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“… But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes .” Windeyer J (Ex parte Professional Engineers’ Association)
… ”A Federal constitution must be rigid . The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them. “ Gummow and Hayne JJ (Wakim, HCA27\99)
The above clearly and unambiguously demonstrates that the Constitution must only be interpreted in the way it was intended back in 1900 , and makes a mockery of the statement made by the Solicitor General of South Australia that you can pretend to read something different to what is written. In any event both the Parliament and the Judiciary are bound not only by the text, but also by its original interpretation and legally cannot go beyond that.
Provisions for change were provided for within the Constitution by virtue of s128, a referendum of the Australian people. This section allows to make changes to the Constitution, and keep pace with the changes of time. However, both the Parliaments and the judiciary of the Commonwealth of Australia and the United Kingdom are bound by the terms of the Constitution, and in particular s128.
This necessarily means that the Parliament of the United Kingdom cannot grant any powers to the Federal Parliament outside those already granted under the Constitution, or diminish them, without approval of the Australian people (s128, by referendum). Any powers granted to the Federal Parliament solely by an Act of the Parliament of the United Kingdom, by request of the Commonwealth, States or otherwise, without a referendum of the Australian people, is not only a violation of the Constitution, but also of British law, and the Act is null and void by operation of law.
WHAT THEN WERE THE INTENTIONS OF THE FRAMERS?
Sir John Quick and Sir Robert Garran were instrumental in framing the Australian Constitution Act, 1900, and together they wrote “the Annotated Constitution of the Australian Commonwealth” in 1901. This volume contains some 1008 pages and explains the entire Constitution almost word for word. As such they clearly illustrated how the framers intended that the Constitution should be interpreted and or used. Below an extract commencing on p346:
§ 33. "And all Laws"
No difficulty is suggested by the words, “and all the laws made by the Parliament of the Commonwealth under the Constitution.” The words “under the Constitution” are words of limitation and qualification. They are equivalent to the words in the corresponding sanction of the Constitution of the United States “in pursuance thereof.” Supra.
Not all enactments purporting to be laws made by the Parliament are binding; but laws made under, in pursuance of, and within the authority conferred by the Constitution, and those only, are binding on the courts, judges, and people. A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights, it imposes no duties; it affords no protection. (Norton v. Shelby County, 118 U.S. 425; see note § 447 “ Power of the Parliament of a Colony.”)
The Act itself is binding without limitation or qualification because it is passed by the sovereign Parliament, but the laws passed by the Parliament of the Commonwealth, a subordinate Parliament, must be within the limits of the delegation of powers or they will be null and void.
To be valid and binding they must be within the domain of jurisdiction mapped out and delimited in express terms, or by necessary implication, in the Constitution itself. What is not so granted to the Parliament of the Commonwealth is denied to it. What is not so granted is either reserved to the States, as expressed in their respective Constitutions, or remains vested but dormant in the people of the Commonwealth.
The possible area of enlargement of Commonwealth power, by an
amendment of the Constitution, will be considered under Chapter VIII.
"Every legislative assembly existing under a federal constitution is merely a sub-ordinate
law-making body, whose laws are of the nature of by-laws, valid whilst within the
authority conferred upon it by the constitution, but invalid or unconstitutional if they go
beyond the limits of such authority. There is an apparent absurdity in comparing the
legislature of the United States to an English railway, company or school board, but the
comparison is just…a law passed by Congress which is in excess of its legal powers, as
contravening the Constitution, is invalid;… a law passed by Congress is called an ‘Act’ of
Congress, and if ultra vires is described as ‘unconstitutional’; a law passed by the Great
Eastern Railway Company is called a ‘by-law’, and if ultra vires is called , not
‘unconstitutional’ but ‘invalid’.
“Differences, however, of words must not conceal from us essential similarity in things.
Acts of Congress, or of the Legislative Assembly of New York or of Massachusetts, are at
bottom simply ‘by-laws’, depending for their validity upon their being within the powers
given to Congress or to the State legislatures by the Constitution. Congress and the Great
Eastern Railway Company are in truth each of them nothing more than sub ordinate
law-making
bodies"
(Dicey's Law of the Constitution, p.137.)
"Every Act of Congress and every Act of the legislatures of the States, and every part of the Constitution of any State, which are repugnant to the Constitution of the United States, are necessarily void. This is a clear and settled principle of (our) constitutional jurisprudence." (Kent's Commentaries, L, p.314.)
"The legal duty therefore of every judge, whether he acts as a judge of the State of New York or as a judge of the Supreme Court of the United States, is clear. He is bound to treat as void every legislative act, whether proceeding from Congress or from the State legislatures, which is inconsistent with the Constitution of the United States.