrictions in matters of public law,48 but most statements on the difference between denization and naturalization mention only private law distinctions.49 The general form of the Letters Patent adopted during the reign of Elizabeth 150 and reproduced in twentieth century precedents51 provides that a denizen "may in all things be treated reputed held and governed as our faithful liege subjects born within our United Kingdom",52 and that he may "have and possess all and all manner of liberties franchises and privileges of our said United Kingdom".03 This suggests that denization could remove common law restrictions on the political rights of aliens. Apart from membership of the Privy Council, the rights denied to aliens, denizens and naturalized subjects by section 3 of the Act of Settlement were rights aliens did not possess prior to that Act coming into force. But naturalized subjects did enjoy those rights and denizens enjoyed some, if not all, of those rights. However, when the Hanoverian succession com­ menced, aliens would no longer be able to gain those rights by means of denization or naturalization. 4. Reception of the law on aliens The common law rules on the private law disabilities of aliens became part of the law in the Australian colonies by reception. 54 This is undoubtedly true also of the common law on the political rights of aliens. On the relevant reception dates for the six Australian colonies, clauses 1, 2, 5, 7 and 8 of section 3 of the Act of Settlement were in force in England. 55 In cases decided in New South Wales 56 and Canada57 it was assumed that the restriction in clause 5 on holding offices of trust became part of the law of the respective colony. Those cases do not indicate whether the relevant part of section 3 applied by reception or by paramount force, and pronouncements in both cases as to the application of the Act of Settlement were obiter.

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. 5111 Encyclopaedia of Forms and Precedents (2nd ed. 1925) 7. 52Jd. 33. 03Jd. 34. M 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] 2 K.B. 858, 866 and Kahn v. Board of Examiners (Viet.) (1939) 62 C.L.R. 422, 443. 56 Re Howard [1976] 1 N.S.W.L.R. 641. 57 R. v. Heighton (1) (1922) 69 D.L.R. 386 (N.S.S.C.). 220 Federal Law Review [VOLUME 12

It is submitted, however, that clause 5 was not received into the Australian colonies because it was a clause dealing with a local political problem arising from foreign-born Monarchs bringing foreign advisers with them. This problem was anticipated when Philip of Spain married Mary Tudor (Mary I). The first Marriage Treaty between them provided that "the said most noble Prince shall permit and suffer the said most gracious Queen his wife to have the whole disposition of all the Benefices and Offices, Lands, Revenues and Fruits of the said Realms and Dominions, and that they shall be bestowed upon such, as be naturally born in the same ...". 58 The first article in the second Marriage Treaty provided that "the said most noble Prince shall not promote, admit or receive to any Office, Administration or Benefit in the said Realm of England, and the Dominions thereunto belonging, any Stranger or Persons not born under the Dominion and Subjection of the said most noble Queen of England".59 However, when William and Mary came from the Netherlands to take up the Crown, Parliament was preoccupied with the faults of James II and the precedents in the Marriage Treaties apparently were forgotten. The fifth clause of section 3 of the Act of Settlement ensured that German advisers and officials would have no place in the administration of George I. Unlike the articles in the Philip and Mary Marriage Treaties, the Act of Settlement does not expressly refer to offices in the colonies. It is generally assumed that the fundamental guarantees contained in the Bill of Rights became part of the law in Australian colonies by way of reception!j(1 The reception of those provisions suggests that at least so much of section 3 of the Act of Settlement as was intended to supplement the Bill of Rights61 would also have been received. Yet, in Terrell v. Secretary of State for the Colonies,62 Lord Goddard C.J. held that the seventh clause of section 3 (the clause guaranteeing judges tenure during good behaviour) did not form part of the law in the Straits Settlements.63 The judgment spoke in general terms as to the applicability in the colonies of this clause of section 3, and was not based upon anything peculiar to the Straits Settlements. As the guarantee of tenure would have formed part of the Bill of Rights if all the "heads of grievance" had been included in the Declaration of Rights,64 yet was not received in the colonies, and as clause 7, like clause 5, controlled the conditions of membership of a public office, the result in Terrell strongly suggests that the latter clause was, likewise, not received.

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". 59Jbid. (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. 63Jd. 493. See also ''The observations of the attorney and solicitor-general, Ryder, and Murray, on the acts of the Jamaica assembly, in 17 51" in 2 Chalmers, supra pp. 214-215 n. 21, 105. 64 Supra p. 217 n. 27 and text. 1981] Tht: Act of Settlement and the Employment of Aliens 221

The reference in clause 5 to "either House of Parliament" supports non-reception on two grounds. First, reception would be conditional on the fortuitous circumstance of a colony's possession of a bicameral legis­ lature. Secondly, clauses 6 and 8 refer specifically to the House of Commons, and in Terrell the words "both Houses of Parliament" in clause 7 were read as meaning both Houses of the Imperial Parliament. 65 If "either House of Parliament" is read as being equivalent to "the House of Commons or the House of Lords", those words in clause 5 could not be applied to colonial legislatures. By way of contrast, the guarantees in the Bill of Rights refer to "Parliament" without any reference to the number of chambers or to the name of either House of the Imperial Parliament.66 The restriction in section 3 on the membership of the Privy Council could have had no application to the colonies and, if the above argument is correct, the same is also true of the restriction on membership of Parlia­ ment. This suggests that the prohibition on aliens, denizens and naturalized subjects holding offices of trust was not received as this is also a restriction on public office and it is contained in the same sentence as the other two restrictions. To decide otherwise would be to give this clause of section 3 a distorted operation.67 Some Canadian cases hold that the rule on reception is that the common law was generally received, and any exclusion is the exception, whereas in the case of statutes, reception is the exception. 68 This is not supported by the English and Australian authorities, and its correctness may be doubted. 69 However, in the application of the reception rules, the conclusion often reached is that the common law governs a situation, but a statutory provision was not received because it was enacted to remedy some purely British "mischief". An example in relation to the law on aliens is R. v. Valentine,70 where the Supreme Court of New South Wales held that a statutory provision guaranteeing aliens the right to a jury de mediatate linguae did not apply in New South Wales, although the common law on the rights of aliens clearly did become part of the law in the Australian colonies.71 An example relating to legislation on public office is R. v. V aughan72 which held that the Sale of Offices Act 1551 (U.K.) was "not adapted to the circumstances of a new colony"73 and hence did not apply in Jamaica; the common law was invoked to resolve the case. By analogy with both of these cases, it is submitted that the common law rules on the differences between the political rights, including the right to occupy public office, enjoyed by aliens, denizens, naturalized subjects and natural-born subjects, became part of the law of the Australian colonies, but the statutory modification in section 3 of the Act of Settlement did not.

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. 73Jd. 2500; 311. 222 Federal Law Review [VOLUME 12

5. Paramount force If, contrary to the view expressed above,74 section 3 clause 5 of the Act of Settlement became part of the law of the Australian colonies by reception, subject to the Commonwealth Constitution, the State Parliaments have unrestricted power to amend or repeal it.75 But they would not be able to do so if it applied by "paramount force".76 United Kingdom statutes enacted after the settlement of a colony (or some later date fixed for the reception of British legislation)17 can apply to that colony only by way of ~'paramount force"; legislation applies to a colony by "paramount force" when it is made applicable thereto by "express words or necessary intendment".78 Colonial legislation repugnant to such an Act of the British Parliament is inoperative to the extent of the repugnancy.79 Clearly, the Act of Settlement does not expressly provide that it applies to the colonies because it neither mentions them nor purports to apply to British possessions generally. But does clause 5 of section 3 apply by necessary intendment?80 (a) Pre-acquisition statutes It is, first, important to consider whether the application of the doctrine of paramount force applies identically to pre-acquisition British statutes and those enacted after the acquisition of a colony. If, as must be the case, it is the British Parliament's intention at the date of enactment of the statute which is crucial, how could the British Parliament of 1701 have intended the Act of Settlement to apply to Australia when its settlement lay a century in the future?81 Remarkably, this question has been ignored

74Supra p. 219 ff. Part 4. 75 The Colonial Laws Validity Act 1865 (U.K.} s. 3. 76Id. s. 2, quoted infra p. 228 n. 20. 77 See supra p. 212 n. 2. 78Colonial 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 alWafS been clear that post-settlement statutes could extend to a colony by necessary imphcation; 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. N 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 18I3-1865 (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"). 7DThe Colonial Laws Validity Act 1865 (U.K.) s. 2. so 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 1981] The Act of Settlement and the Employment of Aliens 223 by virtually every commentator. A distinction is always drawn between pre-settlement statutes, which can apply by reception, and those enacted after settlement, which can apply only by paramount force. A category of pre-settlement Acts applying by paramount force is rarely mentioned. The observations of Cardozo C.J. are a good example: A distinction is often drawn between the statutes of the mother country in existence at the settlement of a colony and those adopted afterwards. The first are deemed to have entered into the fabric of the common law, and, like the common law itself, became law in the colony unless unsuited to the new conditions. . . . The second were not operative beyond the limits of the realm of England unless expressly declared to be operative abroad.82 Obviously, some general statutes prevailing throughout the Empire necessarily must apply automatically by paramount force in new posses­ sions, because it would have been highly inconvenient for Parliament to re-enact the whole corpus of such legislation every time-often enough in the last century-a new possession was acquired; otherwise those statutes would, at most, extend to the possession by reception only, and be subject to amendment or repeal by its legislature. Hence, although direct judicial authority is sparse indeed,83 some statutes clearly do apply in subsequently­ acquired British possessions by paramount force.84 Indeed, it might be argued that the application of section 2 of the Colonial Laws Validity Act 1865 (U.K.) to Canada (established in 1867) 85 and Australia (established in 1901)86 is an instance of this, but it is a weak one, because section 2 did not introduce a new rule; it merely clarified and implemented existing legal principles.87 However, although pre-acquisition statutes clearly can apply by para­ mount force, Australian law reform commissions have merely assumed 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. S2Beers v. Hotchkiss (1931) 256 N.Y. 41; 175 N.E. 506, 510-511. See also Smith, supra n. 78, 469. 83 SeeR. 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 Biii, 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. 8ii E.g. Nadan v. R. [1926] A.C. 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. 224 Federal Law Review [VOLUME 12 that every pre-settlement statute of England or its successors which purports to apply throughout the British dominions necessarily will apply in the States by paramount force.88 This assumption is unwarranted. It is submitted that statutes purporting to apply throughout the British dominions do not necessarily apply by paramount force in subsequently­ acquired possessions; a fortiori where the Act allegedly applies by necessary intendment. Unless Parliament has expressly so provided,89 a statute will not apply by paramount force in possessions acquired in the future unless it can be implied that Parliament intended that it should apply to them as well as to current possessions. Parliament will impliedly so intend, it is submitted, when legislating on fundamental constitutional matters, and when legislation expressly applying to all British possessions, or a relevant class of them, is suitable for application in the after-acquired possession. If Parliament intends legislation to apply in all subsequently­ acquired possessions it must contemplate that the legislation will be suitable to the conditions of any conceivable future possession. Three factors highlight the error in assuming that statutes purporting to apply to all British possessions90 apply also to those acquired subsequently. First, the fact that Parliament has occasionally expressly provided that legislation should extend to possessions subsequently acquired91 suggests the need for caution in assuming that Parliament so intended in the absence of such expression. Secondly, some statutes purporting to apply throughout the dominions (but not referring to those to be acquired in the future) are obviously unsuitable to the conditions of various possessions acquired subsequently. Can it be supposed, for instance, that the sixteenth and seventeenth century Parliaments intended statutes entrenching the Church of England and christian religious observances92 to be applied by para-

88 New South Wales: Report of the Law Reform Commission on the Application of Imperial Acts (L.R.C.4) (1967) 136-140; the Imperial Acts Application Act 1969 (N.S.W.) Sch. ill; 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. Vill c. 12) s.1; the Act of 1981] The Act of Settlement and the Employment of Aliens 225 mount force in the Asian colonies acquired long afterward, when some of those provisions may even be unsuited to colonies like Australia?93 In ascertaining Parliament's (presumed) intention regarding future posses­ sions when enacting statutes purporting to apply throughout the British dominions, but not referring to those possessions to be acquired in the future, surely such Acts must be interpreted subject to the principle, familiar in the case of the doctrine of reception,94 that legislation clearly unsuitable for application in a subsequently-acquired possession will not apply there by paramount force. Thirdly, and undoubtedly less significant, is the consideration that, as Parliament would have realized,95 it is generally an unwise policy to apply legislation to a community which was neither represented in its passage nor able to make submissions in regard to it.96 In sum, legislation enacted prior to the acquisition of a British colony can apply there by paramount force in three ways: (a) if it expressly applies to British possessions to be acquired in the future;97 (b) if it expressly applies to all British possessions, or a relevant class of them,98 and is suitable for application in the subsequently-acquired colony; (c) if it does not expressly extend to the dominions but applies therein by necessary intendment. It follows from the discussion above on the need for caution in applying to subsequently-acquired possessions by paramount force statutes expressly applying throughout the dominions that even greater care should be taken when considering the possibility of applying to such possessions by paramount force legislation which on its face does not purport to extend to the dominions. After all, Parliament usually mentioned the dominions when it intended legis­ lation to extend to them by paramount force. Only fundamental constitutional laws, such as those relating to the Crown and the succession to the throne, are likely to apply to subsequently-acquired colonies by paramount force.99

Uniformity 1551 (5 and 6 Edw. VI c. 1) s. 1; Act for a Publick Thanksgiving to Almighty God Every Year on the Fifth day of November 1605 (3 Jac. 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. 94Supra p. 212 n. 3 and text; 1 Blackstone, supra p. 217 n. 33, 106; Castles, supra p. 215 n. 23, 17-22. 95 C/. the Taxation of Colonies Act 1778 (18 Geo. III c. 12). 96See 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. os 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. 226 Federal Law Review [VOLUME 12

(b) The Australian Courts Act 1828 (U.K.) section 24 Considering the above, does section 3 clause 5 of the Act of Settlement 1701 apply in the Australian States by paramount force? Notwith­ standing its broad language-"all laws and statutes in force within the realm of England [on 25 July 1828]"-section 24 of the Australian Courts Act 1828 (U.K.) ,1 which authorized the legislature to "establish such limitations and modifications of any such laws and statutes . . . as may be deemed expedient", probably applied only to Imperial statutes received by reception, and not to those extending to the colony by paramount force. 2 On a natural reading of section 24, the phrase "all ... statutes in force within the realm of England" would not be confined to statutes in force only in England,3 but would include legislation applying there as well as in the dominions. But so significant a provision is unlikely to have been hidden away near the end of an Act "to provide for the Administration of Justice"4 in a small colony. In any event, section 2 of the Colonial Laws Validity Act 1865 (U.K.),5 as it is generally interpreted in regard to subsequently-acquired colonies,6 would have impliedly repealed section 24 of the Australian Courts Act 1828 (U.K.) to the extent of any incon­ sistency between them. Hence, Imperial legislation enacted before 25 July 1828 can apply by paramount force in New South Wales, Tasmania, Queensland and Victoria. (c) The Act of Settlement 1701 section 3 clause 5 If section 3 clause 5 of the Act of Settlement were to extend to the dominions by paramount force, it can only be by necessary intendment, because the Act does not expressly purport to apply beyond England. Whether a statute was intended to apply to a colony by necessary intend­ ment must, obviously, be gathered from its provisions construed in the light of all the surrounding circumstances, including its subject matter, the events leading to its enactment, and, in this case, the fact that it was enacted almost a century before Australia was colonized. As the Privy Council noted, when an English Act is silent regarding the geographical extent of its application [t]he question whether such an Act applied outside England ... must depend ... on the intention of its framers, to be deduced from the nature of its subject-matter and substantive provisions. It would presumably have no such external application if its subject-matter were beyond question of merely insular and domestic import. 7

19 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 Ct. 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 1981] The Act of Settlement and the Employment of Aliens 227

There is no direct authority on the application of section 3 clause 5 in Australia by paramount force,8 and opinion on its application in America, either by reception or paramount force, is divided and generally unhelpful.9 As was seen above,I0 the clause was concerned solely with local English problems, and the language of much of clause 5 made its application out­ side England difficult, if not impossible. Clearly, unlike sections 1 and 2,U section 3 clause 5 did not involve "matters of Imperial concern" ,12 and did not extend to the Australian colonies by paramount force. This conclusion gains some support from a comparison between section 3 clause 5 and the Marriage Treaties of Philip and Mary13 and section 1 clause 4 of the Declaration of Rights 1689. The Marriage Treaties, which deal with the same general subject as section 3 clause 5-the employment of aliens in public office-expressly purported to apply to the Queen's dominions. Had it been intended to give the Act of Settlement a similar application, bearing in mind the precedent of those Treaties, Parliament could be expected to have made express provision on the matter. But it did not do so. Moreover, considering the great constitutional struggles of the seventeenth century,I4 leading ultimately to parliamentary control over taxation, recognized in section 1 clause 4 of the Declaration of Rights 1689,15 that clause might have been thought to establish fundamental constitutional law throughout the Empire. But, admittedly, it did not involve a matter of "Imperial concern" ,16 and the Supreme Court of Queensland rightly held that clause 4 did not apply in Queensland by paramount forceP But, if that important constitutional provision, contained in a statute settling the Constitution, did not apply in the colonies by paramount force, surely 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.). s 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 Supreme Court did not refer to the Colonial Laws Validity Act 1865 (U.K.) s. 5, as to which see text to nn. 18-22 infra. 228 Federal Law Review [VOLUME 12 section 3 clause 5 of the Act of Settlement, which on its face addresses purely local problems, similarly cannot extend to them by paramount force. (d) The Colonial Laws Validity Act 1865 (U.K.) section 5 Finally, even if section 3 clause 5 of the Act of Settlement 1701 were to apply in the States by paramount force, does section 5 of the Colonial Laws Validity Act 1865 (U.K.) authorize them to remove the disqualifi· cation from membership of Parliament imposed on aliens?18 Section 5 of the Colonial Laws Validity Act provides, as far as is material here: [E]very representative legislature shall . . . have, and be deemed at all times to have had, full power to make laws respecting the Consti· tution, Powers, and Procedure of such legislature; .... Two questions arise regarding the application of section 5 to section 3 clause 5 of the Act of Settlement (assuming it were to apply by paramount force). First, would a law authorizing aliens to sit in Parliament be one "respecting the Constitution, Powers, and Procedure" of the legislature?; and secondly, does section 5 authorize a State Parliament to enact laws repugnant to pre-1865 Imperial legislation applying in the State by paramount force? It is submitted that both questions must be answered affirmatively. Surely, an Act regulating eligibility for membership of Parliament is a law respecting its "Constitution" within section 5 of the Colonial Laws Validity Act.l9 However, authority is sparse on the second question, the answer to which requires resolution of the apparent inconsistency between sections 2 and 5 of the Colonial Laws Validity Act, neither of them being expressly subject to the other.20 In a judgment with which the Privy Council was "in almost complete agreement'',21 Isaacs and Rich JJ. held, correctly it is submitted, that on its limited subject matter section 5 authorized colonial (representative) legislatures to amend or repeal pre-1865 Imperial legis­ lation applying in the colony by paramount force. Whatever colonial restrictions existed immediately prior to the passing of the Colonial Laws Validity Act must yield to the later will of the Imperial Parliament as expressed in sec. 5. That section ... works an implied repeal of every prior enactment with which it is inconsistent. The repugnancy to a former Act of a later Act competently passed is fatal to the earlier one.

18 As the Victorian Government was reportedly advised: Premier Hamer, 11 September 1980, Vic. Pari. 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 Apri11982 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 with s. 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". 21McCawley v. R. [1920] A.C. 691, 701. 1981] The Act of Settlement and the Employment of Aliens 229

At the moment, therefore, of the passing of the Colonial Laws Validity Act 1865, sec. 5 was, so far as its language extends, an absolute Charter, no matter what the British legislature had previously said. It is as if the Imperial Parliament had said: "Notwithstanding anything contained in or omitted from the Constitutional law of any colony, be it enacted" & c. But sec. 2 does operate to this extent, that if by any later British legislation any provision is made repugnant to sec. 5, then that section must pro tanto give way to the later legis­ lation. And if in those circumstances a colony legislates repugnantly to the later enactment, sec. 2 operates to avoid the colonial legislation so far as it is so repugnant.22 Accordingly, as the Act of Settlement 1701 preceded the Colonial Laws Validity Act, the States can amend or repeal so much of it as relates to the "Constitution, Powers, and Procedure" of the legislature. 6. Commonwealth legislation As has been seen,23 section 3 clause 5 of the Act of Settlement 1701 divested naturalized persons of rights they had previously enjoyed and, in regard to the matters referred to, reduced them to the level of aliens. Although naturalized foreign protestants had been able to hold office in America since 1740,24 in the United Kingdom naturalized persons remained subject to the disabilities imposed by the Act of Settlement until 1844.25 In the first general naturalization Act, enacted that year,26 naturalized persons were granted "all the Rights and Capacities which a natural-born Subject . . . can enjoy or transmit", except that they remained unable to sit in Parliament or become a member of the Privy Council.27 The Act, which did not purport to extend to British possessions, was adopted in New South Wales in 1848.28 However, doubts having arisen as to whether

22McCawley v. R. (1918) 26 C.L.R. 9, 50-51 per Isaacs and Rich JJ. (dissenting). For a possible qualification 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 fJ. 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 ld. 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. 230 Federal Law Review [VOLUME 12 the Act of 1844 applied in the colonies, the Imperial Parliament provided, three years later, that the 1844 Act had not extended to them,29 validated colonial legislation "imparting ... the Privileges ... of Naturalization .•. within the ... Limits of such Colonies" ,oo and in effect authorized colonial legislatures to enact such measures in the future.31 The Australian colonies passed a number of Acts pursuant to this provision.32 The Acts of 1844 and 1847 were repealed by the Naturalization Act 187()33 which, for the first time, granted naturalized persons "all political and other rights, powers, and privileges ... to which a natural-born British subject is entitled ... in the United Kingdom"34 and, as in 1847, authorized British possessions to grant the privileges of naturalization within their territoriallimits.35 The Australian colonies again enacted legislation pursuant to this provision.36 The 1870 Act was repealed by the British Nationality and Status of Aliens Act 191437 which expressly exempted naturalized persons from the restrictions imposed by section 3 clause 5 of the Act of Settlement 1701 ;38 but this provision (inter alia) was not to apply to the Dominions unless their legislatures adopted it.39 Part II of the Imperial Act of 191440 was adopted by the Commonwealth in 1920.41 Accordingly, the Commonwealth Parliament has amended section 3 clause 5 of the Act of Settlement (if it extended to Australia, which is very doubtful) 42 by excluding naturalized persons from its disabilities, and this amendment is unaffected by the subsequent repeal43 of the Nationality Act 1920.44 Indeed, the Common­ wealth Parliament had effectively amended section 3 clause 5 of the Act of Settlement as early as 1903.%

29 An Act for the Naturalization of Aliens 1847 (10 and 11 Vic. c. 83) s. 3. 30 I d. s. 1. 31 I d. 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). 35Jd. 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. %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. 1981] The Act of Settlement and the Employment of Aliens 231

(a) Section 51(xix) Apart from its power to make laws with respect to "Naturalization and aliens",46 the Commonwealth Parliament clearly has the power, which it has exercised,47 to determine whether aliens and naturalized persons are qualified to join its civil48 and military49 services, and to vote at federal elections.50 But can the Commonwealth determine these issues for State governments and legislatures?51 Many Commonwealth powers impinge upon the subject of aliens,52 but obviously the primary one is section 51 (xix)-"Naturalization and aliens". Judicial comment on this placitum is confined to recognition that it authorized the Commonwealth to "determine the conditions under which aliens may be admitted to the country, the conditions under which they may be permitted to remain in the country, and the conditions under which they may be deported from it".53 But there is only sparse academic comment on the question whether the power extends beyond the admission and expulsion of aliens and the eligibility, conditions and procedure for naturalization, and authorizes the Commonwealth to determine the civil and political rights of aliens and naturalized persons. Some commentators have attached importance to the fact that section 51 (xix) refers to "aliens", not the status of "alienage",54 and "naturaliz­ ation", not "naturalized persons", the status of being "naturalized" or even "nationality".55 This has led to the conclusion that, even though the Commonwealth may be able to define the rights of aliens, it cannot designate the rights attendant upon the status of being "naturalized". The most detailed analysis is that of Professor Ryan: What has never been definitively settled ... is the wider question ... whether the Commonwealth Parliament has power to legislate as to

46 Commonwealth Constitutions. 51 (xix). For the ambit of this power, see genera!ly 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. 49fd. ss. 51(vi), 52(ii) and 69. 50 ld. ss. 8, 30. But see id. s. 41. The Constitution itself requires members of Parlia­ ment 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. Calwe/1 (1949) 80 C.L.R. 533, 556, 585. Of course, in time of a defence emergency, the defence power-s. 51 (vi)-can also be employed in expelling aliens: Ferrando v. Pearce (1918) 25 C.L.R. 241, 253, 263, 270; Koon Wing Lau v. Calwe/1 (1949) 80 C.L.R. 533, 556, 579, 580, 586, 594-595. 54 Wynes, supra n. 215 n. 22, 303. 55fbid. 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 'naturaliz­ ation', 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'?" 232 Federal Law Review [VOLUME 12

the consequences of alienage or naturalization, or is confined merely to determining what shall constitute either the one or the other. It is suggested that the Commonwealth power does extend to the regulation of the consequences of alienage . ... [W]hilst the power to make laws with respect to aliens is a power to regulate the status of persons, and hence the manifold relations in which they stand to the State and its citizens, the power to make law with respect to naturalization is merely a power to regulate the process by which a person becomes a subject of the State. The writer ... agrees with Dr Wynes ... that the Commonwealth power is limited to defining the persons who, the conditions under which, and the procedure whereby a person ~ay become naturalized. When a person has been naturalized . . . he will fall outside the ambit of the Commonwealth's power to legislate with respect to aliens; but the Commonwealth's naturalization power does not enable it to legislate with respect to naturalized personsf>6 On this view, the Commonwealth has power to specify the disabilities borne by aliens;57 clearly, the power extends to the removal of all disabilities dependent upon alienage.58 Indeed, many years ago Sir Harrison Moore observed that it may be presumed that the Commonwealth has power to remove disabilities of aliens existing at common law, and to secure to aliens, whether in pursuance of treaties or otherwise, the ordinary common rights of inhabitants. An exception must probably be made in the case of the electoral franchise of the States and eligibility for the State Parliament; and any public body or office organized by the States would, it is submitted, be governed wholly by State laws.59 However, in so far as his "exception" is concerned, it must be remembered that Moore's comment was published in 1910, when the doctrines of reciprocal immunity of instrumentalities, reserved State powers, and single­ subject characterization of statutes still held sway in the High Court. These doctrines were swept away by the Engineers CaseOO and it is submitted that the Commonwealth has the power to specify what disabilities, if any, should be borne by aliens in any activity in Australia-federal, State, or private.61 With respect, it is submitted that Professor Ryan and Dr Wynes adopted an unduly narrow interpretation of the Commonwealth's "naturalization" power. The act of "naturalization" is meaningless in itself; it has meaning only when its consequences are defined. Hence, there would be little point in the Commonwealth having power to determine who may be naturalized,

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. os 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. 1981] The Act of Settlement and the Employment of Aliens 233 and the conditions and procedure involved,62 if it cannot also define the act's consequences. This seems to have been the view not only of Quick and Garran,63 but also of the British Parliament in enacting section 9 (1) of the British Nationality and Status of Aliens Act 1914.64 This interpretation of the "naturalization" power also derives some support, it is submitted, from the interpretation of the identical power of Canada in section 91(25) of the British North America Act 1867. In Union Colliery Company of British Columbia Ltd v. Bryden65 the Privy Council held that "[t]he subject of 'naturalization' seems prima facie to include the power of enacting what shall be the consequences of naturaliz­ ation, or, in other words, what shall be the rights and privileges pertaining to residents in Canada after they have been naturalized".66 Unfortunately, only three years later, the Privy Council resiled from its earlier view: [T]he language of [s. 91 (25)] does not purport to deal with the consequences of either alienage or naturalization. It undoubtedly reserves these subjects for the exclusive jurisdiction of the Dominion -that is to say, it is for the Dominion to determine what shall constitute either the one or the other, but the question as to what consequences shall follow from either is not touched. The right of protection and the obligations of allegiance are necessarily involved in the nationality conferred by naturalization; but the privileges attached to it, where these depend upon residence, are quite inde­ pendent of nationality.67 The resulting confusion as to the ambit of section 91 (25) has never been resolved,68 but it is submitted that the interpretation in Bryderf39 is to be preferred; it was part of the ratio decidendi of the case,70 whereas the

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, but that 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. 66Jd. 586. (Emphasis added.) Lord Watson delivered the judgment. 61 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: 234 Federal Law Review [VOLUME 12 dicta in both Cunningham v. Tomey Homma71 and Quong-Wing v. R.,72 which involved legislation discriminating on the ground of race, not alienage or naturalization,73 were obiter. Moreover, all the cases com­ menting on section 91 (25) have concerned the validity of Provincial, not Dominion, legislation, a fact which, while it ought perhaps to be irrelevant to the interpretation of the power,74 undoubtedly was not.75 In sum, it is submitted that, as in the case of the "aliens" power, under the "naturalization" power the Commonwealth can determine what rights and obligations flow from naturalization and (subject to constitutional prohibitions76) can define these rights and obligations in any activity in Australia-whether federal, State, or private. Of course, pursuant to section 109 of the Commonwealth Constitution, State Acts inconsistent with such Commonwealth legislation would be inoperative to the extent of the inconsistency.77 (b) Section 5l(xxxviii) Although doubt about the application of section 3 of the Act of Settle­ ment 1701 could be resolved by ad hoc legislation passed under the "Naturalization and aliens" power (section 51 (xix) ), legislation giving power to the States to pass legislation repugnant to Imperial statutes would be preferable. This could be achieved by means of a British Act of Parlia­ ment extending the terms of the Statute of Westminster to the Australian States, or by Commonwealth legislation relying on section 51 (xxxviii) of the Constitution. The ambit of this placitum has not been tested in the courts, but its language seems to contemplate Commonwealth legislation authorizing the exercise of legislative power.78 If this is correct, at the very least the Commonwealth can authorize the State Parliaments to pass laws which only the United Kingdom Parliament could have enacted at the establish- 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 Idington J. (dissenting). 73 Cunningham v. Tomey Homma [1903] A.C. 151, 156 (even natural-born British subjects of Japanese ancestry were denied the franchise); Quong-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 Appeals to the Privy Council from Australian Courts" (1965) 39 A.L.J. 39, 44; Zines, supra p. 223 n. 86, 249. 1981] The Act of Settlement and the Employment of Aliens 235 ment of the Constitution.79 Laws repugnant to Imperial statutes fit this description. The formula used for the Coastal Waters (State Powers) Act 1980 (Cth)80 could be adopted, but there is no reason for the Common­ wealth to wait for a request from all the States; section 51 (xxxviii) only requires the request and consent of States "directly concerned". To take the Act of Settlement as an example, if Victoria were authorized by Commonwealth legislation to pass a law repugnant to section 3 it is difficult to see how any other State could be said to be directly concerned. Three States have already enacted legislation requesting a Commonwealth law empowering them to pass laws repugnant to Imperial statutes.81 There may be political reasons for refusing to accede to such requests in the absence of similar requests from the other States, but there is no consti­ tutional impediment thereto.

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.).