Opinion Number. 313

Subject

ALIENS WHETHER STATE HAS POWER TO ALTER LAWS RELATING TO

Key Legislation

CONSTITUTION, ss. 51 (xix). 107 : NATURALIZATION ACT 1903 : NATURALIZATION AND DENIZATION ACT OF NEW SOUTH WALES 1898 (N.S.W.), s. 4

Date
Client
The Secretary, Department of External Affairs

The Secretary, Department of External Affairs asks to be advised whether section 4 of the New South Wales Act No. 21 of 1898, the Naturalization and Denization Act, has been affected by the Federal Constitution or any legislation by the Federal Parliament, and observes that, if it has not, the power to amend presumably still rests with the State Parliament.

Section 4 above mentioned provides, inter alia, that real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject.

Under the Constitution the Federal Parliament has power to legislate with respect to naturalization and aliens. The power to so legislate is not expressed to be exclusive.

Under the power, relating to naturalization and aliens, conferred on it by the Constitution, the Federal Parliament has passed the Naturalization Act 1903. This Act provides for the granting of certificates of naturalization to aliens in certain cases and for the rights and privileges to be enjoyed by naturalized persons, but it does not affect the rights and disabilities of aliens otherwise than as regards the obtaining of naturalization. No Federal Act affecting the right of aliens to hold land in Australia has been passed.

I am of opinion that section 4 of the Naturalization and Denization Act of New South Wales 1898 has not been affected by the Federal Constitution or any legislation by the Federal Parliament.

The powers of the Parliaments of the States are preserved by section 107 of the Constitution, subject of course to the Constitution, and in the absence of any Federal legislation affecting the matter I am of opinion that the power to amend section 4 above still rests with the State Parliament.

[Vol. 6, p. 413]