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§ 330. “Its Interpretation.”

INTERPRETATION.—The interpretation of a written document is the process of ascertaining the meaning and intention expressed in it. Sometimes “interpretation,” as contrasted with “construction,” is used in a narrower sense, to signify the process of explaining particular provisions in which there is some ambiguity; whilst “construction” is used to signify the process of comparing different parts of the document, and gathering the intent from a survey of the whole. In other words, “interpretation” is thus used in an analytic, and “construction” in a synthetic sense. (See Story, Comm. § 397, et seqq.) The word “interpretation” is clearly used here in the most general sense, as including both the analytic and the synthetic processes.

This sub-section empowers the Federal Parliament to give the High Court original jurisdiction in any matter arising under this Constitution, or involving its interpretation. But apart altogether from this sub-section, both State and Federal Courts have the duty of interpreting the Constitution, which is the supreme law of the Commonwealth, in every case in which they have jurisdiction and in which rights or obligations arising under the Constitution are involved; and the High Court, as the general appellate tribunal, has the duty of reviewing the interpretations of State Courts. It is necessary to discuss the questions (1) who are the interpreters of the Constitution? (2) what are the leading principles on which its interpretation should be based?

THE INTERPRETERS OF THE CONSTITUTION.—The Constitution, like every other law, is directly binding on every individual and every governmental agency within the Commonwealth. Every person, every officer, every political organ, has the duty of complying with its provisions and must in the exercise of that duty interpret its provisions, in the first instance, to the best of his ability and on his own responsibility. Every citizen is entitled to the protection of the Constitution and is bound not to infringe it; every officer and department of every Government—State or Federal—has similar rights and obligations; and the Federal Parliament and the State Parliaments alike are bound not to exceed the authority conferred or reserved by the Constitution. But the provisions of the Constitution may, wittingly or unwittingly, be transgressed; rights arising under it may be denied; obligations may be evaded. Every person under these circumstances has recourse to the appropriate courts to defend his own rights and to enforce the obligations of others; and thus, without any express provision, the courts of the States, and the Federal Courts, whenever they have jurisdiction over a case, have the duty of interpreting the Constitution so far as it affects the rights of the parties. From the Supreme Courts of the States, as well as from inferior federal courts, an appeal lies to the High Court, whose decisions are “final and conclusive,” unless special leave to appeal to the Privy Council is obtained either from the Privy Council or from the High Court itself, as the case may be. It may therefore be said that every court of competent jurisdiction is an interpreter of the Constitution; and that the High Court — subject to exceptional review by the Privy Council—is the authoritative and final interpreter of the Constitution.

In the exercise of the duty of interpretation and adjudication not only the High Court, but every court of competent jurisdiction, has the right to declare that a law of the Commonwealth or of a State is void by reason of transgressing the Constitution. This is a duty cast upon the courts by the very nature of the judicial function. The Federal Parliament and the State Parliaments are not sovereign bodies; they are legislatures with limited powers, and any law which they attempt to pass in excess of those powers is no law at all it is simply a nullity, entitled to no obedience. The question whether those powers have in any instance been exceeded is, when it arises in a case between parties, a purely judicial question, on which the courts must pronounce. This doctrine was settled in the United States in 1803 by the great case of Marbury v. Madison, 1 Cranch 137, where it was held that the authority given by the Judiciary Act to the Supreme Court of the United States, to issue writs of mandamus to public officers, was not warranted by the Constitution.




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“The Supreme Court of the United States … has asserted the power of the United States judiciary to stand between the constitution and the legislature, and to pronounce an act of the legislature null and void whenever it comes into conflict with such private rights or private property as, according to the interpretation placed upon the constitution by the judiciary, are guaranteed in that instrument. The Court, on the other hand, declines to claim any such transcendent power where the legislative act does not come into conflict with private rights or private property. Of course, the Court asserts the same power over against executive interference with private rights or private property. A fortiori, it claims the same power over against the acts of the States. The Court must itself determine when the case is one primarily affecting private rights or private property, and when, on the contrary, it is primarily a political question. The Court bases this position, in principle, upon the provision of the constitution which vests in the judiciary jurisdiction over all cases arising under the constitution.” (Burgess, Political Sci. ii. 326-7. See Civil Rights Cases, 109 U.S. 3; Luther v. Borden, 7 How. 1.)

The effect of a judicial decision is primarily only to determine the rights of the parties; but inasmuch as such a decision, unless challenged, is a precedent for future decisions, and a law which the courts refuse to enforce has no sanction and therefore is without one of the fundamental attributes of a law, it follows that a rule established by the highest Court of Appeal must be recognized as authoritative, and that the decisions of that Court must be acquiesced in and conformed to by all persons as the final interpretation of the law.

“The judicial interpretation of the constitution is therefore the ultimate interpretation; but it must be given through the form of a case, and can therefore be given only upon such questions as form a proper subject for a case. Now, a case is a suit, and a suit can be brought only when some private relation is directly involved. The conclusion of political science from this view, held by the Court itself, must be that the decision of the Court really affects only the particular case and that the executive power may, without violating the Constitution, go on enforcing the nullified law in all instances where it is not successfully resisted through the courts. The general respect for judicial decision in the United States has, however, given to any particular judgment of the Supreme Court of the United States the force of a general rule, and has made it a part of our constitutional custom that the executive shall cease to undertake the further enforcement of a statute pronounced unconstitutional in any case.” (Burgess, Political Sci. ii. 327. See also Pomeroy, Const. Law, §§ 138-9.)

PRINCIPLES OF INTERPRETATION.—The rules of interpretation and construction of documents in general are outside the scope of this work. But the character of this Constitution involves certain special principles of construction which may be briefly alluded to. It has to be interpreted (1) as an Act of the Imperial Parliament; (2) as a Constitution; (3) as a Federal Constitution.

(1.) As an Imperial Act.—The Constitution of the Commonwealth is enacted as an Act of the Imperial Parliament, and is to be construed in accordance with the rules which regulate the construction of these Acts. (See Maxwell, Interpretation of Statutes; Hardcastle, Construction of Statutes.) In addition to the numerous rules which have been laid down by judicial decision, the Imperial Parliament has itself, by enactments which are now consolidated in the Interpretation Act, 1889 (52 and 53 Vic. c. 63), laid down certain rules by which the provisions of every Act of Parliament are, “unless the contrary intention appears,” to be interpreted and construed. Only a few of the provisions of that Act are applicable to the Constitution of the Commonwealth; and before enumerating them it may be well to observe that the history of the Constitution, and current Australian usage with respect to any words or phrases found therein, may be important elements in ascertaining whether such “contrary intention” appears. The provisions of the Interpretation Act, 1889, which are likely to be of practical application to this Constitution are as follows:—

  • 1. (1) In … every Act passed … after the commencement of this Act, unless the contrary intention appears—
    • (a) words importing the masculine gender shall include females; and
    • (b) words in the singular shall include the plural, and words in the plural shall include the singular.



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  • 3. In every Act passed … after the commencement of this Act, the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely,— The expression “month” shall mean calendar month.
  • 8. Every section of an Act shall have effect as a substantive enactment without introductory words.
  • 12. In every Act passed … after the commencement of this Act, the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely,—
    • (5) The expression “The Privy Council” shall … mean the Lords and others for the time being of Her Majesty's Most Honourable Privy Council.
  • 18. In every Act … passed after the commencement of this Act, the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely,—
    • (2) The expression “British possession” shall mean any part of Her Majesty's dominions exclusive of the United Kingdom, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one British possession.
    • (3) The expression “colony” shall mean any part of Her Majesty's dominions exclusive of the British Islands, and of British India, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one colony.
  • 19. In this Act and in every Act passed after the commencement of this Act, the expression “person” shall, unless the contrary intention appears, include any body of persons corporate or unincorporate.
  • 32. (1) Where an Act passed after the commencement of this Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.
  • 34. In the measurement of any distance for the purposes of any Act passed after the commencement of this Act, that distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane.

(2.) As a Constitution.—Though an Act of Parliament, this Constitution is an Act of a very special character. It is a constitutional charter for a great and practically self-governing people; framed by them, accepted by them, amendable by them, and interpretable by them. As such a charter, it is of necessity expressed in broad and general terms, it deals with abstract political conceptions, it affects the most important individual and social relations; and it is of the most vital importance that it should receive, not a narrow and technical, but a broad and liberal construction.

“The Constitution unavoidably deals in general language. It did not suit the purpose of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which at the present might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.” (Per Story, J., Martin v. Hunter's Lessee, 1 Wheat. at p. 326.)

“A Constitution, to contain an accurate detail of all the sub-divisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and would scarcely be embraced by the human mind. It would probably never be understood by the public.


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Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat at p. 407.)

“Nor can it be questioned that, when investigating the nature and extent of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is a universal rule of construction applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose, and so as to subserve it. In no other way can the intent of the framers of the instrument be discovered. And there are more urgent reasons for looking to the ultimate purpose in examining the powers conferred by a constitution than there are in construing a statute, a will, or a contract. We do not expect to find in a Constitution minute details. It is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines. (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 531.)

“In the practical application of legal principles in the common affairs of life, the written agreement, the deed, the testament, the statute, are construed by the aid of the same rules, simply because they are written. The written Constitution, merely because it is written, can form no exception. The most that can be said is, that as greater interests are involved which affect the State rather than the individual, all narrow and technical construction should, as far as possible, be avoided; the nature of the writing as an organic law should be allowed its full effect.” (Pomeroy, Const. Law, § 18.)

(3.) As a Federal Constitution.—The Constitution of the Commonwealth is a Federal Constitution; it establishes a government of limited and enumerated powers. The Federal Parliament is not, like the British Parliament, sovereign; it is not even, like the Parliament of the colonies before Federation, invested with powers which, within its territorial jurisdiction, are practically sovereign; its authority is limited to specified subjects. The Constitution draws a line between the enumerated powers assigned to the Federal Government and the residue of powers reserved to the State Governments. Both sets of Governments are limited in their sphere of action; but within their several spheres they are supreme. (See Note, “Plenary Nature of Powers,” § 160, supra.) The canons of interpretation applicable to such a Constitution as this, in order to determine the existence and extent of a power, have been clearly and logically laid down by Chief Justice Marshall and other American Judges. The guiding principle may be thus stated:—The Federal Government can have no power which, on a reasonable construction of the whole Constitution, has not been given expressly or by necessary implication. But when once it has been determined that the Federal Government has power over the subject matter, the scope of the power, and mode of giving effect to it, will receive a broad and liberal construction. The power of the Federal Parliament, though limited to specified objects, is plenary as to those objects. (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. 1.)

“The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.” (Per Story, J., Martin v. Hunter's Lessee, 1 Wheat. at p. 326.)

“If any one proposition could command the universal assent of mankind, we might expect that it would be this: that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all.” (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat. at p. 405.)

“We admit as we must all admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will


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enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” (Per Marshall, C.J., ib. at p. 421.)

“This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, congress is authorized ‘to make all laws which shall be necessary and proper’ for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded. As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. at p. 187.)

“Now the doctrines laid down by Chief Justice Marshall, and on which the courts have constantly since proceeded, may be summed up in two propositions.

“1. Every power alleged to be vested in the National government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power; on the contrary; the burden of proof lies on those who assert its existence, to point out something in the Constitution which, either expressly or by necessary implication, confers it. Just as an agent, claiming to act on behalf of his principal, must make out by positive evidence that his principal gave him the authority he relies on; so Congress, or those who rely on one of its statutes, are bound to show that the people have authorized the legislature to pass the statute. The search for the power will be conducted in a spirit of strict exactitude, and if there be found in the Constitution nothing which directly or impliedly conveys it, then whatever the executive or legislature of the National government, or both of them together, may have done in the persuasion of its existence, must be deemed null and void, like the act of any other unauthorized agent.

“2. When once the grant of a power by the people to the National government has been established, that power will be construed broadly. The strictness applied in determining its existence gives place to liberality in supporting its application. The people—so Marshall and his successors have argued—when they confer a power, must be deemed to confer a wide discretion as to the means whereby it is to be used in their service. For their main object is that it should be used vigorously and wisely, which it cannot be if the choice of methods is narrowly restricted; and while the people may well be chary in delegating powers to their agents, they must be presumed, when they do grant these powers, to grant them with confidence in the agents' judgment, allowing all that freedom in using one means or another to attain the desired end which is needed to ensure success.” (Bryce, Amer. Comm. I. 368–9.)




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AMERICAN CASES.—For the way in which these principles have been applied to incidental and implied powers, see Notes, § 226, supra. A few other principles of construction laid down in leading American cases may be briefly noted.

Validity of Law.—“It is not on slight implication and vain conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatability with each other.” (Per Marshall, C.J., Fletcher v. Peck, 6 Cranch 87; and see Commonwealth v. Smith, 4 Binney [Penns.], 123.)

“It is incumbent, therefore, upon those who affirm the unconstitutionality of an Act of Congress to show clearly that it is in violation of the provisions of the Constitution. It is not sufficient for them that they succeed in raising a doubt.” (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 531. See also United States v. Harris, 106 U.S. 629.)

It is a settled rule that statutes which are unconstitutional in part only will be upheld so far as they do not conflict with the Constitution, if the parts which are unconstitutional are separable. (Austin v. Aldermen of Boston, 7 Wall. 694; State Freight Tax Case, 15 Wall. 232; Packet Co. v. Keokuk, 95 U.S 80; Trade Mark Cases, 100 U.S. 582; Railroad Companies v. Schutte, 103 U.S. 118; Unity v. Burrage, 103 U.S. 447; Penniman's Case, 103 U.S. 714; Supervisors v. Stanley, 105 U.S. 305; Presser v. Illinois, 116 U.S. 252.) But this will not be done unless the valid and invalid parts are capable of separation so that each can be read by itself. (United States v. Reese, 92 U.S. 214; United States v. Harris, 106 U.S. 629; Virginia Coupon Cases, 114 U.S. 269; Baldwin v. Franks, 120 U.S. 678.) If the unconstitutional part cannot be rejected without giving to the rest of the statute a meaning which was not contemplated, the whole statute is void. (Spraigue v. Thompson, 118 U.S. 90. Baker, Annot. Const. p. 229.)

Restriction by Implication.—It is well established that when a power comes within the reasonable intendment of one clause in the Constitution, an express gift of a portion of the power, in another clause, will not be taken to cut the power down by implication. Thus in the Legal Tender Cases, 12 Wall. 457, it was held that the clause giving Congress express power “to coin money, regulate the value thereof, and of foreign coin,” did not contain an implication that Congress had no other powers over the currency.

“If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the Constitution has always been construed. On the contrary it has been ruled that power over a particular subject may be exercised as auxiliary to an express power, though there is another express power relating to the same subject, less comprehensive.” (Per Strong, J., Legal Tender Cases, 12 Wall. at p. 544. See also United States v. Marigold, 9 How. 560; Rhode Island v. Massachusetts, 12 Pet. 657.)

Exception Marks Extent of Power.—“It is a rule of construction acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted — that which the words of a grant could not comprehend.” (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. at p. 191. See also Rhode Island v. Massachusetts, 12 Pet. 657.

Nature and Objects of the Power.—The Court should look to the nature and objects of the power, in the light of contemporary history, and give to the words of the Constitution such operation, consistent with their legitimate meaning, as to fairly attain the ends proposed. (Prigg v. Pennsylvania, 16 Pet. 539; Gibbons v. Ogden, 9 Wheat. 1) Consequently, though it is a general rule in the construction of statutes that extrinsic evidence, such as reference to the proceedings in Parliament, is not admissible to vary or add to the terms of a statute (Reg. v. Hertford College, 3 Q.B.D. 693; Richards v. M‘Bride, 8 Q.B.D. 119), it would seem that the Debates of the Convention, or other contemporary records, may be referred to as a guide to the construction of the Constitution.




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