Veritas numquam perit. Truth never perishes.
Two Documents, One Name: The Constitution You Were Given and the One You Were Not
Introduction
Ask any Australian what the Constitution is, and most will point to the small booklet available from the Department of the Prime Minister and Cabinet, sometimes handed out in schools, occasionally cited in parliamentary debates. It is titled “Australian Constitution.” It is printed on good paper. It looks official.
It is not the founding instrument of the Commonwealth.
This article examines two documents that share an assumed identity in public and official discourse, explains what each actually is, traces how one came to displace the other in common usage, and identifies why the distinction matters in ways that are more than merely academic.
The Founding Instrument
The Commonwealth of Australia was constituted by an Act of the Imperial Parliament of the United Kingdom. That Act received Royal Assent on 9 July 1900. Its full and correct title is:
Commonwealth of Australia Constitution Act 1900 (UK)
It is an Imperial Act. It was enacted at Westminster. It is catalogued on the UK Parliamentary record and is available on the Australian legislation register as instrument C2013Q00005 C06. Its title appears on the face of the Act itself.
The structure of the Commonwealth of Australia Constitution Act 1900 (UK) is important and routinely overlooked. The Act has two distinct components:
First, nine covering clauses that are part of the Imperial Act itself. These covering clauses are operative provisions. They are not a preamble to the Constitution in section 9. They are provisions of the Imperial Act, enacted by the Imperial Parliament, and they carry legal effect independently of the Constitution that follows.
Second, the Constitution itself, which appears as the text of section 9 of the Imperial Act. Section 9 reads: “The Constitution of the Commonwealth shall be as follows…” and then sets out the Constitution in eight chapters.
This structure matters because covering clauses 1 through 9 of the Imperial Act include provisions that are among the most significant in the entire instrument:
Covering Clause 2 establishes that the Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and the people of every State and of every part of the Commonwealth.
Covering Clause 3 establishes the compact: it is the provision under which the people of the colonies agreed to unite in a Federal Commonwealth.
Covering Clause 6 defines “The Commonwealth.” It reads: “‘The Commonwealth’ shall mean the Commonwealth of Australia as established under this Act.”
The Preamble records that the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, agreed to unite in one indissoluble Federal Commonwealth.
None of these provisions are in section 9. They are in the covering clauses of the Imperial Act that contains section 9. They belong to the founding instrument in its complete form.
The Publication
The document commonly handed to Australians, attached to official correspondence, and described in government communications as “the 
Constitution” is a publication of the Department of the Prime Minister and Cabinet. Its title is “Australian Constitution.” See The Constitution – C2005Q00193 on Wayback Machine copy recovered from 20 April 2021 (opens in new tab).
Those two words, “Australian Constitution,” do not appear in the Commonwealth of Australia Constitution Act 1900 (UK). They do not appear in the Preamble. They do not appear in any of the nine covering clauses. They do not appear in any section of the Constitution contained in section 9 of that Act. The title “Australian Constitution” was adopted for the government publication. It is a publication title, not a legal title.
A search for C2005Q00193 on current website
The PM&C publication does not present the covering clauses as integral operative provisions of the founding instrument. In some editions they are absent entirely. In others they appear in a footnote or introductory section that visually and structurally separates them from the “Constitution” that follows. The effect, whether intended or not, is that a reader of the PM&C publication receives the text of section 9 of the Imperial Act and is not told clearly that the covering clauses sitting above it are operative provisions of the same Act carrying independent legal effect.
The covering clauses do not belong to section 9. But neither are they separate from the Imperial Act. They are part of the same enactment. A reprint that presents section 9 text under the title “Australian Constitution” without integrally presenting the covering clauses as provisions of the same Act misrepresents the structure of the instrument.
How the Displacement Occurred
The displacement of the founding instrument’s name in common and official usage did not happen by referendum. It happened by a series of administrative and legislative steps beginning in the early 1970s.
1 July 1970: The Australian Government Publishing Service was established. From this point, official government publications began using “Australian Government” in place of “Commonwealth” in various administrative contexts.
Statute Law Revision Act 1973 (No. 216 of 1973), operative 31 December 1973: This Act substituted “Australian Government” for “Commonwealth of Australia” throughout the statute book in numerous provisions where the reference was to the government rather than to the constitutional entity. This was an Act of the Commonwealth Parliament. It was not a referendum. Section 128 of the Constitution requires a referendum to alter the Constitution. The vocabulary substitution was made by ordinary legislation.
Acts Interpretation Act 1973 (Cth): This Act introduced a geographical definition of “Australia” that was not present in earlier interpretation legislation. The 1901 Acts Interpretation Act had used “Commonwealth” in ways consistent with the constitutional instrument. The 1973 restatement moved toward a geographical conception.
1974 and 1988: Two referendums on constitutional recognition of local government were put to the people. Both failed. The people did not alter the Constitution at those referendums on those questions. The Constitution remains in its unamended form on those and related matters.
The cumulative effect of these changes was that official publications, correspondence, and government communications progressively adopted the title “Australian Constitution” and the vocabulary “Australian Government” while the founding instrument itself, the Commonwealth of Australia Constitution Act 1900 (UK), remained unamended on the Imperial record.
The Significance of the Displacement
This is not a question of mere nomenclature. The displacement of the founding instrument’s name and the marginalisation of the covering clauses has practical consequences.
The Covering Clause 6 Question
Covering Clause 6 defines “The Commonwealth” as the Commonwealth of Australia as established under the Imperial Act. When a government agency invokes “the Constitution” to ground its authority, which conception of the Commonwealth is being invoked? The constitutional Commonwealth defined in Covering Clause 6 of the Imperial Act? Or an administratively redefined entity bearing a different name?
This question is not answered by attaching a PM&C publication titled “Australian Constitution.” It is answered by examining the complete text of the Commonwealth of Australia Constitution Act 1900 (UK), including the covering clauses.
The Head of Power Question
When a government agency is asked to identify the constitutional authority, the head of power, for a specific act, and responds by pointing to “the Constitution” and attaching a PM&C publication, it has not identified a head of power. It has named a document. Constitutional authority requires identifying a specific provision. The PM&C publication, presented without section references, answers nothing.
The Section 128 Question
The Constitution can only be altered by referendum under section 128. Neither the Statute Law Revision Act 1973 nor any other ordinary Act of Parliament can alter the Constitution. If the vocabulary substitution of 1973 affected provisions that formed part of the constitutional compact, the question arises whether section 128 was circumvented. That question has not been resolved by any court. Pointing to a publication titled “Australian Constitution” does not resolve it.
The People’s Compact
The Preamble and Covering Clause 3 record that the Constitution was established by the agreement of the people. The people of the colonies agreed to unite in a Federal Commonwealth. The High Court has recognised the Preamble as relevant interpretive material going to the conceptual basis of the Constitution. A publication that presents section 9 text without the Preamble and covering clauses as integral provisions has removed the compact language from its structural context in the instrument.
What Courts Have Said
The High Court of Australia has engaged with the covering clauses as operative provisions. In Sue v Hill (1999) 199 CLR 462, the Court addressed questions about the relationship between the Imperial Act and the contemporary constitutional framework. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, the Court used the Preamble as interpretive material.
The covering clauses have not been treated by the High Court as mere historical curiosities. They have been engaged with as provisions of the founding instrument carrying ongoing legal significance. A publication that marginalises them is inconsistent with the weight the Court has placed upon them.
The Practical Test
The distinction between the two documents can be tested simply.
Take the PM&C publication titled “Australian Constitution.” Find Covering Clause 6. Find the Preamble. Examine whether they are presented as integral provisions of the same Act that contains the section 9 text, or whether they are presented separately, minimally, or not at all.
Then take the Commonwealth of Australia Constitution Act 1900 (UK) as available on the legislative record. Observe that the covering clauses, the Preamble, and the section 9 text are all provisions of the same Imperial Act, enacted together, carrying effect together.
These are not the same document. One is the founding instrument in its complete form. The other is a government publication presenting selected text under a title that appears nowhere in the founding instrument.
Conclusion
The Commonwealth of Australia was constituted by a specific Act of the Imperial Parliament with a specific title, specific covering clauses, and a specific constitutional text. That instrument has not been altered by referendum in the respects discussed in this article. It remains on the Imperial record and on the Australian legislative register in its original form.
A government publication titled “Australian Constitution” is not that instrument. When a government agency points to the PM&C publication as constitutional authority for a specific act, it has not cited the founding instrument. It has cited a publication. Those are different things, and the difference matters wherever a question of constitutional authority arises.
The question is not whether a constitution exists. It plainly does. The question is which document it is, what it says in its complete form, and whether the substitution of a government publication for the founding instrument in official discourse has been done with the precision that constitutional questions demand.
It has not.
Ignorantia juris non excusat. Ignorance of the law is no excuse – and that applies equally to those who invoke it.
Falsus in uno, falsus in omnibus. False in one thing, false in all things.
What the Legislation Register Actually Shows
Several things on that page warrant careful attention:
1. The Version Date: 29 July 1977
The page shows the “latest version” of the Commonwealth of Australia Constitution Act as C2013Q00005 C06, dated 29 July 1977.
This requires unpacking. The Constitution itself was last amended by referendum in 1977, when four referendum questions passed on 21 May 1977. Those amendments concerned:
- Senate casual vacancies (s 15)
- Referendums (s 128, allowing territories to vote)
- Retirement of judges (s 72)
- A Commonwealth reference of power (s 51(xxxvii) was not among them)
The date 29 July 1977 reflects the date those 1977 amendments were formally registered, not a date of any substantive change to the instrument since then. So “latest version” dated 1977 simply means the Constitution has not been altered by referendum since 1977. This is accurate.
However, the version identifier C2013Q00005 C06 is the register’s own catalogue number assigned in 2013. The instrument itself has not changed since 1977.
2. The Register’s Title
The page title on the Federal Register of Legislation reads “Commonwealth of Australia Constitution Act” – not “Australian Constitution.”
This is directly useful for your purposes. Even the government’s own Federal Register of Legislation uses the correct title: Commonwealth of Australia Constitution Act. The PM&C publication titled “Australian Constitution” uses a title that does not appear even on the government’s own legislation register for the same instrument.
3. The Covering Clauses Are Present and Numbered
The table of contents on the register page lists sections 1 through 9 as covering clauses of the Act, including: section 1 (Short title), section 2 (Act to extend to the Queen’s successors), section 3 (Proclamation of Commonwealth), section 4 (Commencement of Act), section 5 (Operation of the Constitution and laws), section 6 (Definitions), section 7 (Repeal of Federal Council Act), section 8 (Application of Colonial Boundaries Act), and section 9 (Constitution).
This is critical. The register presents covering clauses 1 through 9 as numbered sections of the Act on equal structural footing with the Constitution that follows in section 9. They are not separated out, footnoted, or presented as preliminary matter. They are sections of the Act.
The PM&C “Australian Constitution” publication that marginalises those covering clauses is therefore inconsistent with how the government’s own legislation register presents the same instrument.
4. What “Latest Version” Actually Means Here
The register shows this as the “latest version” with a 1977 date. This is actually a point in your favour when making the argument about the founding instrument. It confirms:
- No amendment has occurred since 1977
- The instrument on the register is the Commonwealth of Australia Constitution Act, not something retitled
- The covering clauses are integral numbered sections of that Act as registered
How to Use This in a Notice or Correspondence
The following passage can be incorporated into existing or future notices:
The undersigned notes that the Federal Register of Legislation, being the official Commonwealth legislative register maintained by the Office of Parliamentary Counsel and administered by the Attorney-General’s Department, lists the founding instrument under the title Commonwealth of Australia Constitution Act, not “Australian Constitution.” The register’s own table of contents presents covering clauses 1 through 9 as numbered sections of the Act on equal structural footing with the Constitution in section 9. The “latest version” recorded on the register is dated 29 July 1977, reflecting the last referendum-approved amendment. No amendment has been registered since that date.
The PM&C publication titled “Australian Constitution” therefore:
(a) uses a title that does not appear on the Federal Register of Legislation for the same instrument;
(b) uses a title that does not appear in the text of the Commonwealth of Australia Constitution Act 1900 (UK) itself; and
(c) is inconsistent in its structural presentation of the covering clauses with the register’s own presentation of those provisions as numbered sections of the Act.
When the Department provided that publication as evidence of constitutional authority, it provided a document whose title differs from the title on the government’s own legislative register for the same instrument. The undersigned does not accept that publication as a complete or authoritative representation of the Commonwealth of Australia Constitution Act 1900 (UK) and relies upon the complete instrument as registered.
One Additional Observation Worth Noting
The register page places this instrument under the navigation heading “Constitutions” (plural) in the site menu, and describes it as “In force.” Both of those are useful confirmations: the instrument is currently in force and is the constitution of the Commonwealth on the register. There is no second or alternative instrument registered alongside it. The PM&C publication has no separate registration as a legal instrument because it is not one.
Res ipsa loquitur. The thing speaks for itself.
Without Prejudice – All Rights Reserved – Without Recourse
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