Two claims keep circulating about the founding of the Commonwealth. The first says the Crown answers to no one, because a clause binding it to the Constitution was quietly dropped before the document became law. The second says the Constitution itself is invalid, because the people voted on a draft that Parliament later changed before it was enacted.
Both claims start from something true. Both end up somewhere false. It's worth walking through each one carefully, because the pattern connecting them says more than either claim does on its own.
Part One: The Missing Clause,
Why "The Crown Has No Liability" Simply Doesn't Hold Up
.
In 1897, delegates gathered in Adelaide to draft a constitution for a nation that didn't yet exist. Among the clauses they wrote down was a short, unremarkable line, sitting second in the document, right after the short title:
.
"This Act shall bind the Crown, and its provisions referring to Her Majesty the Queen shall extend to Her Heirs and Successors in the Sovereignty of the United Kingdom of Great Britain and Ireland."
By the time the Constitution was finally enacted in 1900, that exact sentence was gone. It's true. Anyone who goes looking for it in the final Act won't find it in those words.
For a certain kind of reader, that missing sentence looks like a smoking gun. If the words "this Act shall bind the Crown" were deliberately dropped, doesn't that mean the drafters deliberately left the Crown and by extension, every minister, official, and agent who acts in its name outside the reach of the law? Doesn't it mean, in effect, that the Crown answers to no one?
It's a tidy story. It's also wrong, and it's wrong in a way that's worth understanding properly, because the mistake it makes is a common one.
The change happened before Federation even occurred during 1900, while the Bill was passing through the Imperial Parliament in London, not afterward in any Australian Parliament. And it traces back to the very same process as the far better-known fight over clause 74.
It starts on 15 March 1900, when the Australian delegates Barton, Deakin, Dickson, Kingston and Fysh had their first meeting in London with Chamberlain and the Crown Law Officers. Sir Richard Webster, the Attorney-General, opened by setting out the provisions the Crown Law Officers thought required discussion, explanation, and perhaps amendment. Soon after, a written memorandum from the Crown Law Office set out five suggested amendments, all confined to the covering clauses of the Bill. The headline one was clause 74, restricting Privy Council appeals the fight covered in full in Part Two. The second was clause 2:
.
In covering clause 2, the words "This Act shall bind the Crown" were proposed to be omitted, as involving an unnecessary interference with the prerogative.
.
That's the actual, stated reason, recorded at the time by Quick and Garran two men who were themselves at the heart of drafting the Constitution. It's a narrow, technical point of Crown prerogative doctrine a concern that a blunt statutory declaration might needlessly cut across powers the Crown already held sitting alongside three other equally technical proposals in the same memorandum, about British shipping jurisdiction, the Colonial Laws Validity Act, and where the Constitution should sit within the structure of the Act.
What happened next is the clearest evidence of how seriously the delegates did, or didn't, take this. Over the following two months they wrote detailed, forceful memoranda to the Colonial Office dated 23 March and 27 April fighting hard against the Colonial Laws Validity Act proposal and, above all, against any change to clause 74. Clause 2 isn't mentioned in either of them. Not a word of objection, not a passing reference. When Chamberlain formally introduced the amended Bill into the House of Commons on 14 May 1900, the record of what changed is precise: the words "and under the Constitution hereby established" were dropped from the preamble (reinstated prior to enactment), and in covering clause 2, the words "This Act shall bind the Crown" were omitted, with the clause reworded accordingly. It went into the Bill exactly as the Crown Law Officers had proposed, without a fight, because nobody on the Australian side considered it worth fighting over.
Here is where the pseudolaw argument does its real damage not in the historical claim, which is basically accurate, but in the leap it makes afterward. It quietly swaps one question for another and hopes nobody notices.
.
Question one: Does a particular statute's rules apply to the Crown as an institution can the Crown itself be required to hold a licence, pay a fee, comply with a regulation?
.
Question two: Can the individual people who act in the Crown's name, ministers, public servants, statutory bodies, agencies be held personally or corporately accountable for what they do?
.
These are not the same question, and Australian law has never treated them as the same question. A "binds the Crown" clause, when it appears in legislation, answers the first one. It has never, in the history of the doctrine, been understood to answer the second. Ministers who breach the law face judicial review of their decisions. Public officials who act corruptly or recklessly can be sued personally for misfeasance in public office. Crown servants who commit crimes are prosecuted like anyone else. None of that has ever depended on whether some other statute happened to contain the specific words "binds the Crown."
.
The High Court confirmed this Again in 2024
.
If this all sounds like abstract lawyerly hair splitting, consider a case that reached the High Court of Australia less than two years ago.
The Director of National Parks, a Commonwealth body responsible for Kakadu carried out construction work on a sacred site without the required permits, breaching the Northern Territory's Aboriginal Sacred Sites Act. When charged, the Director's defence was almost exactly the argument at issue here: as an arm of the Crown, it argued, it was shielded by a long-standing presumption that the Crown cannot be criminally prosecuted. A lower court agreed.
The High Court did not. Unanimously, five separate sets of reasons reaching the same conclusion, the Court held that this presumption is drawn extremely narrowly. It protects only the abstract "body politic" itself, the Commonwealth, a State, or a Territory as a legal fiction. It does not, and never has, extended to the servants, agents, or instrumentalities acting on the Crown's behalf. The people and bodies who actually do the government's work remain answerable to ordinary law, exactly as any other person or corporation would be.
.
Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16.
https://cso.nsw.gov.au/resources/legal-alerts-presentations-papers/criminal-liability-of-the-Crown.html
.
Upon reading the case, and the entire architecture of the "no liability" argument collapses. Even the genuine, centuries old Crown immunity doctrine, the real one, not the imagined one was never a blanket shield. It was always a narrow rule of statutory interpretation, confined to a legal abstraction, and the High Court went out of its way in 2024 to say so in the plainest possible terms.
So what does this means for the Missing Sentence?
So the sentence really was in the 1897 draft. It really isn't in the final Act. All of that checks out, its an established fact.
What doesn't check out is the conclusion drawn from it. A clause about whether ordinary statutes apply to the Crown as an institution was never the thing standing between a minister's misconduct and a courtroom. It was never the thing standing between a corrupt public servant and a lawsuit. The Constitution's real machinery of accountability, judicial review, misfeasance in public office, the ordinary criminal law, the High Court's own jurisdiction under section 75, runs on entirely separate tracks, and none of those tracks were ever wired through that one missing sentence.
The words were struck out when the Bill was introduced to the House of Commons on 14 May 1900, following advice from the Crown Law Officers, for a stated reason that had nothing to do with accountability a technical worry about the clause overreaching into territory the Crown's prerogative already covered. The Australian delegates, who fought two months of hard, detailed argument over other provisions, didn't raise a single objection to it. Not a quiet permission slip for the Crown to do as it pleased a point nobody in the room thought was worth contesting.
.
Part Two: The Amended Draft
Does a Late Change Invalidate the Constitution?
.
The second claim is clearly related to the first. It says: the people voted on a draft Constitution between 1898 and 1900. Before that draft became law, it was changed. Therefore, the argument runs, what was enacted was never actually put to the people, and without the people's direct assent to the final wording, the Constitution has no valid foundation.
Once again, the history checks out. The conclusion doesn't.
What Actually Happened in London?
Delegates from the Australian colonies spent 1897 and 1898 hammering out a draft Constitution at a series of conventions. That draft went to referendum in each colony between June 1899 and July 1900, and was approved by strong majorities. But a colonial referendum, at that point in history, wasn't the last step, it was the second to last one. The Constitution could only become law as an Act of the Imperial Parliament in London, because none of the Australian colonies had the standing, on their own, to legislate a new nation into existence.
So a delegation, Barton, Deakin, Dickson, Kingston, and Fysh carried the approved draft to Westminster, under a mandate to secure the Bill's passage without amendment. When the Crown Law Officers raised their proposed changes in March 1900, the delegates fought back hard, first in a memorandum of 23 March, then in a second, sharper one on 27 April, arguing at length that the Bill belonged to the Australian people in a way that made any alteration illegitimate. On 21 April, the colonial Premiers met in Melbourne and resolved even more bluntly than their delegates had: they stated plainly that they did not consider themselves as having authority to accept any amendments at all.
This is the honest version of events, and it's worth sitting with, because it's more interesting than a tidy story of cooperative negotiation. The Premiers weren't rubber stamping anything. They were refusing, on the record, to accept that anyone themselves included had the power to agree to changes to what the people had voted on.
The Imperial Government proceeded anyway. Chamberlain introduced the amended Bill into the House of Commons on 14 May 1900, with clause 74 rewritten to restrict the Privy Council appeal right further than the delegates wanted, along with the other changes described in Part One. That's the moment the "amendment happened over Australian objections" version of this story is actually true for a few weeks, it did.
What happened after that is the part usually left out. Once the Bill had already been introduced in its amended form, the delegates concluded their position had changed they now judged themselves authorised to negotiate the best available compromise, rather than continuing to insist on an unamended Bill that was no longer on the table. Chamberlain and the Crown Law Officers met with them repeatedly over the following weeks. A first compromise was offered on 19 May and accepted provisionally, subject to the delegates' governments agreeing. When the exact wording reached Australia, it was met with sharp criticism Sir Samuel Griffith in Queensland called the drafting clumsy, South Australia's Chief Justice called it dangerous and unauthorised, and Queensland's Premier threatened to demand a separate Act of his own Parliament's assent before accepting it. So it went back to the table.
A final compromise was reached on 16 June, with the Crown Law Officers, by Chamberlain's own account, expressly acknowledging Griffith's assistance in reaching it, producing the wording of clause 74 exactly as it stands in the Constitution today. This time, the colonies ratified it properly: telegrams from the governments of Victoria, Queensland, South Australia and Tasmania confirmed their agreement, and in New South Wales, the one colony whose Parliament happened to be sitting, the government put the question to both Houses, which passed resolutions accepting the amendment: the Legislative Assembly on 21 June, the Legislative Council on 27 June.
Only once that had happened did the Bill proceed through its remaining stages and receive Royal Assent, on 9 July 1900.
So the full picture is this: an initial, genuine refusal by the colonies to accept any amendment at all; the Imperial Parliament amending the Bill regardless; a subsequent negotiation the delegates judged themselves authorised to enter once the ground had shifted; a compromise that Australia itself rejected on first sight and forced back to the table; and a final version that was put to, and formally accepted by the colonial governments, including a sitting Parliament voting on it directly (NSW). That is a far more contested, and far more real, process than either "the delegates had no say" or "everyone simply agreed" would suggest. And it is, either way, nothing like a decision made unilaterally in London and imposed without Australian knowledge or consent.
Why the Referendum Wasn't the Source of the Constitution's Legal Force
Here is the load bearing mistake in the argument: it treats the 1899–1900 referenda as though they were themselves an act of law-making, so that any later change voids what "the people" supposedly enacted. But that isn't what a referendum was, or did, at that stage of Australian constitutional history.
The referenda were held under enabling Acts passed by each colonial Parliament, and their function was to test public support before the colonies asked Westminster to legislate, not to create binding law by popular vote. That's precisely what the Premiers themselves argued in April 1900, when they insisted the referenda gave the Bill a special status. But notice what they didn't argue: not one Australian government or delegate ever claimed the referenda made further legal process unnecessary , quite the opposite, their whole objection was that the Imperial Parliament still had to act, and they wanted it to act without changing anything. Even the Premiers' own resolution conceded, in so many words, that they were doing this "without disputing the constitutional power of the Imperial Parliament to amend the Bill on its own responsibility." The fight in 1900 was over whether Westminster should amend the Bill, not over whether it could. Legal force came from one place only: an Act of the United Kingdom Parliament, assented to by the Crown. That's not a technicality invented after the fact to paper over a flaw, the people making the argument at the time knew it too, which is exactly why they argued so hard for the Imperial Parliament to exercise that power in a particular way, rather than claiming it had no power to exercise at all.
The Rule Being Borrowed Didn't Exist Yet
There's a second problem with the argument, and it's a neat one: the standard it's holding the 1900 process to, that a constitutional change must be put to the people in its exact final wording, is section 128 of the Constitution itself. That section lays down how future amendments to the Constitution must be made. It didn't exist before the Constitution existed, and nothing in it purports to reach backward and govern the process that created it.
Put plainly: you cannot use a rule to invalidate the very document that first brought that rule into being. Section 128 governs what happens after 1901. The events of 1900 are simply outside its reach, logically as much as legally.
Even setting the logic aside, there's the weight of everything built on top of this since. Every Commonwealth Parliament, every High Court, every state and territory government, has operated for over 120 years on the basis that the Act assented to on 9 July 1900 is valid law. The Statute of Westminster Adoption Act 1942 and the Australia Act 1986 — the two later Acts that finally cut Australia's remaining constitutional ties to Britain — are both built on the premise that the 1900 Constitution they were amending was, and always had been, valid. Unwinding that premise now wouldn't just affect one clause; it would have to explain away 125 years of continuous legal practice that assumed otherwise, and no Australian court has ever found anything approaching a reason to do that.
In summary the people voted on a draft. The colonies initially refused to accept that anyone had authority to change it, and said so on the record. The Imperial Parliament amended it anyway, exercising a power nobody seriously disputed it had. The delegates then negotiated a real compromise, Australia rejected the first draft of that compromise, a second one was reached and put back to the colonies with one Parliament voting on it directly, and only then did the Bill become law. Nothing in that process broke a rule that existed at the time, and the rule being invoked now (s 128) wasn't written yet, because this document is what wrote it.
Line these two claims up next to each other and something becomes obvious: neither one is actually about the fact it starts with. The historical details in both cases are real, checkable, and not really in dispute. What does the work in each argument is a quiet substitution a few steps later, swapping "this word was removed" for "therefore no accountability exists," or swapping "this clause was changed" for "therefore the whole document is void." The history is a launching pad. The conclusion is where the argument actually lives, and the conclusion is where it fails.
That's worth naming plainly, because it's the same move sovereign-citizen and pseudolaw arguments make again and again, across completely different subject matter Magna Carta, legal tender, "flesh and blood" personhood, strawman theory, and these two. A true-sounding historical fragment, dressed up as though it were still doing legal work a century later, when the actual legal questions it touches have long since been settled through entirely different, well-documented channels: judicial review, the ordinary criminal law, misfeasance in public office, and as of May 2024 a unanimous High Court bench saying, in the plainest terms available, that none of this ever worked the way the argument needs it to.
It's also worth saying what the record does show, once you go looking for it properly. Both changes, clause 2 and section 74, trace back to the same proposal from the Crown Law Officers in March 1900, recorded in detail by John Quick and Robert Garran, two men who were themselves at the heart of drafting the Constitution. Nothing about any of it was hidden. The colonies refused outright, on the record, before eventually negotiating; the terms of that negotiation were rejected once and renegotiated; the final terms were put back to elected governments, and in one case to a sitting Parliament, for actual agreement. That's not what a cover-up looks like, it's what a properly documented, genuinely contested negotiation looks like, which is precisely why it's still possible to read the actual minutes of it a hundred and twenty-five years later.
In conclusion, Under the doctrine that governed colonial legislatures in 1900, no colony's Parliament had the legal competence to bind the Imperial Parliament to anything. (The stream cannot rise above its source) The Colonial Laws Validity Act 1865 (UK) is the key authority here, it confirmed colonial legislation had full effect within the colony, but only so long as it wasn't repugnant to Imperial legislation, and it rested on, rather than displaced, the underlying principle that ultimate sovereignty stayed at Westminster. A colonial Parliament could regulate its own colony; it had no power at all to constrain what a sovereign Imperial Parliament chose to do with a Bill once that Bill reached London. That's a one way relationship, Westminster could bind the colonies, the colonies could never bind Westminster.
So if an Enabling Act had actually purported to legally require the Imperial Parliament to pass the Bill without scrutiny or amendment, that provision would have been beyond the colonial legislature's power, ultra vires, and legally void to that extent, regardless of what it said on paper.
Sources: Quick, J and Garran, RR, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901), pp. 229–248; Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16.
