THE ALIENS ACTS, 1867 to 1958

Transcription

1 523 THE ALIENS ACTS, 1867 to 1958 Aliens Act of 1867, 31 Vic. No. 28 Amended by Statute Law Revision Act of 1908, 8 Edw. 7 No. 18 Aliens Act and Another Act Amendment Act of 1948, 13 Goo. 6 No. 10 Aliens Acts and Another Act Amendment Act of 1952, 1 Eliz. 2 No. 22 Statutes Amendment Act of 1956 (5 Eliz. 2 No. 18) Aliens Acts Amendment Act of 1958, 7 Eliz. 2 No. 57 An Act to Consolidate and Amend the Laws relating to Aliens. [Assented to 28 December 1867] [Preamble repealed by the Statute Law Revision Act of 1908, s. 2, title ACTS OF PARLIAMENT] PRIVILEGES OF WOMEN 1. Persons bom of a British mother. 7 & 8 Vic. c. 66 s. 3. Every person now born or hereafter to be born out of Her Majesty's dominions of a mother being a natural born subject of the United Kingdom of Great Britain and Ireland shall be capable of taking to him or her or his or her heirs executors or administrators any estate real or personal within the colony of Queensland by devise or purchase or inheritance or succession. 7 & 8 Vic. c. 66 referred to in this section and elsewhere is the Naturalization Act, 1844 (Imperial), now repealed. As to rights of aliens to hold property, see also s. 3 and notes. 2. Woman naturalized by marriage. 7 & 8 Vic. c. 66 s. 16. Any woman married or who shall be married to a natural born subject or person naturalized shall be deemed and taken to be herself naturalized and have all the rights and privileges of a natural born subject within the said colony. ALIENS IN GENERAL 3. Alien friends may hold personalty. 7 & 8 Vic. c. 66 s. 4. (1) Every alien being the citizen or subject of a friendly state shall and may take and hold by purchase gift bequest representation or otherwise every species of personal property except chattels real as fully and effectually to all intents and purposes and with the same rights remedies exemptions privileges and capacities as if he or she were a natural born subject of the United Kingdom of Great Britain and Ireland. (2) (a) In this subsection the term "Minister" means the Attomey General or other Minister for the time being charged with the administration of this Act. (b) Any and every alien shall and may- (i) notwithstanding any provision of any other Act or law; but

2 524 ALIENS Vol. 1 (ii) as respects real property or chattels real, subject to the Minister permitting him in writing to take real property, take and hold by purchase, gift, bequest, representation, or otherwise every species of property, real and personal, movable and immovable, as fully and effectually to all intents and purposes and with the same rights, remedies, exemptions, privileges, and capacities as if he or she were a British subject under and within the meaning of the Nationality and Citizenship Act of the Commonwealth (or of any Act passed in amendment thereof or substitution therefor). (c) The Minister may- (i) refuse to grant to an alien a permit under this subsection without assigning any reason for so doing; (ii) require an applicant for a permit under this subsection to furnish to him all such information and particulars as he deems necessary in the circumstances, and further require any information or particulars so furnished to be verified as he shall direct; (iii) grant to an alien a permit under this subsection in respect of any specified real property or chattel real, or any specified estate or interest in real property or chattels real or any specified estate or interest in any specified real property or chattel real. (d) A permit granted to an alien under this subsection in respect of any specified real property or chattel real, or any specified estate or interest in any real property or chattels real, or any specified estate or interest in any specified real property or chattel real, shall limit the right of that alien so that he shall be authorised by this subsection to take and hold the particular real property, chattel real, or, as the case may be, estate or interest in real property or chattels real or in the particular real property or chattel real as specified in the permit and none other. (e) The Minister may revoke any permit granted by him under this section, but the revocation by the Minister of the permit shall not affect or prejudice howsoever the right of the alien in question to continue to hold any real property, chattels real or estate or interest in any real property or chattels real lawfully taken by that alien before, and lawfully held by him when, the permit is revoked, or affect or prejudice howsoever any of the rights, remedies, exemptions and capacities had by that alien in relation to the same by virtue of this subsection. (f) The power of the Minister to revoke a permit granted by him under this section shall include power to revoke, by a notice published in the Gazette all permits so granted by him to citizens or subjects of any State or Country specified in that notice, it being hereby declared that all such permits to citizens or subjects of a State or Country specified in such a notice of revocation granted before and in force at the date of the publication of that notice in the Gazette shall be thereby revoked, notwithstanding that such notice does not name or otherwise identify those citizens or subjects or any of them. (g) Every application for a permit under this subsection shall be accompanied by the prescribed fee. If the permit is granted the fee shall be paid into and form part of the Consolidated Revenue Fund, but if the permit is refused the fee shall be refunded to the applicant.

3 ALIENS ACTS, 1867 TO 1958 ss The Goyemor in Council may, from time to time, by Order in Council published in the Gazette prescribe the amount of the fee payable in respect of permits under this subsection. This paragraph applies on and from the date of the publication in the Gazette of the Order in Council first made hereunder. (h) Notwithstanding any provision of this Act or any other Act or law any and every alien shall and may as from the passing of "The Aliens Acts Amendment Act of 1958" take, acquire, hold, and dispose of any real property or any estate or interest in real property in all respects as if he were a British subject under and within the meaning of the Nationality and Citizenship Act, , of the Commonwealth (or of any Act passed in amendment thereof or substitution therefor); and a title to real property or any estate or interest therein may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject as aforesaid: Provided that this paragraph of this subsection shall not entitle an alien to any right or privilege as a British subject as aforesaid, except such rights and privileges in respect of property as are by this paragraph expressly given to him. Previously amended by Act of 1948, 13 Geo. 6 No. 10, s. 4, and now as amended by Act of 1952, 1 Eliz. 2 No. 22, s. 3; Statutes Amendment Act of 1956, 5 Eliz. 2 No. 18, s. 2; Act of 1958, 7 Eliz. 2 No. 57, s. 2. Act referred to: Nationality and Citizenship Act (Commonwealth). At common law an alien was in the same position as a British subject with regard to all personal property except chattels real, but he could not hold real estate or chattels real, with the exception that certain leaseholds might be held by alien merchants. See 1 Halsbury's Laws of England, 3rd ed., p An alien cannot own any interest in a British ship, Merchant Shipping Act of 1894, s. 1 (Imperial), title SHIPPING. With this section, cf. the effect of ss. 17, 26 (1) of the British Nationality and Status of Aliens Act, 1914 (Imperial). For other rights and disabilities of aliens, see the Preliminary Note. H appears that one effect of the incapacity of an alien to hold and transfer realty was to render him incompetent to make a "conveyance or transfer" of realty within s. 95 of the Bankruptcy Act, (Commonwealth), which makes certain transactions void as against a trustee in bankruptcy. An application to set aside such a purported transaction was therefore misconceived: Re Douyere (1862), 1 S.C.R. 91. See now paragraph (h) supra. 4. Alien residents may hold lands for twenty-one years. 7 & 8 Vic. c. 66 s. 5. Every alien now residing in or who shall hereafter come to reside in any part of the said colony and being the subject of a friendly state may by grant lease demise assignment bequest representation or otherwise take and hold any lands houses or other tenements for the purpose of residence or of occupation by him or her or his or her servants or for the purpose of any business trade or manufacture for any term of years not exceeding twenty-one years as fully and effectually to all intents and purposes and with the same rights remedies exemptions and privileges except the right to vote at the elections of members of the Legislative Assembly of the said colony as if he were a natural born subject of the United Kingdom of Great Britain and Ireland.

4 526 ALIENS Vol. 1 This section shall be read so as not to limit the right of an alien to take and hold any lands, houses or other tenements, or any estate or interest therein which he may lawfully take and hold under and by virtue of the provisions of section three of this Act or to continue to hold any lands, houses or other tenements, or any estate or interest therein, lawfully taken by him under and by virtue of the provisions of the said section three as in force immediately prior to the passing of "The Aliens Acts and Another Act Amendment Act of 1952". Previously amended by Act of 1948, 13 Geo. 6 No. 10, s. 5 and now as amended by 1 Eliz. 2 No. 22, s. 4. See now the Leases to Aliens Restriction Acts, 1912 to 1952, in particular s. 3 (4) thereof, title REAL PROPERTY. The privileges granted to aliens by this section would now appear to be superseded by the wider privileges extended by s. 3 (2) (h). EUROPEAN AND NORTH AMERICAN ALIENS 5. Certain aliens taking the oath of allegiance shall be naturalized Schedule. Any alien being a native of a European or North American state and not being an alien enemy who shall attend before one or more justices of the peace in petty sessions assembled and take and subscribe the oath of allegiance to Her Majesty contained in the schedule to this Act annexed shall thenceforth be a naturalized British subject within the meaning of the laws now in force and such justice or justices is or are hereby authorised and required to administer the said oath. It appears that an alien can no longer be naturalized under this and the following sections. See Nationality and Citizenship Act , ss. 14 et seq. (Commonwealth). ASIATIC OR AFRICAN ALIENS 6. Asiatic and African aliens to be married and have resided three years in colony. No Asiatic or African alien shall be entitled to be naturalized as a British subject unless such alien shall be married and shall have resided in the colony for a period of three years: Provided also that the wife of the said alien shall at the time of his being so naturalized reside within the colony. 7. Memorial for certificate. Adapted from 7 & 8 Vic. c. 66 s. 7. It shall be lawful for any such Asiatic or African alien as aforesaid to present to the Governor of the said colony for the time being a memorial stating the age profession trade or other occupation of the memorialist and the duration and places of his or her residence in Queensland and all other the grounds on which he or she seeks to obtain any of the rights and capacities of a natural born British subject within the said colony and praying the said Governor to grant to the memorialist the certificate hereinafter mentioned. 8. Certificates issued. Adapted from 7 & 8 Vic. c. 66 s. 8. Every such memorial shall be considered by the said Governor who shall inquire into the circumstances of each case and receive all such evidence as shall be offered by affidavit or otherwise as he may deem necessary or proper for proving the truth of the allegations contained in such memorial and

5 ALIENS ACTS, 1867 TO 1958 is the said Governor if he shall so think fit may issue a certificate reciting such of the contents of the memorial as he shall consider to be true and material and granting to the memorialist (upon his or her taking and subscribing the oath of allegiance) all the rights and capacities within the said colony of a natural born British subject except the capacity of being a member of either the Executive or the Legislative Councilor the Legislative Assembly and except the rights and capacities (if any) specially excepted in and by such certificate. 9. And to be enrolled. Adapted from 7 & 8 Vic. c. 66 s. 9. Such certificates shall be enrolled for safe custody as of record in the Supreme Court of the said colony and may be inspected and copies thereof taken under such regulations as the Chief Justice and one other judge of the said Supreme Court shall direct. 10. Oath to be taken. Compare 7 & 8 Vic. c. 66 s. 10. Within sixty days from the day of the date of such certificate every memorialist to whom rights and capacities shall be granted by such certificate shall take and subscribe the oath of allegiance to Her Majesty before one or more justices of the peace in petty sessions assembled. 11. Power of Governor. Compare 7 & 8 Vic. c. 66 s. 11. The several proceedings hereby authorised to be taken for obtaining such certificate as aforesaid shall be regulated in such manner as the Governor in Council shall from time to time direct. 12. Right of certified aliens. 7 & 8 Vic. c. 66 s. 6. Upon obtaining the certificate and taking and subscribing the oath of allegiance every Asiatic or African alien now residing in or who shall hereafter come to reside in any part of the said colony with intent to settle therein shall enjoy all the rights and capacities within the said colony which a natural born subject of the United Kingdom of Great Britain and Ireland can enjoy or transmit except that such alien shall not be capable of becoming a member of the Executive or Legislative Council or Legislative Assembly of the said colony or of enjoying such other rights and capacities if any as shall be specially excepted in and by the certificate to be granted in manner hereinbefore mentioned. RECORD OF OATHS, ETC. 13. Copy of the oath to be recorded. A copy of every oath of allegiance taken under this Act signed by the deponent and attested by such justice or justices under his or their hand with the date of taking the said oath shall be filed in the office of the Registrar of the Supreme Court and a record thereof which shall be a record of the court shall be entered in a book to be kept for that purpose in the said office Provided that in the said book shall also be entered the place of birth age profession trade or other occupation and then residence of the person so naturalized.

6 528 FEES 14. Fees. The fees mentioned in the following schedule and no other shall be payable (under this Act) in respect of the oath of allegiance:- SCHEDULE Oath of allegiance Filing same Copy of the record thereof under the seal of the Supreme Court Office and hand of the Registrar GENERAL PROVISIONS s. d Five years' residence. Compare 7 & 8 Vic. c. 66 s. 13. All persons who shall have been naturalized or who shall have obtained under due authority letters of denization before the passing of this Act and who shall have resided in the said colony during five successive years shall be deemed entitled to and shall enjoy all such rights and capacities of British subjects within the said colony as may be conferred on aliens by the provisions of this Act. 16. Existing rights. 7 & 8 Vic. c. 66 s. 14. Provided always that nothing in this Act shall prejudice or be construed to prejudice any rights or interests in law or in equity whether vested or contingent under any will deed or settlement executed by any natural born subject of Great Britain or Ireland before the passing of this Act or under any descent or representation from or under any such natural born subject who shall have died before the passing of this Act. 17. Saving rights of aliens. 7 & 8 Vic. c. 66 s. 15. Nothing herein contained shall be construed so as to take away or diminish any right privilege or capacity heretofore lawfully possessed by or belonging to aliens residing in the said colony so far as relates to the possession or enjoyment of any real or personal property but all such rights shall continue to be enjoyed by such aliens in as full and ample a manner as such rights were enjoyed before the passing of this Act. 18. English laws how far applicable. Provided always that all laws and statutes of England affecting aliens so far as the same may be inconsistent with the provisions of this Act shall be deemed taken and adjudged not to extend to the said colony or to be in force within the same. For Imperial legislation, see Preliminary Note to this title, p. 521 ante. COMMENCEMENT AND SHORT TITLE 19. Commencement of Act. Short title. This Act shall commence on the thirty-first day of December one thousand eight hundred and sixty-seven and may be referred to as the "Aliens Act of 1867". SCHEDULE [Section 5.] I [A.B.] do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria as lawful Sovereign of the United Kingdom of Great Britain and Ireland and of the Colony of Queensland dependent and belonging to the said United Kingdom and that I will defend Her to the utmost of my power against all traitorous conspiracies and attempts whatsoever which shall be made against Her person Crown and dignity and that I will do my utmost endeavour to make known to Her Majesty Her heirs and successors all treasons and traitorous conspiracies and attempts which I shall know to be against Her or any of them. So help me God!