Veritas numquam perit. Fiat justitia ruat caelum. Truth never perishes. Let justice be done though the heavens fall.
The following is the analysis of this FOI from 2024.
On this page: Example inclusion for correspondence
The King of Australia: A Constitutional Record of Unanswered Questions
A Formal Analysis of FOI/2024/260 and the Constitutional Foundation of the Proclamation of King Charles III
Preface
This document is a formal analysis of a completed Freedom of Information process and the constitutional questions it has placed on the public record. Every finding in this document is drawn from primary sources: the text of the Commonwealth of Australia Constitution Act 1900 (UK), the Federal Register of Legislation, documents produced by the Department of the Prime Minister and Cabinet in response to FOI/2024/260, the Proclamation of King Charles III dated 11 September 2022, the Australian Symbols Booklet produced by the Department of the Prime Minister and Cabinet, and the Royal Warrant of 19 October 1973.
No claim in this document is based on inference beyond what the documents themselves disclose. Where a question is unresolved, it is identified as such. Where the absence of a document is itself the finding, that is stated precisely.
Part One: The Constitutional Framework
1.1 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 correct and complete title, as it appears on the face of the Act and on the Federal Register of Legislation under identifier C2013Q00005 C06, is the Commonwealth of Australia Constitution Act 1900 (UK).
The Act has two components. The first is nine covering clauses, numbered 1 through 9, which are operative provisions of the Imperial Act carrying legal effect independently of what follows. The second is the Constitution of the Commonwealth, which appears as the text of section 9 of the Imperial Act.
The covering clauses most relevant to this analysis are:
Covering Clause 1: The Act may be cited as the Commonwealth of Australia Constitution Act.
Covering Clause 2: The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.
Covering Clause 5: 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.
Covering Clause 6: “The Commonwealth” shall mean the Commonwealth of Australia as established under this Act.
These are not introductory or decorative provisions. They are operative provisions of the Imperial Act. Covering Clause 2 is the mechanism by which the Constitution’s references to the Crown extend to successive sovereigns. Its precise language is the subject of Question 3 in FOI/2024/260.
1.2 The Alteration Mechanism
Section 128 of the Constitution, contained within section 9 of the Imperial Act, provides the only mechanism by which the Constitution may be altered. A proposed law to alter the Constitution must pass both Houses of Parliament by absolute majority, be submitted to the electors of the States and Territories, and be approved by a majority of all electors voting and by a majority of electors in a majority of States.
The Constitution has been altered by referendum on eight occasions. The most recent alteration was in 1977. The Federal Register of Legislation records the last amendment date as 29 July 1977. No referendum has altered the Constitution since that date.
1.3 The 1973 Vocabulary Substitution
Between 1970 and 1973, a series of administrative and legislative steps progressively substituted “Australian Government” for “Commonwealth” in official usage. The relevant steps include:
1 July 1970: Establishment of the Australian Government Publishing Service.
The Statute Law Revision Act 1973 (No. 216 of 1973), operative 31 December 1973: Systematic substitution of “Australian Government” for “Commonwealth of Australia” throughout the statute book in numerous provisions.
The Acts Interpretation Act 1973 (Cth): Introduction of a geographical definition of “Australia” not present in earlier interpretation legislation.
19 October 1973: Issue of the Royal Warrant by Queen Elizabeth II granting a new Great Seal for the use of “Our Government of Australia,” replacing the Great Seal granted by Royal Warrant of 16 February 1954.
These changes were made by ordinary legislation and royal prerogative. They were not submitted to referendum under section 128. The Constitution itself was not altered. Covering Clause 6’s definition of “The Commonwealth” was not altered.
1.4 The Royal Style and Titles
The Royal Style and Titles Act 1953 (Cth) established the style and title of Queen Elizabeth II for Australia. The Royal Style and Titles Act 1973 (Cth) replaced it with a new form, establishing the style: “Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.”
This Act was passed by the Commonwealth Parliament. It was not submitted to referendum. The head of power under which it was enacted has not been publicly identified in any document held by the Department of the Prime Minister and Cabinet, as established by the FOI process examined in this document.
Part Two: The Proclamation
2.1 The Document
The Proclamation of King Charles III is dated 11 September 2022, three days after the death of Queen Elizabeth II on 8 September 2022. It was produced by the Department of the Prime Minister and Cabinet and is available on the PM&C website.
The operative text of the Proclamation reads:
“We, therefore, General the Honourable David Hurley AC DSC (Retd), Governor-General of the Commonwealth of Australia, and members of the Federal Executive Council, do now proclaim Prince Charles Philip Arthur George to be King Charles the Third, by the Grace of God King of Australia and his other Realms and Territories, Head of the Commonwealth, and, with hearty and humble affection, we promise him faith and obedience.”
The document is signed “David Hurley, Governor-General” and countersigned “Anthony Albanese, Prime Minister.”
2.2 What the Proclamation Does Not Contain
The Proclamation does not cite any enabling instrument. It does not cite any Act of Parliament. It does not cite any section of the Commonwealth of Australia Constitution Act 1900 (UK). It does not identify the head of power under which it is made. It does not identify the legal mechanism by which the Governor-General is authorised to make such a Proclamation.
A Proclamation of constitutional significance, establishing the identity of the Head of State of Australia, contains no reference to the constitutional instrument under which it is made.
2.3 The Seal
The Proclamation bears a circular printed notation “L.S.” in the position where a seal would be affixed. “L.S.” is the abbreviation of locus sigilli, Latin for “the place of the seal.” It indicates where a seal should be affixed. It is not the seal itself.
The Australian Symbols Booklet provided by the Department as Document 3 in this FOI states on page 21: “The authenticity of some agreements made by the Commonwealth Government is shown when the Great Seal of Australia is embossed into those official documents.”
The Proclamation does not bear an embossed Great Seal. By the Department’s own description in its own document, the Proclamation as provided has not been authenticated in the manner described for official documents bearing the Great Seal.
2.4 The Signatories
The internal review decision describes the Proclamation as signed by “His Excellency, General the Honourable David John Hurley AC DSC (Retd), Governor-General of the Commonwealth of Australia” and “the Honourable Anthony Albanese, the Prime Minister of Australia.”
The document itself is signed “David Hurley, Governor-General” and “Anthony Albanese, Prime Minister.” The Department’s description of the signatories is more formal than the document itself. The full legal name of the Prime Minister, Anthony Norman Albanese, does not appear on the document.
Part Three: The Government Publications
3.1 The Multiplicity of Titles
In the course of this FOI process, the following government publications bearing constitutional content have been identified, each under a different title:
“Australian Constitution” – the Department of the Prime Minister and Cabinet publication.
“The Constitution” – the Attorney-General’s Department and Office of Legislative Drafting publication, printed 1 January 2012, registered on the Federal Register of Legislation as C2005Q00193 (since removed).
“Australia’s Constitution” – the Parliamentary Education Office and Australian Government Solicitor publication, dated November 2022, provided as Document 2 in the FOI response.
“The Constitution of Australia” – the Parliament of Australia website version, referenced in the internal review decision.
None of these titles appears in the Commonwealth of Australia Constitution Act 1900 (UK). The Federal Register of Legislation lists the founding instrument under its correct title: “Commonwealth of Australia Constitution Act.” The UK Parliament in the Australian Constitution (Public Record Copy) Act 1990 refers to the same instrument as the “Commonwealth of Australia Constitution Act 1900.”
Four government publications, four different titles, none matching the instrument on the register.
3.2 The Registered Booklet
As established by a Wayback Machine archive of the Federal Register of Legislation dated 19 April 2021, the register carried two instruments simultaneously under the “Constitution / In Force” category:
Commonwealth of Australia Constitution Act, register identifier C2013Q00005 C06, listed as “as amended.”
The Constitution, register identifier C2005Q00193, listed as “as amended.”
The second entry resolved to the 2012 printed booklet with ISBN 978 1 921730 20 7, published by the Commonwealth of Australia and prepared by the Office of Legislative Drafting and the Attorney-General’s Department.
A direct query of the live Federal Register of Legislation for identifier C2005Q00193 now returns: “A title matching the Register ID C2005Q00193 was not found.”
A printed booklet with an ISBN number was registered as a constitutional instrument, listed as “in force,” and has since been silently removed from the register without any repeal record, consolidation notice, or public explanation.
3.3 The Covering Clauses
The AGS Overview in the “Australia’s Constitution” publication provided as Document 2 describes the covering clauses of the Imperial Act as containing “mainly introductory, explanatory and consequential provisions.” This characterisation does not distinguish between covering clauses that are introductory and those that are operative. Covering Clause 2, which grounds the extension of the Constitution to successive sovereigns and is directly at issue in Question 3 of this FOI, is an operative provision. Its characterisation as mainly explanatory is not consistent with its legal function.
The same Overview presents the covering clauses structurally as sub-items of a section headed “THE CONSTITUTION,” implying they are part of the Constitution in section 9 when they are provisions of the surrounding Imperial Act.
Part Four: The Great Seal
4.1 The Royal Warrant of 19 October 1973
Page 22 of the Australian Symbols Booklet provided by the Department reproduces the Royal Warrant of 19 October 1973, by which Queen Elizabeth II granted the current Great Seal of Australia. The operative text of the Warrant reads:
“TO Our Governor-General of Australia. WITH THIS you will receive a Great Seal prepared by Our Order for the use of Our Government of Australia.”
The Seal was granted for “the use of Our Government of Australia.” This is the post-1973 vocabulary. The preceding Great Seal, granted by Royal Warrant of 16 February 1954, was for the Government of the Commonwealth of Australia. The 1973 Warrant directed that the 1954 Seal be defaced. The current Seal is therefore the Seal of the Government of Australia, not the Seal of the Government of the Commonwealth of Australia as constituted under the Imperial Act.
4.2 Significance
The Great Seal is the instrument of authentication for official documents of the highest constitutional significance. The current Great Seal was granted in October 1973, at the same time as the vocabulary substitution and in the same year as the Royal Style and Titles Act 1973. The Seal itself therefore bears the vocabulary of the post-1973 framework. A Proclamation of a Head of State made under this Seal, or under a document bearing only its placeholder notation, is authenticated by an instrument whose own constitutional grounding carries the same unresolved questions as the vocabulary substitution of which it forms part.
Part Five: The FOI Process and Its Findings
5.1 The Three Questions
The FOI request FOI/2024/260 asked three specific constitutional questions:
Question 1: The instrument for the establishment of the proclaimed King of Australia for which the title relies on.
Question 2: The head of power that the title relies on.
Question 3: The information that demonstrates the proclaimed King of Australia conforms to the meaning of “in the sovereignty of the United Kingdom” expressed in the second clause prefacing the Commonwealth of Australia Constitution proper.
5.2 The Three Documents Provided
The Department provided three documents across the original decision and internal review:
Document 1: The Proclamation dated 11 September 2022.
Document 2: A government publication about the Constitution, provided via a link to the Parliament of Australia website.
Document 3: Pages 21 and 22 of the Australian Symbols Booklet, concerning the Great Seal.
5.3 The Analysis of Each Response
As to Question 1: The Proclamation is the exercise of the power, not the instrument establishing it. A question asking for the instrument on which a title relies is not answered by producing the document that exercises that title. The enabling instrument for the Proclamation is the Royal Style and Titles Act 1973 (Cth). That Act was not provided and is not mentioned in any of the three documents.
As to Question 2: No document identifying a head of power was provided. The constitutional publication provided as Document 2 does not identify any section of the Commonwealth of Australia Constitution Act 1900 (UK) as the basis for the Proclamation or the Royal Style and Titles Act 1973 (Cth). No section number appears anywhere in the three documents in relation to the specific act being questioned.
As to Question 3: The Australian Symbols Booklet provided as Document 3 does not address Covering Clause 2 or the phrase “in the sovereignty of the United Kingdom.” It addresses the history and use of the Great Seal. The Royal Warrant reproduced on page 22 is dated 19 October 1973 and uses the vocabulary “Our Government of Australia” rather than the constitutional vocabulary of the founding instrument.
5.4 The Determinative Finding
The internal review decision, signed by Andrew Walter, First Assistant Secretary, Government Division, Department of the Prime Minister and Cabinet, on 30 January 2025, contains the following statement:
“the Proclamation document referred to in the original access decision is the only official instrument for the establishment of the King of Australia and is the document held by the Department which meets the terms of your request.”
This statement establishes on the formal record, by a senior officer of the responsible Department following a full document search and internal review, that:
The Proclamation is the only official instrument establishing the title “King of Australia.”
The Department holds no document identifying the head of power for that title.
The Department holds no document demonstrating conformity of the title with Covering Clause 2 of the Commonwealth of Australia Constitution Act 1900 (UK).
5.5 The Timeline
7 August 2024: FOI request lodged.
6 September 2024: Original decision due. First extension sought and granted.
13 September 2024: Extended due date. Second extension sought and granted.
18 September 2024: Original decision issued. Three documents provided.
19 September 2024: Jillian responds with four specific clarifying questions. This response later disappears from the Right to Know public record.
18 October 2024: Internal review window closes. Department has not answered the clarifying questions.
22 November 2024: Internal review request filed.
Department response: Internal review noted as out of time, accepted nonetheless. Decision proposed by 31 January 2025.
23 December 2024: Jillian formally notes the disappearance of the 19 September correspondence from the public record, quotes it in full, and accepts the proposed timeframe.
30 January 2025: Internal review decision issued, affirming original decision.
Total elapsed time from request to final decision: 176 days.
Part Six: The Constitutional Questions That Remain Unanswered
The FOI process has exhausted the Department’s internal record. The following constitutional questions are now formally on the public record as having received no documentary answer from the responsible Department:
First: Under which specific section of the Commonwealth of Australia Constitution Act 1900 (UK) was the Royal Style and Titles Act 1973 (Cth) enacted?
Second: Is the title “King of Australia” as created by the Royal Style and Titles Act 1973 (Cth) the same thing as succession to the sovereignty of the United Kingdom referred to in Covering Clause 2 of the Imperial Act, and if so, on what basis?
Third: Does the Proclamation as provided, bearing a printed “L.S.” rather than an embossed Great Seal, constitute a formally authenticated document by the Department’s own description of how official documents are authenticated?
Fourth: What is the constitutional basis for the Great Seal of Australia bearing the description “for the use of Our Government of Australia” rather than “the Government of the Commonwealth of Australia,” given that the substitution was made by Royal Warrant in 1973 without referendum under section 128?
Fifth: Why does the Federal Register of Legislation no longer carry the entry C2005Q00193, previously listed as “The Constitution” and “in force,” and by what instrument or administrative decision was it removed?
Conclusion
The Commonwealth of Australia was constituted by an Act of the Imperial Parliament in 1900. That Act has been altered by referendum on eight occasions, the most recent in 1977. Its covering clauses, including Covering Clause 2, which grounds the extension of the Constitution to successive sovereigns, remain unamended.
The Proclamation of King Charles III as “King of Australia” was made on 11 September 2022. It cites no head of power. It cites no enabling legislation. It bears no embossed Great Seal. It was signed with shortened names and titles. The Department of the Prime Minister and Cabinet, after a search of its records and an internal review conducted by a First Assistant Secretary, has confirmed that this Proclamation is the only official instrument for the establishment of the King of Australia, and that it holds no document identifying the head of power for the title or demonstrating its conformity with Covering Clause 2 of the founding instrument.
The constitutional basis for the title “King of Australia” is not recorded in any document held by the Department responsible for that title.
The question asked by this FOI is the question the Constitution itself asks through Covering Clause 2. It has not been answered.
Ignorantia juris non excusat. Quod non est in actis non est in mundo.
Ignorance of the law is no excuse. What is not in the record does not exist in the world.
The record is now complete. The questions remain open.
All facts in this document are drawn from primary sources available for independent verification: the Federal Register of Legislation (legislation.gov.au), the Wayback Machine archives of that register, the FOI correspondence record at righttoknow.org.au (FOI/2024/260), the Commonwealth of Australia Constitution Act 1900 (UK), the Proclamation of King Charles III dated 11 September 2022, the Australian Symbols Booklet published by the Department of the Prime Minister and Cabinet, and the Royal Warrant of 19 October 1973 reproduced in that Booklet.
Without Prejudice – All Rights Reserved – Without Recourse
Example inclusion for correspondence:
Identification of the Founding Instrument
For the purposes of this communication and all matters arising from or relating to it, the undersigned identifies and relies upon the Commonwealth of Australia Constitution Act 1900 (UK), being an Act of the Imperial Parliament of the United Kingdom, which received Royal Assent on 9 July 1900, and which is recorded on the Federal Register of Legislation under identifier C2013Q00005 C06. That instrument is referred to in this and all related documents as “the founding instrument.”
The founding instrument comprises, in its complete form, the Preamble, covering clauses 1 through 9, and the Constitution of the Commonwealth as set out in section 9 of the Act, together with all alterations made by referendum under section 128, the most recent being the alterations of 29 July 1977. The founding instrument is available on the Federal Register of Legislation at legislation.gov.au and on the UK Parliamentary record.
The undersigned expressly does not rely upon, and does not accept as a complete or authoritative representation of the founding instrument, any of the following publications or documents, to the extent that they differ from, omit, or mischaracterise any provision of the founding instrument in its complete form:
the publication titled “Australian Constitution,” produced by the Department of the Prime Minister and Cabinet;
the publication titled “The Constitution,” printed 1 January 2012, produced by the Office of Legislative Drafting and the Attorney-General’s Department, previously registered on the Federal Register of Legislation as C2005Q00193 and since removed from that register without recorded repeal or public notice;
the publication titled “Australia’s Constitution,” produced by the Parliamentary Education Office and the Australian Government Solicitor, dated November 2022;
the publication titled “The Constitution of Australia,” available on the Parliament of Australia website; or
any other government publication, reprint, compilation, or summary that presents selected text under a title that does not appear in the founding instrument itself, or that presents the covering clauses as other than operative numbered sections of the same Imperial Act that contains the constitutional text in section 9.
None of the above publications carries the title of the founding instrument. None is a registered legislative instrument. None was enacted by the Imperial Parliament. None has been altered by referendum under section 128. The Federal Register of Legislation, the government’s own authoritative legislative register managed by the Office of Parliamentary Counsel, records the founding instrument under the title “Commonwealth of Australia Constitution Act,” consistent with the short title given in Covering Clause 1 of the Act itself and with the title used by the Parliament of the United Kingdom in the Australian Constitution (Public Record Copy) Act 1990.
For the avoidance of any doubt in this or any related matter, the following provisions of the founding instrument are expressly identified as operative and relied upon:
Covering Clause 1, which gives the Act its short title as the Commonwealth of Australia Constitution Act.
Covering Clause 2, which provides that the provisions of the Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.
Covering Clause 3, which records and gives effect to the compact of the people of the colonies to unite in a Federal Commonwealth.
Covering Clause 5, which provides that the 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.
Covering Clause 6, which defines “The Commonwealth” as the Commonwealth of Australia as established under the Act, and “The States” as the colonies admitted into or established under the Commonwealth.
Section 128, which provides the only mechanism by which the Constitution may be altered, requiring the approval of the people by referendum.
Any agency, officer, tribunal, court, or other body engaging with this matter is placed on notice that references in any communication to “the Constitution,” “the Australian Constitution,” “Australia’s Constitution,” or any similar description, without further identification by the register identifier C2013Q00005 C06 or by the full title “Commonwealth of Australia Constitution Act 1900 (UK),” will be understood by the undersigned as a reference to the founding instrument in its complete form as described above, and not as a reference to any government publication bearing a different title.
Where any agency or officer purports to ground an authority, power, or obligation in “the Constitution” or any similar description, the undersigned requires identification of the specific clause or section of the founding instrument relied upon, by clause or section number, together with the chain of instruments by which that provision is said to ground the specific authority, power, or obligation in question. A general reference to a government publication is not an identification of a head of power and will not be accepted as such.
All rights arising from the Commonwealth of Australia Constitution Act 1900 (UK) in its complete form, including the Preamble, all covering clauses, and the Constitution in section 9, as lawfully altered by the people of the Commonwealth by referendum under section 128 on the following occasions: Constitution Alteration (Senate Elections) 1906, Constitution Alteration (State Debts) 1909, Constitution Alteration (State Debts) 1928, Constitution Alteration (Social Services) 1946, Constitution Alteration (Aboriginals) 1967, Constitution Alteration (Senate Casual Vacancies) 1977, Constitution Alteration (Retirement of Judges) 1977, and Constitution Alteration (Referendums) 1977, are expressly reserved. No alteration beyond those made by the people through the mechanism provided in section 128 is recognised or accepted by the undersigned as forming part of the founding instrument.
Nemo dat quod non habet. No one gives what they do not have. An agency that cannot identify the provision of the founding instrument that grounds its authority does not thereby possess that authority.
By: ________________________ John Henry, of the family Doe
Without Prejudice – All Rights Reserved – Without Recourse
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