The Name Change That Was Not a Name Change: How the Whitlam Government Retired “the Commonwealth” from the Statute Book
A documented account of the legislative instruments by which the Government of the Commonwealth of Australia became known as the Australian Government, and what the parliamentary record actually shows.
See also: The Duumvirate.
The Constitutional Starting Point
The name of the government is not a matter of convention or administrative preference. It is fixed in the Commonwealth of Australia Constitution Act 1900 (UK), which establishes “the Government of the Commonwealth” as the constitutional description of the federal executive. The Constitution uses “the Commonwealth” throughout, and that name reflects a deliberate choice made at the 1891 constitutional convention in Sydney, where Henry Parkes proposed it to convey that the six colonies were uniting “for the common good” rather than out of fear or conquest.
That constitutional name has never been altered. Doing so would require a successful referendum under section 128 of the Constitution. No such referendum has been held. The Commonwealth of Australia remains the Commonwealth of Australia in constitutional law.
What changed, beginning in 1973, was the administrative and statutory vocabulary used in Commonwealth legislation and official publications. The instruments by which that change was made are identifiable, dateable, and on the public record.
The Pre-History: Menzies and the Commonwealth of Nations Problem
The impulse to replace “Commonwealth” in government communications predates the Whitlam government by nearly a decade. In 1965, Prime Minister Robert Menzies indicated a preference for the name “Australian Government” in order to prevent confusion with the Commonwealth of Nations, the post-imperial association of former British territories that had adopted “Commonwealth” as part of its own name. The concern was practical: two distinct entities sharing the same word created genuine ambiguity in international contexts.
Menzies did not legislate the change. It remained a preference, not a policy. The terminology in Commonwealth Acts and official publications continued to use “Commonwealth” throughout his tenure and those of his successors until the election of the Whitlam government in December 1972.
The Duumvirate: December 1972
On 2 December 1972, the Australian Labor Party won the federal election. On 5 December 1972, Gough Whitlam was sworn in as Prime Minister and Lance Barnard as Deputy Prime Minister. For the fourteen days from 5 to 19 December 1972, these two men held all twenty-seven ministerial portfolios between them while the full ministry was being constituted. This arrangement is known as the Duumvirate.
The arrangement was legally unremarkable. Section 64 of the Constitution permits the Governor-General to appoint ministers who must become or already be members of Parliament, and it contains no requirement for a minimum number. The Duumvirate was unusual but not unconstitutional.
During those fourteen days, approximately forty executive decisions were made, covering matters including the abolition of conscription, the release of draft resisters, the recognition of the People’s Republic of China, the withdrawal of troops from Vietnam, and various administrative restructuring matters. No complete consolidated public list of all Duumvirate instruments has ever been published. Records are dispersed across departmental archives rather than presented as a unified document.
None of the verified Duumvirate decisions changed the name of the government. The name change that followed was achieved through subsequent parliamentary legislation, with both houses of Parliament informed of and consenting to what was described as purely formal revision.
The First Instrument: Acts Interpretation Act 1973 (No. 79 of 1973)
The first legislative step was taken on 30 May 1973, when the Acts Interpretation Bill 1973 was debated in the House of Representatives during the second reading stage. The Bill was an amendment to the Acts Interpretation Act 1901-1966, the foundational interpretive statute that defines terms used throughout Commonwealth legislation.
The Bill was assented to on 19 June 1973 and came into operation that same day, with one subsection deferred to a date to be fixed by Proclamation.
The operative provision was section 4, which amended section 17 of the principal Act. Section 4(1) substituted a new paragraph (a) defining “Australia” or “the Commonwealth” as meaning “the Commonwealth of Australia and, when used in a geographical sense, does not include an external Territory.” Notably, this retained “the Commonwealth” as a valid descriptor. It also introduced new territorial definitions distinguishing internal from external territories.
Section 4(2) substituted a new paragraph (m) into section 17, which previously defined “The Gazette” as the Commonwealth of Australia Gazette. The new paragraph read:
“‘The Gazette’ means the Commonwealth of Australia Gazette published before the date of commencement of sub-section (2) of section 4 of the Acts Interpretation Act 1973 or the Australian Government Gazette published on or after that date.”
Sub-section 4(2) was the deferred provision. The Proclamation fixing its commencement was made effective from 1 July 1973. From that date, the official Gazette of the Commonwealth was renamed the Australian Government Gazette. All references to “The Gazette” throughout Commonwealth legislation would henceforth refer to the publication bearing the new name.
This is the precise legislative moment at which the words “Australian Government” first appeared in a definitional provision of a Commonwealth Act. The change was to the name of a publication, not to the name of the government itself.
Historic Gazette records
1973 Gazettes: https://www.legislation.gov.au/gazettes/historic/1973
Commonwealth of Australia Gazette, No. 79, published 30 June 1973 1973GN79 (pdf)
Australian Government Gazette, No. 80, published 2 July 1973 1973GN80 (pdf)
Australian Government Gazette, No. 81, published 5 July 1973 1973GN81 (23Mb pdf)
From the bottom of page 1, of 5 July 1973 Gazette:
Australian Government Acts and Statutory Rules, and Australian Capital Territory Ordinances and Regulations together with other Australian Government publications may be purchased at the Australian Government Publishing Service Book Centres or by mail (addresses are shown above).
Australian Government Acts and Statutory Rules as well as selected Australian Government publications may also be purchased from the Australian Government Sub-Treasuries in Adelaide, Brisbane and Hobart or by mail (addresses are shown above). [emphasis added]
See also Timing of the Australian Government commencement.
The Second Instrument: Statute Law Revision Act 1973 (No. 216 of 1973)
The more extensive change came six months later. On 12 December 1973, the Statute Law Revision Bill 1973 was introduced in the House of Representatives by Mr Enderby, Minister for Secondary Industry and Supply. The Bill was presented to both houses as a housekeeping measure, its stated purpose being to prepare the statute book for a planned consolidation of Commonwealth legislation.
The second reading speech delivered by Mr Enderby in the House of Representatives explained the context. Attorney-General Senator Murphy had announced in October 1973 that the government intended to publish a bound consolidation of all Commonwealth Acts as in force at the end of that year. The last such consolidation had been in 1950, and the statute book had more than doubled in size since then. The Statute Law Revision Bill was the necessary preliminary step – clearing obsolete provisions, correcting errors, and updating terminology – before the consolidation work could proceed.
Mr Enderby’s statement of purpose was explicit: “the main object of the Bill is merely to cut away the dead wood on the statute-book.” He added that it also “corrects errors and updates some matters of form” and then gave Parliament this assurance: “I would like to assure honourable members that the Bill will not effect any change in substance in the law.”
The following day, 13 December 1973, the Bill was received by the Senate. Senator Murphy moved the second reading and incorporated his speech in Hansard by leave. His assurance mirrored Enderby’s precisely: “I hasten to assure honourable senators that the Bill will not effect any change in substance in the law.”
The Opposition, through Mr Killen (Moreton), supported the Bill without objection. It passed both houses with minimal debate and received Royal Assent on 19 December 1973. It came into operation on 31 December 1973. A companion instrument, the Statute Law Revision Act 1974, also came into operation on 31 December 1973.
The operative mechanism was Schedule 1, which worked through section 3 of the Act. Schedule 1 listed hundreds of Acts in a two-column table: the Act in column one and the extent of amendment in column two. Entry after entry in that schedule carried instructions in the form “Omit ‘of the Commonwealth'” from specified sections of specified Acts, and in a number of cases substituted “Australian Government” for “Commonwealth” in Act titles and references.
As one example among many: the Air Accidents (Commonwealth Liability) Act 1963-1971, as amended by the Air Accidents (Australian Government Liability) Act 1973, was further amended to omit “of the Commonwealth” from multiple sections. The Compensation (Commonwealth Employees) Act 1971 became the Compensation (Australian Government Employees) Act 1971-1973. The Air Force Act 1923-1965 was amended to replace “Commonwealth Naval Forces” with “Naval Forces of Australia.”
The Acts Interpretation Act 1901-1966, as already amended by the Acts Interpretation Act 1973, was itself amended by the Statute Law Revision Act 1973 Schedule 1, with further omissions of “of the Commonwealth” from sections 26 and 30.
What Was Changed and What Was Not
It is important to be precise about what these instruments did and did not do.
What changed: The statutory vocabulary used in Commonwealth legislation. Dozens of Acts were amended to remove “of the Commonwealth” from their text. The official Gazette was renamed. Act titles using “Commonwealth” in connection with employment and liability were updated to use “Australian Government.” These changes took effect throughout the statute book from 31 December 1973.
What did not change: The constitutional name. The Commonwealth of Australia remains the Commonwealth of Australia. Section 4(1) of the Acts Interpretation Act 1973 retained “the Commonwealth” as a valid synonym for Australia throughout all Commonwealth Acts. The High Court, federal courts, and the Constitution itself continue to use “the Commonwealth” as the primary descriptor of the federal polity. The Constitution was not amended, because it cannot be amended except by referendum.
What academic commentary notes: Professor Anne Twomey has observed that the Whitlam government was motivated not only by the practical concern about confusion with the Commonwealth of Nations but also by a desire to blur the distinctions between the Commonwealth and the states in an attempt to increase federal power. Whitlam himself had argued in Parliament that the term “Commonwealth” was thought to indicate continued dependence on Britain, and that the variety of terms in use – national, federal, Commonwealth, Australian – was irrational and confusing. Country Party Senator Drake-Brockman accused the government of favouring “Australian” because of its wish for a unitary rather than federal political structure.
The Parliamentary Assurances and Their Significance
The assurances given in both houses by both Enderby and Murphy – that the Statute Law Revision Bill “will not effect any change in substance in the law” – are now part of the parliamentary record. Under section 15AB of the Acts Interpretation Act 1901, Hansard is admissible extrinsic material to assist in the interpretation of legislation. The stated intent of the ministers who introduced the Bill is therefore available to any court, tribunal, or party examining the legal effect of the changes made.
Those assurances have been characterised by some commentators as a misrepresentation to Parliament, on the basis that removing “of the Commonwealth” from hundreds of Acts was not merely formal but substantive in its effect on the relationship between the people, the Commonwealth, and the administrative state. That argument has not been tested in any court.
What is established on the record is simpler and narrower: the ministers said the changes were formal, not substantive; the Opposition accepted that characterisation; Parliament passed the Bill; and the constitutional name was left untouched.
The Sequence of Dates
For reference, the precise sequence is as follows.
19 June 1973 – Acts Interpretation Act 1973 (No. 79 of 1973) assented to. Operative from that date, with section 4(2) deferred to proclamation.
1 July 1973 – Proclamation bringing section 4(2) into force. The official Gazette becomes the Australian Government Gazette. All references to “The Gazette” in Commonwealth legislation now refer to the publication under its new name.
12 December 1973 – Statute Law Revision Bill 1973 introduced in the House of Representatives by Mr Enderby. Second reading speech assures the House there is no change in substance.
13 December 1973 – Statute Law Revision Bill received and passed by the Senate. Senator Murphy gives the same assurance.
19 December 1973 – Statute Law Revision Act 1973 (No. 216 of 1973) assented to.
31 December 1973 – Statute Law Revision Act 1973 and Statute Law Revision Act 1974 both come into operation. Systematic substitution of “Australian Government” for “Commonwealth” terminology throughout the Commonwealth statute book takes effect.
The Record That Travels Forward
The facts established by this research may be summarised as follows.
The Government of the Commonwealth of Australia did not become the “Australian Government” by any single declaratory Act. No Act passed by the Parliament of Australia has ever declared that the government shall be known by that name. The constitutional name was never altered and can only be altered by referendum.
What occurred was a staged legislative process spanning 1973 that renamed the official Gazette, updated Act titles, and removed “of the Commonwealth” from the text of hundreds of statutes, carried out under the description of formal statute law revision preparatory to a consolidation project. Both ministers responsible gave Parliament explicit assurances that the changes were formal and not substantive.
The question of whether those assurances accurately described the effect of the changes, and whether the removal of “of the Commonwealth” from the statute book has had substantive consequences for the legal relationship between the people, the Commonwealth, and the administrative structures that exercise power over them, remains a question for legal analysis and, ultimately, judicial determination.
What this article has done is establish the record. The record shows the instruments, the dates, the sections, and the words spoken in Parliament. That record is the only thing that travels forward.
Sources: Commonwealth of Australia Constitution Act 1900 (UK); Acts Interpretation Act 1973, No. 79 of 1973 (assented 19 June 1973); Statute Law Revision Act 1973, No. 216 of 1973 (assented 19 December 1973, operative 31 December 1973); House of Representatives Hansard, 28th Parliament, 12 December 1973 (Enderby second reading speech); Senate Hansard, 28th Parliament, 13 December 1973 (Murphy second reading speech); Wikipedia, “Australian Government” (citing Anne Twomey); Federal Register of Legislation, legislation.gov.au.
Summary
Australia and the Commonwealth of Australia Are Not the Same: A Documented Submission
Preliminary Observation
This submission does not assert that Australia and the Commonwealth of Australia have never been used interchangeably in casual speech or colloquial context. It asserts something more precise: that “Australia” and “the Commonwealth of Australia” are constitutionally, legally, and documentably distinct descriptions – one geographical, one constitutional – and that the instruments by which “Australia” came to substitute for “the Commonwealth of Australia” in official usage are themselves on the public record, verifiable, and demonstrate that the substitution was made without the constitutional authority required to alter the foundational compact of the people.
The court is invited to engage with the documents. Not the assertion. The documents.
Part One: The Constitutional Text Distinguishes Them
The Commonwealth of Australia Constitution Act 1900 (UK) establishes the Commonwealth of Australia. Its Preamble states:
“WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.”
Covering Clause 3 directs that “the people… shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia.”
Covering Clause 6 defines the term: “‘The Commonwealth’ shall mean the Commonwealth of Australia as established under this Act.”
“Established under this Act.” The Commonwealth of Australia was established – it came into existence – by the agreement of the people, given legal effect by the Constitution Act. It is a compact of the people. Its name – “Commonwealth of Australia” – describes that compact.
“Australia” in the Constitution is used differently. It appears as a geographical description – “the Commonwealth of Australia” encompasses the territories, but “Australia” alone describes the continent and its surrounding territories. The Constitution does not define “Australia” as synonymous with “the Commonwealth of Australia.” It uses them for different purposes in different clauses.
The distinction is not semantic. It is structural. The Constitution established a Commonwealth – a compact of the people. It did not establish a country called Australia. The country was already there. The Commonwealth was created by agreement.
Part Two: The Parliament Has Legislated the Distinction
If “Australia” and “the Commonwealth of Australia” were the same thing, no legislative instrument would be needed to make them interchangeable. The fact that Parliament enacted the Acts Interpretation Act 1973 to create that interchangeability is itself evidence that they were not already the same.
Section 4(1)(a) of the Acts Interpretation Act 1973 (No. 79 of 1973), assented to 19 June 1973, substituted a new definition into the Acts Interpretation Act 1901-1966:
“‘Australia’ or ‘the Commonwealth’ means the Commonwealth of Australia and, when used in a geographical sense, does not include an external Territory.”
This is a definitional provision. It operates in the domain of statutory interpretation. It makes “Australia” and “the Commonwealth” mean the same thing for the purposes of Acts of Parliament passed after its commencement – but only by legislative definition, not by constitutional identity.
The submission is as follows: a definition that says “A means B” for statutory purposes does not make A and B the same thing in fact or in constitutional law. It makes them interchangeable for a specific legislative purpose. The definition operates on the statute book. It does not operate on the Constitution, which section 128 reserves exclusively to the referendum process for amendment.
If “Australia” and “the Commonwealth of Australia” were constitutionally identical, section 4(1)(a) of the Acts Interpretation Act 1973 would be redundant. Parliament does not enact redundant provisions. The provision exists because the terms required legislative equivalence that they did not previously possess.
Part Three: The Official Record Demonstrates They Were Treated as Different
The Commonwealth of Australia Gazette was the official publication of the Government of the Commonwealth of Australia from 1 January 1901. Its masthead, for seventy years, read:
Commonwealth of Australia Gazette PUBLISHED BY AUTHORITY
From January 1971, under the Gorton Coalition government, the masthead changed to:
Commonwealth of Australia Gazette PUBLISHED BY AUTHORITY BY THE AUSTRALIAN GOVERNMENT PUBLISHING SERVICE
Two different vocabularies appeared in the same masthead. “Commonwealth of Australia” in the title. “Australian Government” in the publisher attribution. If they were the same entity, there would be no distinction to draw. The distinction was drawn, and it was drawn in the official masthead of the official publication of the Government of the Commonwealth of Australia.
On 1 July 1973, following the Proclamation by Governor-General Hasluck dated 27 June 1973 – signed on the advice of Attorney-General Murphy – the masthead changed again:
Australian Government Gazette Published by Authority by the Australian Government Publishing Service
The publication was renamed from “Commonwealth of Australia Gazette” to “Australian Government Gazette.” It was given a new name because it had a different name before. Things that are the same do not require renaming.
The instrument that effected the renaming – section 4(2) of the Acts Interpretation Act 1973 – defines “The Gazette” as meaning the Commonwealth of Australia Gazette before the Proclamation and the Australian Government Gazette on or after that date. The provision itself distinguishes between the two. If they were the same publication by definition, no transitional provision would be required. The provision exists because they were different.
Part Four: The Great Seal Demonstrates They Were Treated as Different
The Letters Patent of 29 October 1900 establishing the office of Governor-General directed:
“There shall be a Great Seal of and for Our said Commonwealth which Our said Governor shall keep and use for sealing all things whatsoever that shall pass the said Great Seal.”
The seal was “of and for Our said Commonwealth” – the Commonwealth of Australia as constituted by the people’s agreement. Every formal instrument of the government, from 1901 through 19 October 1973, was sealed with the Great Seal of the Commonwealth of Australia.
On 19 October 1973, following the passage of the Royal Style and Titles Act 1973, Queen Elizabeth II authorised by Royal Warrant a new Great Seal. The new seal was the “Great Seal of Australia.” Not the “Great Seal of the Commonwealth of Australia.” The jurisdiction description changed from “the Commonwealth of Australia and its Territories appertaining to the Crown” to “Australia and its Territories.”
If Australia and the Commonwealth of Australia were the same thing, the new seal would have the same name as the old one. It does not. It has a different name because it seals a different thing.
The formal instruments in the Gazette record confirm the transition. The July 1973 Gazettes, after the Gazette title had already changed, still used “Great Seal of the Commonwealth of Australia” in formal instruments. The seals changed at different times to the Gazette title, because they are different instruments, with different names, serving different jurisdictions – one the Commonwealth constituted by the people, the other Australia as a geographical and administrative entity.
Part Five: The Statute Law Revision Act 1973 Demonstrates They Were Treated as Different
The Statute Law Revision Act 1973 (No. 216 of 1973), operative from 31 December 1973, worked through the Commonwealth statute book entry by entry, omitting “of the Commonwealth” from hundreds of Acts and substituting “Australian Government” terminology throughout.
If “Australia” and “the Commonwealth of Australia” were the same, this extensive legislative exercise would have been unnecessary. The Statute Law Revision Act 1973 exists precisely because the existing statute book said “Commonwealth” and the government wished it to say “Australian Government” instead. The Act substituted one vocabulary for another. It would not have been needed if the vocabularies were already equivalent.
The introducing minister, Mr Enderby, told the House of Representatives on 12 December 1973 that the Bill “will not effect any change in substance in the law.” The Attorney-General, Senator Murphy, gave the Senate the same assurance. If “Australia” and “the Commonwealth of Australia” were the same – if the substitution was truly without substantive effect – both ministers were correct. If they were different – if the substitution had substantive consequences – Parliament was misled.
Either way, the fact that Parliament was told the substitution required a specific assurance of no substantive change confirms that the possibility of substantive change was real enough to require explicit denial. Assurances are given about things that are in question. The assurance itself confirms the distinction was recognised.
Part Six: The Referendum Requirement Confirms They Are Different
Section 128 of the Constitution provides:
“This Constitution shall not be altered except in the following manner…”
The manner required is referendum – a majority of all electors nationally and a majority of electors in a majority of states.
If “Australia” and “the Commonwealth of Australia” were the same, substituting one for the other throughout the official record of the Commonwealth, the statute book, the official Gazette, and the Great Seal would be a matter of no constitutional consequence – a mere change of label on an identical thing. No referendum would be required.
But if they are different – if the Commonwealth of Australia is the constitutional compact of the people constituted by the Preamble and the covering clauses, and “Australia” is a geographical description of a territory – then substituting one for the other is an alteration to the practical operation of the Constitution’s foundational vocabulary that engages section 128.
The government’s position – that the substitution required no referendum because it made no change in substance – is logically consistent only if Australia and the Commonwealth of Australia are the same thing. But if they are the same thing, no substitution was required. The substitution was made. A substitution of identical things is not a substitution. It is a tautology.
The logical structure is as follows:
If Australia and the Commonwealth of Australia are the same, the substitution changes nothing and was unnecessary.
If they are different, the substitution changes something and required referendum authority.
The substitution was made. It was therefore either unnecessary or unauthorised. The government cannot have it both ways.
Part Seven: The Court’s Own Vocabulary Demonstrates They Are Different
The High Court of Australia is constituted under Chapter III of the Constitution. Chapter III refers to “the High Court of Australia” – not “the High Court of the Australian Government” or “the Court of Australia.” The Constitution uses “Australia” in the geographical sense – the High Court of the land mass and its people – not “the Commonwealth” which is the compact that created the court.
But the court’s constituting Act is the Judiciary Act 1903 – an Act of the Parliament of the Commonwealth. The Parliament of the Commonwealth enacted that Act. The Commonwealth of Australia – the compact of the people – is the source of the Parliament’s authority.
When this court exercises judicial power, it does so under authority derived from the Constitution of the Commonwealth of Australia – the compact of the people who agreed to unite. The court’s authority does not derive from “Australia” as a geographical description. It derives from the Commonwealth as a constitutional entity.
If “Australia” and “the Commonwealth of Australia” are the same, the court’s authority is grounded in a geographical description of a continent. If they are different, the court’s authority is grounded in the constitutional compact of the people who created it.
The court itself has an interest in the answer, which is precisely why this submission is placed before it in writing rather than merely asserted.
Part Eight: The Practical Test
A simple and verifiable test resolves the question.
If Australia and the Commonwealth of Australia are the same thing, the following statements must be equivalent:
“I am one of the people of Australia” and “I am one of the people of the Commonwealth of Australia.”
The Constitution uses only one of these formulations. The Preamble says: “the people… have agreed to unite.” It does not say “the inhabitants of the continent of Australia have agreed to unite.” The people who agreed were the people of the colonies – identifiable, enumerable, specific. They were the people of the Commonwealth. They were not the geographical inhabitants of the land mass.
The people of the Commonwealth are those whose agreement constituted it. Their successors are those who inherit that constitutional relationship – men and women of the Commonwealth, parties to the compact, not merely inhabitants of a territory.
“Australia” describes where they live. “Commonwealth of Australia” describes what they constituted by agreement.
These are not the same statement. They cannot be made the same statement by legislative definition without altering the Constitution by referendum.
Conclusion
The submission is not that the court cannot apply the Acts Interpretation Act 1973’s definitional equivalence for statutory purposes. It can, and for ordinary statutory construction it must. The submission is that the definitional equivalence created by ordinary legislation does not resolve the constitutional question of whether Australia and the Commonwealth of Australia are the same entity in the foundational sense – and that the documented evidence demonstrates they are not.
The evidence is:
The Constitution uses them for different purposes.
Parliament enacted a specific provision to make them interchangeable – which would be redundant if they were already the same.
The official Gazette was renamed from one name to the other – which would be a tautology if they were already the same.
The Great Seal was renamed from one description to the other – which would be meaningless if they were already the same.
The statute book required systematic amendment to replace one vocabulary with the other – which would be unnecessary if they were already the same.
Parliament required specific assurances that the substitution changed nothing of substance – which would be superfluous if they were already the same.
None of these facts are disputed. All are on the public record. All are verifiable from primary sources.
The submission is that the court is being asked to hold that a substitution which required a Proclamation, an Act of Parliament, a Royal Warrant, and a systematic statute book revision was the substitution of one identical thing for another – and that no referendum was therefore required because nothing changed.
The documents say otherwise.
Ubi jus ibi remedium. Veritas odit moras.
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