COMMENTARIES ON THE CONSTITUTION OF THE AUSTRALIAN COMMONWEALTH. An Act to constitute the Commonwealth of Australia. UNITED STATES.-Constitution of the United States. (17th September, 1787.) [Title.] $ 1. "An Act." (29th May, 1874). [Title.] PARTS.-This Act may, for the purpose of analysis and classification, be considered as consisting of the following parts: -(1) Title, (2) Preamble, (3) Words of enacting authority, (4) The Covering Clauses 1 to 9, (5) The Constitution introduced by Clause 9, and divided into Chapters, Headings, Parts, and Sections, (6) The Schedule, (7) The Marginal Notes. TITLE.—The title of a Statute forms no part of the law, and in strictness ought not to be taken into consideration at all. No more argument can be justly built upon the title prefixed in some editions of the Statutes than upon the marginal notes against the several sections - per Tindal, C.J., in delivering to the House of Lords the opinion of the consulted Judges. (Birtwistle v. Vardill, 1839, 7 Cl. and Finn., p. 929.) Per The title of a statute is no part of the law-per Lord Mansfield, Rex v. Williams, 1 W. Bl. 95. Per Lord Hardwicke, Att.-Gen. v. Lord Weymouth, Ambl. 25. Pollock, C.B., Salkeld v. Johnson, 2 Exch. 283, Digest of English Case Law, Vol. XIII., p. 1881. There is no authority for saying that the title of a statute may be used where there is any ambiguity in the statute. (Coomber v. Berks Justices, 9 Q.B. D. 33. Id.) The title cannot be resorted to for the purpose of construing the provisions of the Act. (Hunter v. Nockolds, 19 L.J. Ch. 177. Id.) "The title of a statute does not go for much in construing it, but I do not know that it is to be absolutely disregarded. The title of Lord Campbell's Act, 9 and 10 Vic. c. 93, was certainly referred to as not without significance in the Court of Queen's Bench in Blake v. Midland Ry. Co., 18 Q.B. 93." (Per Wills, J., in Kenrick v. Lawrence, 25 Q. B. D. 99. Id.) If there is in the provisions of an Act anything admitting of a doubt, the title of the Act is a matter proper to be considered in the interpretation of the Act. (Shaw v. Ruddin, 9 Ir. C.L.R. 214. Id.) The enacting part of an Act is not to be controlled by the title or recitals unless the enacting part is ambiguous, and then the title and recitals may be referred to for the purpose of ascertaining the intention of the legislature. (Bentley v. Rotherham Local Board; 4 Ch. D 588. Id.) HEADINGS.-The headings of a portion of a statute may be referred to in order to determine the sense of any doubtful expressions in sections ranged under it. (Hammersmith and City Railway Co. v. Brand, L. R. 4 H.L. 171, 203; but see- per Lord Cairns, id. p. 217. Eastern Counties Rail. Co. v. Marriage, 9 H. L. Ca 32. Union Steamship Co. of N.Z. v. Melbourne Harbour Trust, 9 App. Ca. 365.) MARGINAL NOTES.-The marginal notes of the Act and the Constitution are copious and systematic; yet the bulk of authority would seem to show that they form no portion of the law. In Claydon v. Green, L. R. 3 C. P. 511, Mr. Justice Willes said : “Something has been said about the marginal note in section 4 of 9 Geo. IV. c. 61. I wish to say a word upon that subject. It appears from Blackstone's Commentaries, vol. I. p. 183, that formerly, at one stage of the Bill in Parliament it was ordered to be engrossed upon one or more rolls of parchment. That practice seems to have continued down to the session of 1849, when it was discontinued, without, however, any statute being passed to warrant it (see May's Parliamentary Practice, 3rd ed., 382). Since that time, the only record of the proceedings of Parliament - the important proceedings of the highest tribunal of the Kingdom-is to be found in the copy printed by the Queen's printer. But I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the Act, the marginal notes, and the punctuation, not as forming part of the Act, but merely as temporanea expositio. The Act, when passed, must be looked at just as if it were still entered upon a roll, which it may be again if Parliament should be pleased so to order; in which case it would be without these appendages, which, though useful as a guide to a hasty inquirer, ought not to be relied upon in construing an Act of Parliament." Some doubts were thrown on the opinion of Mr. Justice Willes, expressed in 1868, by a contrary view taken and acted upon in 1876 by Sir George Jessel, Master of the Rolls, who, in the case of re Venour's Settled Estates, 2 Ch. D. 525, said:-" This view is borne out by the marginal note, and I may mention that the marginal notes of Acts now appear on the rolls of Parliament, and consequently form part of the Acts, and in fact are so clearly so that I have known them to be the subject of motion and amendment in Parliament." In the case of Attorney-General v. Great Eastern R. Co., 1879, 11 Ch. D. 449, the Master of the Rolls gave expression to the same view. When this case came before the Court of Appeal, consisting of James, Bramwell, Baggallay, L.JJ., he was overruled, and the law was finally settled that marginal notes form no legal part of a statute. 66 Per James, L.J.: What authority has the Master of the Rolls for saying that the courts do look at the marginal notes?" Per Bramwell, L.J.: “What would happen if the marginal notes differed from the section, which is a possibility, as is shown in section 112 of this Act? Does the marginal note repeal the section, or does the section repeal the marginal note?" Per Baggallay, L.J.: "I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note.” PUNCTUATION.-The punctuation is no part of an Act of Parliament. In the case of Barrow v. Wadkin, 24 Beav. 327, it was held that certain words in an Act were to be read "aliens' duties, customs, and impositions," not as they were printed, “aliens, duties, customs, and impositions." Preamble. Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God', have agreed to unite in one indissoluble Federal Commonwealth under the Crown' of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established10: And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen: 12 Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords. Spiritual and Temporal13, and Commons', in this present Parliament assembled, and by the authority of the same15, as follows: DECLARATION OF AMERICAN INDEPENDENCE. -We therefore the representatives of the United UNITED STATES CONSTITUTION.-We the people of the United States, in order to form a more BRITISH NORTH AMERICA ACT.-Whereas the Provinces of Canada, Nova Scotia, and New is to secure the independence of the country against foreign nations, to maintain peace HISTORICAL NOTE.-The preamble of the Commonwealth Bill of 1891 was as follows: "Whereas the Australasian colonies of [here name the colonies which have adopted the Constitution] have by [here describe the mode by which the assent of the colonies has been expressed] agreed to unite in one Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: And whereas it is expedient to make provision for the admission into the Commonwealth of other Australasian colonies and possessions of Her Majesty." Under the Enabling Acts by which the Convention of 1897-8 was constituted, the mode by which the assent of the colonies was to be expressed-namely, by the vote of the people—was already determined; and accordingly the first recital in the preamble as drawn at Adelaide was as follows:: "Whereas the people of [here name the colonies which have adopted the Constitution] have agreed to form one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:" In Committee, at Mr. Deakin's suggestion, the word "form" was omitted and "unite in "substituted. Several largely-signed petitions had been received praying that there should be some recognition of God in the Constitution; and Mr. Glynn moved to insert the words "invoking Divine Providence." The Convention, however, felt some doubt as to the propriety of introducing at that stage any religious formula into the Constitution, and the amendment was negatived by 17 votes to 11. (Conv. Deb., Adel., pp. 1183-9.) During the statutory adjournment, all the Legislative Chambers, with one exception, suggested the insertion of some recognition of a Divine Being. The Legislatures of New South Wales and South Australia, and the Legislative Council of Western Australia, suggested the words "acknowledging Almighty God as the Supreme Ruler of the Universe." The Legislature of Victoria suggested "in reliance upon the blessing of Almighty God." The House of Assembly of Tasmania suggested "duly acknowledging Almighty God as the Supreme Ruler of the Universe and the source of all true Government " The Legislative Assembly of Western Australia suggested "grateful to Almighty God for their freedom, and in order to secure and perpetuate its blessings." Numerous petitions were received to a similar effect; and at the Melbourne session a proposal by Mr. Glynn to insert the words "humbly relying on the blessing of Almighty God" was agreed to. (Conv. Deb., Melb., 1732-41.) In the Bill as introduced in the Imperial Parliament, the names of the five colonies which had accepted the Bill were inserted in the blank left for that purpose. The words "under the Constitution hereby established" were omitted, owing to the contention of the Delegates that the alterations then proposed by the Imperial Government would make this recital inaccurate; but in Committee they were afterwards restored (see Historical Introduction, pp. 230, 238, 242, 249, supra). The proper function of a preamble is to explain and recite certain facts which are necessary to be explained and recited, before the enactments contained in an Act of Parliament can be understood. A preamble may be used for other reasons: to limit the scope of certain expressions or to explain facts or introduce definitions. (Lord Thring, Practical Legislation, p. 36.) The preamble has been said to be a good means to find out the intention of a statute, and, as it were, a key to the understanding of it. It usually states, or professes to state, the general object and meaning of the Legislature in passing the measure. Hence it may be legitimately consulted for the purpose of solving an ambiguity or fixing the connotation of words which may possibly have more than one meaning, or determining the scope or limiting the effect of the Act, whenever the enacting parts are, in any of these respects, open to doubt. But the preamble cannot either restrict or extend the legislative words, when the language is plain and not open to doubt, either as to its meaning or its scope. (Maxwell on the Interpretation of Statutes [1875], pp. 35-45.) In the case of Overseers of West Ham v. Iles (1883), 8 App. Cas. p. 388, Lord Blackburn said: " My Lords, in this case the whole question turns upon the construction of sect. 19 of 59 Geo. III. c. 12. I quite agree with the argument which has been addressed to your Lordships, that in construing an Act of Parliament, where the intention of the Legislature is declared by the preamble, we are to give effect to that preamble to this extent, namely, that it shows us what the Legislature are intending; and if the words of enactment have a meaning which does not go beyond that preamble, or which may come up to the preamble, in either case we prefer that meaning to one showing an intention of the Legislature which would not answer the purposes of the preamble, or which would go beyond them. To that extent only is the preamble material.” Although the enacting words of a statute are not necessarily to be limited or controlled by the words of the preamble, but in many instances go beyond it, yet, on a sound construction of every Act of Parliament, the words in the enacting part must be confined to that which is the plain object and general intention of the Legislature in passing the Act; and the preamble affords a good clue to discover what that object was. (Per Lord Tenterden, C.J., in Halton v. Cove, 1 B. and Ad. 538; Salkeld v. Johnson, 2 Exch. 283; per Kelly, C.B., in Winn v. Mossman, L. R. 4 Ex. 300; cited, Broom's Legal Maxims, 5th ed. p. 572.) "The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves alone do in such case best declare the inten tion of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which according to Chief Justice Dyer (Plowd. 369) is a key to open the minds of the makers of the Act and the mischiefs which they intended to redress." (Per Tindal, C.J., delivering the opinion of the Judges in the Sussex Peerage Case, 11 Cl. and Fin. 143; per Buller, J., in R. v. Robinson, 2 East P.C. 1113; cited R. v. Johnson, 29 St. Tr. 303; Broom's Legal Maxims, 5th ed. 573. It is a general rule, in the construction of statutes, that the preamble may extend, but cannot restrain, the effect of an enacting clause. (Kearns v. Cordwainers' Co., 28 L.J. C.P. 285; D.E.C.L. xiii. p. 1882.) We ought not to restrict a section in an Act of Parliament by the preamble or general purview of the Act where the section is not inconsistent with the spirit of the Act. (Sutton v. Sutton, 22 Ch. D. 521. Id.) The preamble of an Act of Parliament is proper to explain the general body of it. (Copeman v. Gallant, 1 P. Wms. 317. Id.) If the enacting part of a statute will bear only one interpretation, the preamble shall not confine it; but if it is doubtful, the preamble may be applied to throw light upon it. (Mason . Armitage, 13 Ves. 36. Id.) In construing an Act of Parliament, or any other instrument, the court is at liberty to regard the state of the law at the time, and the facts which the preamble or recitals of the Act of instrument prove to have been the existing circumstances at the time of its preparation. (Attorney-General . Powis, 2 Eq. R. 566. Id 1883.) The preamble of an Act of Parliament, though it may assist ambiguous words. cannot control a clear and express enactment. (Lees v. Summersgill, 17 Ves. 50S. Id.) But it may serve to give a definite and qualified meaning to indefinite and general terms. (Emanuel . Constable, 3 Russ. 436, overruling Lees . Summersgill. Iď.) In construing Acts, the court must take into consideration not only the language of the preamble, or any particular clause, but of the whole Act; and if, in some of the enacting clauses, expressions are to be found of more extensive import than in others, or than in the preamble, the Court will give effect to those more extensive expressions, if, upon a view of the whole Act, it appears to have been the intention of the Legislature that they should have effect. (Doe d. Bywater v. Brandling, 6 L.J. (o.s.) K.B. 162. Id.) The effect of the preamble of a repealed Act was considered in Harding v. Williams, 1880, 14 Ch. Div. 197. The effect of a preamble to a particular section of an Act was considered in ex parte Gorely, re Barker, 34 L.J. (B.) 1. $ 3. "The People." The opening words of the preamble proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern. Although it proceeds from the people, it is clothed with the form of law by an Act of the Imperial Parliament of Great Britain and Ireland, the Supreme Sovereign Legislature of the British Empire. The legislative supremacy of the British Parliament is, according to Dicey and all other modern jurists, the keystone of the law of the British Constitution. John Austin holds (Jurisprudence, vol. I. pp. 251-255) that the sovereign power is vested in the King, the House of Lords, and the House of Commons or electors. Referring to Austin's definition, Dicey points out that the word "sovereignty" is sometimes employed in a political rather than in a strictly legal sense. That body is politically sovereign or supreme in a State, the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps in strict accuracy, independently of the King and the Peers, to be the body in which the political sovereignty is vested. (Dicey, Law of the Constitution, p. 67.) SOVEREIGNTY OF THE PEOPLE.-In the United States the political as well as the legal sovereignty of the people has been generally recognized ever since the Declaration of Independence. John Wilson, one of the framers of the American Constitution, in addressing the Pennsylvania State Convention in exposition and defence of that instrument said : "When I had the honour of speaking formerly on the subject I stated in as concise a manner as possible the leading ideas that occurred to me to ascertain where the supreme and sovereign power resides. It has not been, nor I presume will be denied that somewhere there is, and of necessity must be, a supreme absolute and uncontrollable authority. This I believe may justly be termed the sovereign power; for, from that gentleman's (Mr. Findlay's) account of the matter it cannot be sovereign unless it is |