§ 210. “The People of any Race.”

This sub-section does not refer to immigration; that is covered by sub-sec. xxvii. It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localize them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.

In the Draft Bill of 1891, this sub-section appeared as the first of a group of three subjects, with reference to which the Parliament was assigned exclusive legislative power. It is now placed in the list of powers generally described as concurrent; that is to say, the States may occupy the ground until the Federal authority interferes and displaces them. The sub-section can only exclude the action of State legislation respecting “the people of any race,” when the Federal Parliament declares, by legislation, that such race is race “for whom it is deemed necessary to make special laws.” Before such legislation the State Parliaments will be free to pass laws concerning any part of their resident population, including the people of any particular race, coloured or otherwise, but as soon as the Federal Parliament by legislative intervention has shown that it has dealt with, or contemplates dealing with, the people of a particular race by special laws, the power to discriminate in respect of that race will thenceforth be exclusively vested in it and the State legislatures will be deprived of jurisdiction.

Under the fourteenth amendment of the Constitution of the United States it is enacted that:—

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

An ordinance or by-law of the City and County of San Francisco vested in the supervisors the power to grant to or withhold from certain persons within certain limits licenses to conduct laundries. This power was exercised discriminatingly; laundry licenses were granted to Europeans and denied to Chinamen. In the case of Yick Wo v. Hopkins (118 U.S. 356), it was decided that these laws were unconstitutional and void. It was held that the fourteenth amendment is not confined to the protection of citizens. It is applicable alike to all “persons” within the territory, without regard to differences of race, colour, or nationality; and the “equal protection of the laws” is a pledge of

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the protection of equal laws. Though the law itself be fair on its face, and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as to practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. (Yick Wo v. Hopkins, 118 U.S. 356, citing Henderson v. Mayor of N.Y., 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; ex parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370; Soon Hing v. Crowley, 113 U.S. 703. Baker, Annot. Const. 220.)

The decision in Yick Wo's case turned, of course, on the special inhibitions of the fourteenth amendment. There is no section in the Constitution of the Commonwealth containing similar inhibitions. On the contrary it would seem that by sub-sec. xxvi. the Federal Parliament will have power to pass special and discriminating laws relating to “the people of any race,” and that such laws could not be challenged on the ground of unconstitutionality, as was done in Yick Wo v. Hopkins.

51. (xxvii.) Immigration211 and emigration212:

HISTORICAL NOTE.—This sub-section was in the Bill of 1891. (Conv. Deb., Syd., 1891, p. 689.) It was adopted verbatim and without debate by the Convention of 1897–8.