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Rights of residents in States.

117. A subject of the Queen463, resident in any State463A, shall not be subject in any other State to any disability or discrimination464 which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

UNITED STATES.—The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.—Const., Art. IV., sec. 2.

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 .… deny to any persons within its jurisdiction the equal protection of its laws.—Fourteenth Amendment, sec. 1.

HISTORICAL NOTE.—Clause 17, Chap. V., of the Commonwealth Bill of 1891 was:—

“A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction, the equal protection of the laws.”

At the Adelaide session, 1897, this was adopted verbatim. At the Melbourne session, it was proposed, on the suggestion of the Legislative Assembly of New South Wales and the Legislative Council of Tasmania, to omit the first portion. No one was able to suggest a privilege or immunity of a citizen of one State which could be abridged by a law of another State, and it was pointed out that there was no definition of citizenship. Mr. Barton and Mr. Wise wished to give the citizens of each State the privileges and immunities of citizens of the other State; Mr. Reid and Mr. Symon said that this would be an interference with the independence of States, and that the Convention was only concerned with protecting the federal citizenship. Mr. Wise, as a test question,


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moved the first few words of an amendment suggested by the House of Assembly in Tasmania, based on the fourteenth amendment of the American Constitution, and declaring that the citizens of each State should be citizens of the Commonwealth, and entitled to all the privileges and immunities of citizens of the Commonwealth in the several States. After debate, this was negatived by 24 votes to 17; and the words dealing with privileges and immunities were then struck out. An amendment by Mr. O'Connor, to add “deprive any person of life, liberty, or property without due process of law,” was negatived by 23 votes to 19. An amendment by Mr. Glynn, to add “deny to the citizens of other States the privileges and immunities of its own citizens,” was also negatived, and the whole clause was struck out. (Conv. Deb., Melb., pp. 664–91.) At a later stage Dr. Quick moved to insert in the “powers of Parliament” clause a new sub-clause—“Commonwealth citizenship.” The importance of the question was recognized; but there were three different opinions expressed:—(1) That the Parliament should have power to deal with the question; (2) that citizenship ought to be defined in the Constitution itself; (3) that the rights of citizenship were already secured in the Constitution, and that citizenship itself had never been defined in Great Britain, and was better not defined. The sub-clause was negatived by 21 votes to 15. (Conv. Deb., Melb., pp. 1750–68.) On the reconsideration of clauses, Mr. Symon moved, in place of the clause struck out, to insert:—“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Dr. Quick moved as an amendment to insert a definition of Commonwealth citizenship:—“All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and not under any disability imposed by the Parliament, shall be citizens of the Commonwealth.” This was thought too wide, and opinions were expressed that the better plan would be to empower the Parliament to deal with the question. Mr. O'Connor then moved to insert:—“Every subject of the Queen, resident in any State or part of the Commonwealth, shall be entitled in any other State or part of the Commonwealth to all the privileges and immunities to which he would be entitled if a subject of the Queen resident in that latter State or part of the Commonwealth.” This was objected to as being too wide, and making residence in one State equivalent to another, for all purposes. It was suggested that the clause should be put negatively, instead of affirmatively, and Mr. O'Connor then proposed it as follows:—“No subject of the Queen, resident in any State, shall be subject in any other State to any disability or discrimination not equally applicable to the subjects of the Queen in such other State.” This was agreed to. (Id. pp. 1780–1802.) After the second report Mr. Deakin moved to substitute “such” for “the” before “subjects,” in order to indicate to the Drafting Committee that State rights of defining citizenship were not interfered with. This was agreed to. Drafting amendments were made after the fourth report.

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