Proposed – Federation Continuity Act

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(Proposed framework draft — capable of enactment by the Commonwealth and the States)

Preamble (Proposed Framing)

WHEREAS the constitutional system of Australia operates in practice as a democracy united under an Australian Crown, as expressed through the Crown in right of the Commonwealth and the Crown in right of the States;

AND WHEREAS the Crown in right of the Commonwealth and the Crown in right of the States are presently unified in practice by the concurrent occupation of the office of Head of State by the same natural person, thereby providing a single Head of State across the Australian Federation;

AND WHEREAS the office of Head of State is represented within the Australian Federation by the Governor-General of the Commonwealth and the Governors of the States;

AND WHEREAS the allocation of constitutional responsibility between the Commonwealth and the States has developed over time through the Constitution, statute, convention, and interpretation by the High Court of Australia;

AND WHEREAS it is contemplated that legislation in substantially similar terms to this Act may be enacted by the Parliament of the Commonwealth and by the Parliaments of the States, in order to reflect a shared and cooperative approach to matters affecting the Federation;

AND WHEREAS it is desirable, in the interests of constitutional stability and federal cohesion, that any future consideration of changes affecting the office of Head of State proceed in a manner that preserves legal continuity and the unity of the Federation;

IT IS THEREFORE DECLARED as follows:

Section 1 — Short title and application

  1. This Act may be cited as the Federation Continuity Act.
  2. This Act is intended to be capable of enactment by the Parliament of the Commonwealth and by the Parliaments of the States.

Section 3 — Recognition of existing constitutional arrangements

  1. References in this Act to the Crown are references to the Crown as it operates in relation to the Commonwealth and in relation to the States, in accordance with the Constitution and constitutional practice.
  2. Nothing in this Act is intended to assert or determine whether the Crown in Australia is federal or divisible in nature.
  3. Questions concerning the allocation of constitutional responsibility between the Commonwealth and the States are determined in accordance with the Constitution as interpreted from time to time by the High Court of Australia.

Section 4 — Representation of the Head of State

  1. Within the Australian Federation, the office of Head of State is represented by:
    (a) the Governor-General of the Commonwealth; and
    (b) the Governors of the States.
  2. These offices together reflect the established vice-regal representation of the Head of State within the Commonwealth and the States.
  3. Nothing in this section is intended to affect the powers, functions, or conventions governing those offices.

Section 5 — Principle of federal coordination

  1. Although the Crown operates in distinct legal capacities in relation to the Commonwealth and the States, Australia’s constitutional arrangements have proceeded on the basis that the office of Head of State is occupied by a single natural person across the Federation.
  2. In considering changes affecting the office of Head of State, regard should be had to their implications for the Commonwealth and the States as a whole.
  3. This section is declaratory of constitutional practice and does not of itself give rise to legal rights or obligations.

Section 6 — Principle of continuity

  1. In considering any change affecting the person occupying the office of Head of State, it is desirable that such consideration proceed on the basis that there is to be no disruption to the validity or operation of any existing law, instrument, or obligation, and that legal authority is to be taken as continuing without interruption.
  2. It is further desirable that the rights, powers, and obligations exercised in right of the Commonwealth and in right of the States be taken as continuing in effect.
  3. Any such change should be approached on the basis that continuity of the constitutional and legal order is to be maintained, notwithstanding the nature or extent of the change.
  4. In considering such changes, regard should also be had to the importance of maintaining a coherent and broadly consistent form for the office of Head of State across the Commonwealth and the States.

Section 7 — Declaratory character of this Act

  1. This Act is declaratory in nature.
  2. This Act does not attempt to amend the Constitution.
  3. This Act does not prescribe, require, or preclude any particular constitutional outcome.
  4. This Act does not limit the legislative competence of the Commonwealth or of any State.
  5. This Act is intended to provide a framework for consideration and coordination, and not to give rise to legal rights or obligations.

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