Opinion No. 1483
NATURALISATION : CONDITIONS AS TO EMPLOYMENT
limitation or regulation of employment of Southern Europeans in sugar industry: naturaliSation and aliens: conditions limiting privileges as British subjects: implications of treaty with italy
NATIONALITY ACT 1920 s 11: TREATY OF COMMERCE AND NAVIGATION BETWEEN UNITED KINGDOM AND ITALY done at Rome on 15 June 1883  ATS 65 art XIIII
13 February 1931
The Secretary, Sugar Inquiry Committee
I have been verbally requested by a member of the Sugar Inquiry Committee
(Mr. A.R. Townsend) to supply advice on the question whether the Commonwealth or the States could legally enter into any arrangement having for its object the limitation or regulation of the employment of Southern Europeans in the sugar industry.
Any such arrangement would require to be authorized, so far as the Commonwealth is concerned, by Commonwealth legislation and it is necessary therefore to examine the question from the point of view of the Commonwealth’s power to legislate in the direction of limiting or regulating the employment of Southern Europeans in any particular industry.
It is pointed out that the term ‘Southern Europeans’ would include naturalized British subjects who were of some Southern European race, as well as unnaturalized persons. It does not appear, however, that for the purposes of regulating the employment of such persons it is necessary to draw any distinction. I am not aware of any discrimination under any Commonwealth statute between aliens and British subjects in relation to employment.
Under the Constitution the Commonwealth has power to legislate with respect to naturalization and aliens. So far as persons who may become naturalized are concerned it is legally possible to attach to their naturalization conditions limiting their privileges as British subjects. This has already been done by the proviso to section 11 of the Nationality Act 1920.
The section, after affirming that a naturalized person is entitled to all rights and privileges and subject to all duties and obligations to which a natural born British subject is entitled or subject, goes on to limit that provision by the following proviso:
Provided that where, by any provision of the Constitution or of any Act or State Constitution or Act or of any Ordinance of a Territory, a distinction is made between the rights, powers or privileges of natural born British subjects and those of persons naturalized in the Commonwealth or in a State or Territory, as the case may be, the rights, powers and privileges conferred by this section shall, for the purposes of that provision, be only those (if any) to which persons so naturalized are therein expressed to be entitled.
I am accordingly of opinion that it is competent for the Commonwealth Parliament to legislate in the direction of limiting or placing conditions on the rights of employment of both aliens and naturalized persons in certain industries and of making such provision as would ensure that they do not form themselves into communities.
I understand that those Southern Europeans who are engaged in the sugar industry are principally Italians, and in this connexion it is necessary to consider the effect of
Article XIII of the Treaty of Commerce and Navigation between Her Majesty and the King of Italy made in 1883. The terms of Article XIII are as follows:
Privileges of Subjects—National Treatment.
The subjects of each of the Contracting Parties who shall conform themselves to the laws of the country:
- Shall have full liberty, with their families, to enter, travel, or reside in any part of the dominions and possessions of the other Contracting Party.
Hiring of Houses, etc.
- They shall be permitted to hire or posses the houses, manufactories, warehouses, shops, and premises which may be necessary for them.
Employment of Agents
- They may carry on their commerce either in person or by any agents whom they may think fit to employ.
Persons and Property—Passports, Taxes, etc.
- They shall not be subject in respect of their persons or property, or in respect of passports, nor in respect of their commerce or industry, to any taxes, whether general or local, or to imposts or obligations of any kind whatever other or greater than those which are or may be imposed upon native subjects.
While it may be possible that some restriction in employment which is under contemplation is not strictly forbidden by the terms of the article, it is difficult to see how any such restriction would not be a breach at least of the spirit of the article. This Treaty was acceded to by the States of Queensland and New South Wales (among others) on
10 March 1884, and it is highly probable that any action taken which prevented or restricted Italians in the carrying out of work in sugar plantations would be quickly followed by diplomatic representations on behalf of Italy to the Commonwealth Government. The article, of course, only protects Italians who are not naturalized as British subjects, but it appears undesirable that the rights of equal opportunity should be denied to such persons of Italian race as have received certificates of naturalization.
[Vol. 24, p. 925]