What Every Australian Should Know
Introduction
Most Australians assume there is one Constitution. They assume it is the document available from the government, that it is complete, that it accurately represents the founding instrument of the Commonwealth, and that when a government agency points to “the Constitution” in answer to a constitutional question, it is pointing to that one document.
Each of those assumptions deserves examination.
This article documents a sequence of verifiable facts drawn from the Federal Register of Legislation, the Wayback Machine archive, the UK Parliamentary record, and the text of the founding Imperial Act itself. No claim in this article is based on inference or theory. Every finding is supported by primary source material that any reader can verify.
What those facts reveal is that for a period of at least several years, the government’s own authoritative legislative register carried two separate instruments simultaneously, both listed as “in force,” both described as the constitution of the Commonwealth. One was the founding Imperial Act. The other was a printed booklet with an ISBN number. The booklet has since been silently removed from the register without public notice, repeal record, or explanation.
The founding Imperial Act has never been repealed.
Part One: 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 both the Australian and UK legislative records, is:
Commonwealth of Australia Constitution Act 1900 (UK)
It is an Imperial Act. It was enacted at Westminster. It is not an Act of the Commonwealth Parliament. The Commonwealth Parliament did not exist when the Act was passed. It could not have enacted the instrument that created it.
The structure of the Act is frequently misunderstood and the misunderstanding has practical consequences. The Act has two distinct components.
The first component is nine covering clauses, numbered 1 through 9, which are provisions of the Imperial Act itself. These are not a preamble. They are not introductory matter. They are operative sections of the Act, enacted by the Imperial Parliament, carrying legal effect independently of what follows.
The second component is the Constitution proper, 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 covering the Parliament, the Executive Government, the Judicature, Finance and Trade, the States, New States, Miscellaneous provisions, and the alteration mechanism in section 128.
The covering clauses above section 9 include provisions that are among the most significant in the entire instrument:
Covering Clause 1 gives the Act its short title: Commonwealth of Australia Constitution Act.
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 of federation. It is the provision under which the people of the colonies agreed, by referendum, to unite in a Federal Commonwealth.
Covering Clause 4 sets the commencement of the Act.
Covering Clause 5 establishes the operation of the Constitution and laws of the Commonwealth as binding throughout the Commonwealth.
Covering Clause 6 provides definitions. It defines “The Commonwealth” as the Commonwealth of Australia as established under the Act. It defines “The States” as the colonies admitted into or established under the Commonwealth. It defines “Original States.” These definitions are operative. They are not illustrative.
Covering Clause 9 is the provision that introduces the Constitution text itself.
The Preamble, which sits above even the covering clauses, 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 under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.
None of those covering clauses or the Preamble are in section 9. They are provisions and recitals of the Imperial Act that contains section 9. A document that presents only the section 9 text is presenting less than half the operative content of the founding instrument in terms of the provisions that define what the Commonwealth is, who it binds, and on whose authority it was established.
Part Two: The Constitution That Could Be Altered Only by the People
Section 128 of the Constitution, contained within section 9 of the Imperial Act, sets out the only mechanism by which the Constitution may be altered. A proposed law to alter the Constitution must be passed by an absolute majority of each House of the Parliament, or under certain conditions by one House twice, and must then be submitted to the electors. It must be approved by a majority of all electors voting and by a majority of electors in a majority of the States. The Governor-General then presents the proposed law for Royal Assent.
This mechanism is not a procedural technicality. It is the foundational constraint that distinguishes the Constitution from ordinary legislation. Parliament can pass or repeal ordinary legislation by simple majority. Parliament cannot alter the Constitution without the people’s approval. That distinction is the difference between a constitutional system and a parliamentary supremacy system.
The Constitution has been submitted to referendum 44 times since Federation. It has been altered on eight occasions, the most recent being the four referendum questions passed on 21 May 1977. The last registered amendment on the Federal Register of Legislation is dated 29 July 1977, reflecting the formal registration of those amendments.
Since 1977, no referendum has altered the Constitution. This is a verifiable fact on the register’s own record.
Part Three: The Vocabulary Substitution of 1973
In the early 1970s, a series of administrative and legislative steps progressively replaced the constitutional vocabulary of “Commonwealth” with “Australian Government” across government usage.
On 1 July 1970, the Australian Government Publishing Service was established. From that point, official government publications began substituting “Australian Government” for “Commonwealth of Australia” in various contexts.
The Statute Law Revision Act 1973 (No. 216 of 1973), operative 31 December 1973, made systematic substitutions of “Australian Government” for “Commonwealth” throughout the statute book where the reference was to the government rather than the constitutional entity.
The Acts Interpretation Act 1973 (Cth) 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.
These changes were made by ordinary legislation. They were not submitted to referendum under section 128. The Constitution itself was not altered. The covering clauses were not altered. Covering Clause 6’s definition of “The Commonwealth” was not altered. What changed was the vocabulary used in government publications and statutes, applied by Acts of Parliament rather than by the people through the mechanism the Constitution itself requires for any alteration to its terms.
Two referendums were subsequently held that touched on related questions of constitutional structure: in 1974 and again in 1988, proposals for constitutional recognition of local government were put to the people. Both failed. The people did not approve those alterations.
The vocabulary substitution of 1973 therefore occurred without the approval mechanism that the Constitution requires for its own alteration, and the subsequent attempts to obtain popular approval for related constitutional changes were rejected.
Part Four: The Government Publication Called “Australian Constitution”
The Department of the Prime Minister and Cabinet produces and distributes a publication titled “Australian Constitution.” This is the document most Australians encounter when they seek to read the Constitution. It is available in print, distributed to schools, and provided by government agencies in response to constitutional questions.
The title “Australian Constitution” does not appear in the Commonwealth of Australia Constitution Act 1900 (UK). It does not appear in the Preamble. It does not appear in any of the nine covering clauses. It does not appear in any section of the Constitution contained in section 9. The title was adopted for the PM&C publication. It is a publication title, not a legal title.
The covering clauses of the Imperial Act are treated inconsistently in different editions of the PM&C publication. In some editions they are absent from the main text. In others they appear in a preliminary section that is visually and structurally separated from “The Constitution” that follows. The effect, whatever the intention, is that a reader of the PM&C publication does not receive the covering clauses as integral numbered sections of the same Act that contains the constitutional text. They are presented as something separate from, or preliminary to, “the Constitution,” when in law they are provisions of the same Imperial Act on equal structural footing with everything that follows.
The Attorney-General’s Department’s own Overview, included in associated publications, characterises the covering clauses as containing “explanatory and consequential provisions.” That characterisation is not consistent with the legal effect of Covering Clause 2 (binding force on courts, judges and people), Covering Clause 3 (the compact of federation), or Covering Clause 6 (the operative definitions of “The Commonwealth” and “The States”). Those are not explanatory provisions. They are operative ones.
The Federal Register of Legislation, the government’s own authoritative legislative register managed by the Office of Parliamentary Counsel, lists the founding instrument under the title Commonwealth of Australia Constitution Act, not “Australian Constitution.” The title used in the PM&C publication does not match the title on the government’s own legislative register for the same instrument.
Part Five: Two Constitutions on the Register
This is where the documented record becomes particularly significant.
The Federal Register of Legislation maintains a category for constitutional instruments. A Wayback Machine archive of the register’s “Browse by Title / Constitution / In Force” page, captured on 19 April 2021, shows that page returning two separate instruments, both listed as currently in force:
First entry:
- Title: Commonwealth of Australia Constitution Act
- Register identifier: C2013Q00005
- Status: as amended (C2013Q00005 C06)
Second entry:
- Title: The Constitution
- Register identifier: C2005Q00193
- Status: as amended
These are not the same instrument. They carry different titles and different register identifiers. Both were listed as “in force” simultaneously on the government’s authoritative legislative register.
A further Wayback Machine capture dated 20 April 2021, following the link for C2005Q00193, reveals what that second entry actually is.
Part Six: What C2005Q00193 Actually Was
The archived detail page for C2005Q00193 reveals a document with the following characteristics:
Title on register: The Constitution
Description: “Printed on 1 January 2012 together with Proclamation Declaring the Establishment of the Commonwealth, Letters Patent Relating to the Office of Governor-General, Statute of Westminster Adoption Act, Australia Act 1986, with Overview, Notes and Index by the Attorney-General’s Department and Australian Government Solicitor. Prepared by the Office of Legislative Drafting and Attorney-General’s Department, Canberra.”
Publisher: Commonwealth of Australia
Copyright: Commonwealth of Australia 2012
ISBN: 978 1 921730 20 7
NLA catalogue entry: “The Constitution as in force on 1 January 2012 together with proclamation [of] the Commonwealth, letters patent relating to the Office of Governor-General, Statute of Westminster Adoption Act 1942, Australia Act 1986.”
NLA Dewey classification: 342.94 (Australian constitutional law)
Overview language throughout: “the Australian Constitution”
This is a printed booklet. It has an ISBN number. It was published by the Commonwealth of Australia in 2012. It was prepared by the Office of Legislative Drafting and the Attorney-General’s Department. It includes an Overview written by the Attorney-General’s Department and the Australian Government Solicitor. Its National Library catalogue entry classifies it as a book.
The Commonwealth of Australia Constitution Act 1900 (UK) does not have an ISBN. It has an Act number. It was enacted by the Imperial Parliament in 1900. It was not printed in 2012. It was not prepared by the Office of Legislative Drafting. It does not require preparation by any Australian government department because it is an Act of the Imperial Parliament.
A printed government booklet with an ISBN number was registered on the Federal Register of Legislation, the authoritative legislative register of the Commonwealth, as a constitutional instrument. It was given a register identifier. It was listed as “in force.” It was listed as “as amended.” It appeared alongside the actual Imperial Act in the “Constitution / In Force” category of the register.
The booklet also bundles the Australia Act 1986 into the same registered entry as “The Constitution.” The Australia Act 1986 is a statute of the Commonwealth Parliament. It is not part of the Commonwealth of Australia Constitution Act 1900 (UK). Presenting these as a single registered instrument titled “The Constitution” conflates the founding Imperial Act with subsequent legislation enacted by the Parliament the Constitution itself created.
Part Seven: The Silent Removal
C2005Q00193, the registered booklet listed as “in force” as recently as April 2021, no longer exists on the Federal Register of Legislation.
A search for C2005Q00193 on current website
A direct query of the live register for identifier C2005Q00193 returns the following response in the register’s own words:
“A title matching the Register ID C2005Q00193 was not found.”
The register does not record that instrument as repealed. It does not record a consolidation into another entry. It does not record an expiry, a transfer, or any administrative action. It returns no record at all. The identifier is not recognised.
See the Wayback Machine record of 20 April 2021 (opens in new tab).
See current page (not found): https://www.legislation.gov.au/Details/C2005Q00193 (opens in new tab, but will be page not found error)
An instrument listed as “in force” on the government’s authoritative legislative register, described as “The Constitution” and classified as a constitutional instrument, has been removed from that register without any apparent public notice, without a repeal instrument, and without any entry on the register recording what happened to it.
This is not a minor administrative matter. The register is described by the Office of Parliamentary Counsel as “the authoritative whole-of-government website for Commonwealth legislation and related documents” containing “the full text and details of the lifecycle of individual laws.” If an instrument listed as “in force” can be removed without a recorded lifecycle event explaining its removal, the register’s own description of its function is not being met for that instrument.
Part Eight: The UK Record
An additional piece of evidence situates the founding instrument in its international context.
In 1990, the Parliament of the United Kingdom passed the Australian Constitution (Public Record Copy) Act 1990. That Act, available on the UK legislation register, provides that the copy of the Commonwealth of Australia Constitution Act 1900 which was on loan to the Commonwealth of Australia shall cease to be included in the public records to which the Public Records Act 1958 applies.
The UK Parliament, in 1990, referred to the founding instrument by its correct title: Commonwealth of Australia Constitution Act 1900. Not “Australian Constitution.” Not “The Constitution.” The correct Imperial title, in a 1990 UK Act specifically about the physical document.
The international record has never adopted the “Australian Constitution” nomenclature for the founding instrument. The Australian government’s own legislative register uses the correct title. The PM&C publication uses a different title. The booklet registered as C2005Q00193 used yet another title. None of the variant titles are the title of the founding instrument.
Part Nine: What This Means in Practice
This sequence of facts has practical consequences wherever a question of constitutional authority arises.
When a government agency points to “the Constitution” in answer to a constitutional question, it has not identified which document it means. At the time C2005Q00193 was on the register, there were two instruments listed as “in force” under that category. The agency has not identified which register entry it relies upon, and is likely providing a PM&C publication whose title matches neither entry.
When a court or tribunal is asked to consider a constitutional question, the complete text of the founding instrument is the Commonwealth of Australia Constitution Act 1900 (UK) in its full form, including the Preamble and all nine covering clauses. A party relying on the PM&C publication or the 2012 booklet as a complete representation of that instrument may be relying on a document that omits or marginalises operative provisions.
When a question of alteration arises, the only mechanism for altering the Constitution is section 128. The vocabulary substitution of 1973 was made by ordinary legislation. The registration of a 2012 booklet as a constitutional instrument on the legislative register was an administrative act. Neither is a referendum. Neither alters the text of the founding Imperial Act, which remains on the register in its 1977 form, unamended since the last referendum.
When a man or woman seeks to understand the framework under which government authority is exercised over them, they are entitled to be directed to the complete founding instrument, not to a 2012 booklet with an ISBN number that has since been silently removed from the register, and not to a PM&C publication bearing a title that appears nowhere in the founding Act.
Conclusion
There is one founding instrument of the Commonwealth of Australia. Its title is the Commonwealth of Australia Constitution Act 1900 (UK). It is an Imperial Act. It has nine covering clauses and a Preamble that are as much a part of the instrument as the constitutional text in section 9. It has been altered by referendum on eight occasions, the most recent in 1977. It has not been altered since.
For a period of at least several years, the government’s own authoritative legislative register listed alongside that founding instrument a second entry, a 2012 printed booklet with an ISBN number, registered as “The Constitution” and described as “in force.” That booklet characterised the covering clauses of the Imperial Act as merely explanatory and consequential, used vocabulary that post-dates the founding Act by seven decades, and bundled other statutes into the same registered entry as if they formed a single constitutional instrument.
That booklet has since been removed from the register without public notice or recorded lifecycle event.
Government agencies responding to constitutional questions by pointing to “the Constitution,” without specifying which document, which register entry, and which provisions they rely upon, are not answering the constitutional question. They are naming a category. The category currently contains one entry on the live register. Until recently it contained two. The one that has been removed was a booklet with an ISBN.
Australians asking constitutional questions are entitled to constitutional answers. A constitutional answer requires identifying the founding instrument by its correct title, the specific provisions relied upon by their clause numbers, and the basis on which those provisions are said to ground the authority in question.
That standard has not been consistently met. This article documents why it matters that it should be.
Fiat justitia ruat caelum. Let justice be done though the heavens fall.
All facts in this article are drawn from primary sources: the Federal Register of Legislation (legislation.gov.au), Wayback Machine archives of that register dated April 2021, the UK legislation register (legislation.gov.uk), and the text of the Commonwealth of Australia Constitution Act 1900 (UK) and the documents registered under identifiers C2013Q00005 and C2005Q00193. Readers are encouraged to verify each finding independently.
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