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".