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Supremacy of the Constitution.

The preamble of the Act recites the agreement to unite “under the Constitution hereby established”; and the Act demonstrates the supremacy of the Constitution over all the organs of government within the Commonwealth.

Colonial Constitutions.—The Legislatures of British Colonies have necessarily existed under some higher law, and have from the nature of the case recognized some limits to their power other than their own will. These limits, however, have been so vaguely conceived, that in practice the restraint has hardly been felt. The paramount nature of Imperial legislation has of course been evident; but the sphere of local and Imperial laws has been different, and there has been little conflict. On the few occasions when colonial laws have been challenged as ultra vires, the English Courts, and especially the Privy Council, have been emphatic in their assertion of the plenitude of the powers of the colonial legislatures, and have laid it down that “an act of the local legislature, lawfully constituted, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament.”note Thus colonial legislatures have been formed on the model of the Imperial Parliament; and the Acts giving a Constitution to a colony have done little more than establish a Legislature, and have left the further organization of government within the colony if not to the establishment, at any rate to the control of the Legislature. The source of executive power, and the origin of courts of justice, may have been in the Crown, but that in no wise


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withdrew these matters from the control of the Legislature. The Crown is commonly an immediate party to a colonial as to an Imperial Act; most colonial laws are enacted by the Queen's Most Excellent Majesty, and not by any less authority; and in all cases the express or implied assent of the Crown itself is given by actual confirmation or by “leaving the Act to its operation.”

The legislative power is all-embracing, and within the colony all other powers of government follow it.

A Constitution, therefore, which establishes a Legislature not merely as a representative assembly responsible to its constituency, but legally bound by many and exact limitations, is hardly less a novelty in a British colony than it would be in the United Kingdom. This will be the more apparent if we consider for a moment what would be the position were the paramount power of the Imperial Parliament removed. In the colonies as hitherto organized, the removal of the only legal control would leave the colonial legislature unquestioned sovereign, wielding in the colony the same power that the Imperial Parliament exerts in the United Kingdom. In the Commonwealth of Australia, however, the disappearance of the Imperial Parliament would not exalt the Commonwealth Parliament; the sovereignty would fall upon the Commonwealth as organized behind the Parliament by the Constitution. If now we remember that the supremacy of the Imperial Parliament is a force rarely exerted, while the pressure of the Constitution is constant, we shall see that there was reason on the side of those who murmured that a “cast-iron Constitution” was something essentially different from the Parliamentary rule to which the colonies had been accustomed.

Meaning of “The Constitution.”—“The Constitution,” therefore, in the Commonwealth is an exact term. In the first place, it gives the title to the Act of Parliament under which the Commonwealth is established. This Act may be cited as “The Commonwealth of Australia Constitution Act” (section i.). That does not mean that everything in


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the Act is technically part of the Constitution; it merely follows the common plan of taking the title from the most conspicuous feature in the Act. The covering clauses (sections i.-viii., and the introductory words of sect. ix.) are no part of the Constitution; from their nature, providing for the establishment of the Constitution, and dealing with its authority, they fitly stand outside and above the instrument they govern, and rest upon the supremacy of the Imperial Parliament.

Section ix. provides: “The Constitution of the Commonwealth shall be as follows”; and then under the title “The Constitution,” we find set out the organization of the government of the Commonwealth, the duties, powers, and limitations of the organs of government, and the organization of the Commonwealth behind its government. “The Constitution,” then, is a definite instrument, having the Imperial Parliament for its source, binding the organs of government which it establishes, and therefore superior in authority to the enactments of the legislature which it creates; but it may be freely altered or added to by the Commonwealth as is provided by the instrument itself.

The Constitution and Constitutional Law.—In the British Constitution, we are familiar with the fact that the “Law of the Constitution” does not exhaust the rules under which our system of government is carried on; there is the custom as well as the law of the constitution, to complicate the terms “constitutional” and “unconstitutional.” In the Commonwealth, there is a further complication; for “The Constitution” does not exhaust even the Constitutional law in force there. An exhaustive constitutional code could hardly be compiled for any part of the British Dominion without codifying the whole or a great part of the common law. The Parliament has power over several subjects, the laws on which are ordinarily regarded as part of constitutional law—e.g. the qualification of candidates and electors for the Parliament, disputed elections, privilege of the Houses and the members thereof, naval and military defence, the organization of the Civil Service, the establishment


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of courts of justice, etc. Then there is the constitutional law affecting the Commonwealth as a part of the Empire, or as a dependency. There is the constitutional law of each of the States. There are rules affecting the relation of the Government to the subject and the subject to the Government. Of all of these account must be taken by one who would understand the system under which the political life of Australia is lived; and they all form part of constitutional law as generally conceived by Englishmen.

The Authority of the Constitution in the State.—The emphatic declaration of Art. vi. in the Constitution of the United States, that the Constitution and the laws made in pursuance thereof shall be “the supreme law of the land,” is not to be found in the Commonwealth Constitution. The Constitution Act can claim no higher force than belongs to an Act of the Imperial Parliament, and it is not the only Act in operation in the Commonwealth. The duty of the Commonwealth Executive to maintain the Constitution and execute the laws of the Commonwealth Parliament is expressed in its very establishment (section 61); the duty of the judiciary to recognize and enforce the “Constitution” and the laws made in pursuance of it, is manifest. But the position of the States Governments is different. They are not created and established by the Constitution; their executive and judiciary are not co-ordinate with, but subordinate to the State Parliament. The State Parliaments are bodies with “plenary powers,” a phrase which would cover many extravagant claims. It might be plausibly contended that in a State Court, State Law was paramount over Commonwealth Law, and that Commonwealth legislation was there controlled by State legislation, even to the extent of giving validity to Acts of nullification passed by the State Parliament as to Acts of the Commonwealth Parliament. Or it might be urged that the Constitution set up a separate and independent system; that its laws were cognizable in the Federal Courts alone, and that all causes brought in the State Courts were to be determined by the State laws as defined by the State


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Parliaments. There would thus be imperium in imperio —State Laws enforced by State Courts, Commonwealth Laws enforced by Commonwealth Courts. We have only to look to our own history, even our recent history, to see that such a dual system is conceivable. We remember the separateness of the ecclesiastical and royal courts, the court of admiralty and the courts of common law, the courts of common law and the equitable jurisdiction of the Chancellor, as cases where distinct and often conflicting systems claimed to deal with the same persons and subject matters within the same territory. Even when the sharpness of conflict was blunted by the acknowledgment of a common superior, the existence of the separate systems was not less a legal fact though its political importance was diminished.

As a measure of caution, then, the Act provides:— “V. This Act and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on the Courts, judges, and people of every State, and of every part of the Commonwealth, nothwithstanding anything in the laws of any State.”note

Thus in the causes within their jurisdiction, the Courts of the States are bound to uphold the Constitution and maintain the Commonwealth laws. As this is their duty, they have to determine for themselves whether an Act of the Parliament is in truth a law, whether it is within the powers committed by the Constitution to the Parliament. The interpretation of the Constitution, therefore, is not for the Judiciary of the Commonwealth alone; it falls upon every court throughout the Commonwealth, whatever the authority under which it sits.

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