Opinion Number. 44



Key Legislation

CONSTITUTION, ss. 108, 117, 118


The question is whether under section 117 of the Constitution a Chinese naturalized in Victoria is entitled to pass into New South Wales without being subjected to any hindrance occasioned by the Immigration Restriction and Chinese Acts of New South Wales.

Section 117 of the Constitution is as follows:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Naturalization confers upon an alien the rights and privileges of a British subject. These rights and privileges are conferred under statutory powers, but-subject to the statute-at the discretion of the Executive.

Naturalization under the law of a colony only confers the rights of a British subject within that colony. See Lefroy, Legislative Power in Canada, p. 329; Report of Naturalization Laws Committee, presented to Imperial Parliament in 1901.

The question is whether by virtue of section 117, the rights and privileges so conferred upon an alien within one State are now extended so as to give him similar rights throughout the whole of the Commonwealth.

The Constitution of the United States provides (Article IV, section 2) that 'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States'. A similar provision was proposed in this Constitution but was negatived by the Convention (see Quick & Garran, pp. 953-4). Section 117 was then substituted.

The object of section 117 is to prevent discriminating legislation or administration by a State; not to give to a resident in one State the same rights and privileges throughout the Commonwealth as are conferred upon him by the statutes of that State. Its object is to protect him from 'disability or discrimination'-not to extend to him any new privilege or immunity. As the grant of this privilege is entirely optional and discretionary in each State, a reading which would bind all the States by the discretion of any one of them might be regarded as a serious invasion of the rights of some or all of those who were thus deprived of this discretion.

The refusal to recognise as a British subject in one State a person upon whom the privilege of naturalization has been conferred in another State does not in my opinion constitute a disability or discrimination within the meaning of section 117.

Mr Justice Clark (Australian Constitutional Law, pp. 96-19102) favours the conclusion that, pending the passing of a Federal naturalization law, naturalization under the law of a State confers naturalization throughout the Commonwealth, by the combined operation of sections 108 and 118. He cites United States v. Villato 2 Dall. 370, as abrogating the authority of Collet v. Collet 2 Dall. 294, and establishing the principle that State naturalization laws become inoperative on the adoption of the Federal Constitution. He argues that under the Commonwealth Constitution, section 108 continues the State naturalization laws, and section 118, by requiring full faith and credit to be given, throughout the Commonwealth, to the laws, the public acts and records of every State, makes it necessary to accord to a person naturalized in one State the status of a British subject in all the States.

But section 118 only requires that the laws of the States should be recognised for what they are; not that they should be given an exterritorial application. Questions of marriage, divorce, and legitimacy, which Mr Justice Clark cites as parallel, are not really so. The status involved in those cases is a status which must attach to a person wherever he goes; whereas the status conferred by colonial naturalization need only attach within the territorial limits of the colony. This clause in the United States Constitution does not appear to have been relied upon in this connection in any case.

Nor do the American cases support Mr Justice Clark's contention that in the United States, on the adoption of the Federal Constitution, the State naturalization laws became inoperative. In Collet v. Collet it was held that the States had a concurrent power of naturalization. In United States v. Villato the decision was merely that the naturalization laws of Pennsylvania were repealed by the new Constitution of the State of Pennsylvania. It is true that the power of naturalization has since been held to be exclusive; but by this it is only meant that State laws passed subsequently to the adoption of the Constitution, or superseded by the Federal naturalization law, were inoperative (Chirac v. Chirac 2 Wheat. 268; License Cases 5 How. 584-5; Dred Scott v. Sandford 19 How. 418-22; Burgess, Political Science, II, p. 144, cited Quick & Garran, p. 601).

I know of no American authority for the proposition that State naturalization laws became inoperative on the establishment of the Federal Constitution; but the American cases show clearly that no State can make a foreigner a citizen of the United States, or entitle him to the privileges or immunities of a citizen in another State (Dred Scott v. Sandford).

Pending the establishment of free trade, commerce, and intercourse among the States under section 92 of the Constitution, each State may apply its Immigration Restriction Acts and Chinese Acts to immigrants from other States.

[Vol. 1, p. 314]