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“It was a rule of common law that a colonial legislature was subordinate to the
English and afterwards to the British Parliament; that it could not pass laws in
conflict with the laws of England expressly applicable to the colonies. This rule was
confirmed by Statute.”
the Annotated Constitution of the Australian Commonwealth
Quick & Garran, 1901, pages 346, 347
“….But colonies, or commonwealths, having such a system of government, substantially
free and practically independent, are still subject to the original sovereign body, the
Queen in the British Parliament. That power, though dormant is not extinguished or
abandoned by the delegation. There is merely an implied compact not to interfere with
those communities as long as they govern themselves according to the terms of their
respective Constitutions.
”
(Markby’s Elements of Law, pp. 3, 4, 20.)
the Annotated Constitution of the Australian Commonwealth
Quick & Garran, 1901, page 328
The framers of the Constitution therefore made it abundantly clear, that the Parliament of the Commonwealth of Australia was bound, in no uncertain terms, by rigid and strict guidelines indicating the limits of its power to legislate. It cannot go outside those limits, if it does, the legislation is necessarily void.
Since there is no express authority conferred upon the Parliament to create a Styles and Titles, it is therefore explicitly denied. It would indeed be most odd, if a colony or Dominion were to be granted the right to create their own Kings and Queens.
It is denied under the Australian Constitution Act, 1900, and it is specifically denied under s8 of the Statute of Westminster, 1931, that is to say, to change the Style and Title effecting the Queen referred to under the Constitution Act, 1900.
Interestingly it should also be noted that no authority exists, under the constitution, to
create Australian citizens. Section 51. (xix) only allows for the naturalization of aliens into
British subjects. “ Subjects of the Queen, or British subjects, have rights, privileges, and
immunities secured to them by Imperial law, which they may assert and enjoy without
hindrance in any par of the Queen’s dominions, and in British ships on the high seas.”
(p957, Quick & Garran)
SO WHAT DOES IT ALL MEAN?
The Constitution was prepared for the future and the changes of time. Section 128 allows for changes to be made under the Constitution by way of a referendum of the Australian people. Remember that sovereignty lies with the people of Australia, a view already held by the High Court in Joosse v Australian Securities & Investments Commission (1998), Nationwide News v Wills (1992), Australian Capital Television Pty Ltd v The Commonwealth (1992), and Theophanous v Herald & Weekly Times Ltd (1994).
Only the Australian people are legally capable to make changes to the Constitution.
History proves, however, that the Australian people, do not like to vote for changes without informed consent, and often vote ‘no’ in referendums. Our politicians being aware of this habitually by-pass the Constitution and ignore the law and the rights and wishes of the people, and make changes without going to referendum. Maybe, that is what the High Court meant when stating that ‘the operation of the Constitution had changed whilst the text had not’ in Sue v Hill (1999). Our politicians habitually dispense with the law, and freely legislate outside the authority conferred upon the Parliament under the Constitution. The powers of Australian Parliament are limited under Section 51 (8), and our framers intended that to be so. They only allowed it to create ‘by-laws’ in regards to and limited by the sub-sections defined within Section 51 of the Constitution.
The Constitution is Section 9 of the Australian Constitution Act (short title), which is and remains an Act of the Parliament of the United Kingdom. Neither the Parliament of the United Kingdom, the Federal Parliament nor the Parliament of any of the States can make changes under the Constitution, Section 9, other than by the provisions established by law. That means that no Parliament can make any changes other than by way of Section 128, a referendum of the Australian people. It should be understood, that the Parliament of the United Kingdom is also bound by the terms and conditions of its own statutes, such as the Australian Constitution Act.
For any Parliament, including that of the United Kingdom, to pass legislation and make changes in regards to the Constitution, or the meaning thereof, is a violation of existing law, and any such legislation is void by virtue of the Bill of Rights, 1688, and the Statute of Monopolies, 1623.
The Parliament of the United Kingdom is bound by the terms of its own legislation, and neither can expand nor diminish the powers granted to the Federal Parliament under the Constitution. At all times a referendum (plebiscite) of the Australian people in accordance with s128 must be held. As such the Federal Parliament were incapable of exercising s51(xxxviii) to enact the Australia Act 1986.
Australia is and remains a Dominion, a British possession, as defined under Section 18 (2) of the Interpretation Act 1889 (UK), 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 a British possession.”