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§ 1. “An Act.”

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.)

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. Per 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


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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. 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.

Whereas2 the people3 of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God4, have agreed5 to unite in one indissoluble Federal Commonwealth6 under the Crown7 of the United Kingdom of Great Britain and Ireland8, and under the Constitution9 hereby established10:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's Most Excellent Majesty11, by and with the advice and consent of the Lords Spiritual12 and Temporal13, and Commons14, in this present Parliament assembled, and by the authority of the same15, as follows:—




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DECLARATION OF AMERICAN INDEPENDENCE.—We therefore the representatives of the United States of America in general Congress assembled, appealing to the Supreme Judge of the World for the rectitude of our intentions, do in the name and by the authority of the good people of these colonies solemnly publish and declare that these united colonies are and of right ought to be free and independent States; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is and ought to be totally dissolved…and for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honour. (4th July, 1776.) ARTICLES OF CONFEDERATION.—And whereas it hath pleased the great Governor of the World to incline the hearts of the Legislatures we respectively represent in Congress, to approve of and to authorize us to ratify the said articles of confederation and perpetual union, know ye, that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents in the name and in behalf of our respective constituents fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual union and all and singular the matters and things therein contained. (9th July, 1778; ratified, 1781.) UNITED STATES CONSTITUTION.—We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America. (Preamble, went into operation 4th March 1789.) BRITISH NORTH AMERICA ACT.—Whereas the Provinces of Canada, Nova Scotia, and New Brunswick, have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom. And whereas such a union would conduce to the welfare of the Provinces and promote the interests of the British Empire. And whereas on the establishment of the union by authority of Parliament it is expedient not only that the Constitution of the Legislative authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared. And whereas it is expedient that provision be made for the eventual admission into the union of other parts of British North America. (Preamble, 29th March, 1867.) CONSTITUTION OF THE GERMAN EMPIRE.—The Imperial Constitution for the protection of the territory of the Confederation and of the laws of the same as well as for the promotion of the welfare of the German people. (Preamble, 18th January, 1871.) CONSTITUTION OF SWITZERLAND.—In the name of Almighty God. The Swiss Confederation, desiring to confirm the alliance of the Confederates, to maintain and to promote the unity, strength and honour of the Swiss nation…The purpose of the Confederation is to secure the independence of the country against foreign nations, to maintain peace and order within, to protect the liberty and the rights of the Confederates and to foster their common welfare. (Preamble and Art. 2, 29th May, 1874.)

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


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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).

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