February 2012 e-brief 4/2012

The Amendment (Restoration of of Allegiance) Bill 2011: background and commentary by Gareth Griffith

1 Introduction in the event of the demise of the On 11 November 2011 the Crown. Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011 [the The Restoration of Oaths of Allegiance Restoration of Oaths of Allegiance Bill] Bill passed the Legislative Council was introduced in the Legislative without amendment and was sent to Council, sponsored by the Reverend the Assembly for concurrence on 24 the Hon Fred Nile. The Second November 2011. Reading speech for the Bill explained: The purpose of this e-brief is to set out The object of the bill is to amend the the background to the 2011 Bill and to Constitution Act 1902 to give a comment on its provisions. Brief member of the Legislative Council, comparison is also made with other the Legislative Assembly or the Australian jurisdictions. Executive Council the option of taking or making an or 2 The current position of allegiance to Her At present, ss 12 and 35CA of the Majesty Queen Elizabeth II, her NSW Constitution Act provide that heirs and successors as an both members of the NSW Parliament alternative to the pledge of loyalty to Australia and the people of New and members of the Executive Council South Wales. Taking the pledge of respectively must take a pledge of loyalty is currently required before a loyalty in the following form: member of Parliament can sit or vote and before a member of the Unto God, I pledge my loyalty to Executive Council can assume Australia and to the people of New office. South Wales.

It was also explained that: Note that, where an affirmation is made, the words "Unto God" may be This bill also makes it clear that a omitted. member of Parliament who has taken or made an oath or affirmation In respect to Members of Parliament of allegiance does not have to take only, s12(4) expressly states that: or make a further oath or affirmation

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A Member is not required, despite Parliament Act 1678, this time in any other Act or law, to swear response to the false allegations made allegiance to Her Majesty Queen by Titus Oates of a Catholic Elizabeth II or her heirs and conspiracy to assassinate Charles II. successors before sitting or voting in As revised in 1689 the oath of the Legislative Council or the allegiance was a declaration of fidelity Legislative Assembly. to the Sovereign in a recognisably In addition to taking the pledge of modern form: loyalty an Executive Councillor must I A.B. do sincerely promise and also take an oath or affirmation of 1 swear, That I will be faithful, and office, as set out in s 35CA(4). bear true Allegiance to Their Majesties King William and Queen 3 Historical note on the Mary, so help me God. parliamentary oath It is sometimes assumed that the By the Act of Succession 1701, after parliamentary is the French King had proclaimed the feudal in origin. That is not the case. son of James II to be the rightful heir to Its origins are in fact religious and the British , an oath of abjuration political, a product of: the Protestant was added, pledging support for the Reformation of the 16th century; the exclusion of the Stuarts and for the Civil War of the mid-17th century and of maintenance of the Protestant the Restoration of the Stuart monarchy succession. that followed; and of the succeeding "Glorious Revolution", which saw Each oath was therefore "directed Catholic James II replaced by against a specific perceived political Protestant William and Mary.2 threat" and, prior to 1831, had to be made before the Lord Steward before It seems that a specific oath for entering "the Parliament House".4 Members of the House of Commons was not required until 1563, in the form During the 19th century various of an oath of supremacy. Wilding and statutory exceptions were made, for Laundy describe this as: Catholics, Quakers, Moravians and Jews. For example, the Roman a repudiation of the spiritual or Catholic Relief Act 1829 provided for a ecclesiastical authority of any special oath deemed acceptable to foreign prince, person or prelate, Roman Catholics. But not until 1858 and of the doctrine that princes did a single parliamentary oath emerge deposed or excommunicated by the in place of the former three. By 1868 might be murdered by their this had been revised, shorn of its subjects.3 religious content, making it similar in

form and content (if not in origin) to the Following the Gunpowder Plot of 1605, feudal oath of allegiance.5 an oath of allegiance was introduced, but this was not strictly a While a specific right to make an "parliamentary" oath, as it was not affirmation was granted by statute to taken in Parliament. Only with the such groups as Catholics and Restoration of the monarchy were Quakers, a general right to make an oaths of supremacy and allegiance affirmation was not introduced until the imposed on Members of Parliament passing of the 1888. This and Peers, under the terms of the followed the controversy attending the

Page 2 of 15 E-Brief The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011: background and commentary election of the atheist Charles amendment to the section over the Bradlaugh to the House of Commons. next century was in 1936, to take account of the abdication of Edward 4 New South Wales VIII:

4.1 Before 2006 In this section the word demise shall include abdication. From the start of responsible 6 in 1856 until 2006, in 4.2 The Oaths and Crown order to sit and vote members of both References Bills 1993 and 1995 Houses of Parliament were required to take the oath of allegiance to the In 1993, and again when in Crown.7 Under s 33 of the Constitution government in 1995, Bob Carr Act of 1855, which included provision introduced Bills to amend the oath of for the demise of the sovereign, the allegiance. In Opposition, Carr oath was in this form: sponsored a Private Member's Bill – the Oaths and Crown References Bill I…do sincerely promise and swear 1993 – which, among other things, that I will be faithful and bear true sought to replace the existing oath of allegiance to Her Majesty Queen allegiance, which was described as an Victoria as lawful sovereign of the "anachronism",9 with an oath in the of Great Britain and form of a pledge of loyalty that Ireland and of this colony of New declared: South Wales dependent on and belonging to the said United Under God I pledge my loyalty to Kingdom. So help me God. Australia.

By s 34 of the same Act an affirmation Provision was also made for the could be made by "every person making of an affirmation, in these authorized by law to make an words: affirmation instead of taking an oath" I pledge my loyalty to Australia. After federation, when the NSW Constitution Act was revised in 1902, The 1993 Bill did not proceed beyond the requirement to take the oath of the Second Reading stage. In the first allegiance was continued under days of his Government, Carr section 12 of the Act, only now the introduced the Oaths and Crown form of the oath of allegiance was set References Bill 1995, which was in out in the Oaths Act 1900, as follows: similar terms.10 The Bill passed through the Assembly but stalled at the I…,do swear that I will be faithful First Reading stage in the Council.11 and bear true allegiance to Her The Second Reading speech Majesty Queen Victoria, Her Heirs described the changes proposed by and Successors according to law. the Bill as "symbolic rather than So help me God.8 constitutional in nature", but significant

nonetheless as focusing on "what it Section 12 of the Constitution Act means to be Australian". The oath of included provision for the making of an allegiance existing at the time was said affirmation, using the same from of to be "altogether inadequate as a words as the 1855 Act. Provision was definition of loyalty in Australia in the also made for the demise of the 1990s". It was further argued that the sovereign. The only substantive

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"concept of allegiance" implied in that to the people of New South Wales" oath was an "anachronism", to be was introduced. replaced by a pledge of loyalty. This legislation was initiated in the In the Second Reading speech a form of a Private Member's Bill, distinction was noted between the sponsored by Paul Lynch in the proposed pledge of loyalty, which Legislative Assembly, where it was would have applied to members of introduced on 6 May 2004 but not Parliament,12 and the proposed oaths debated and passed until 7 April 2005. of office taken by the Governor, On the same day the Bill received its Executive Councillors, judicial officers First Reading in the Legislative and police officers: Council, but again debate was delayed, with the Second Reading only the first refers to Australia, the latter occurring in early March 2006. The Bill to New South Wales: that is, one finally passed the Third Reading stage declares one's loyalty to Australia, in the Upper House without but one's service and duty is to the 13 amendment on 7 March 2006, 21 people of New South Wales. votes to 14.15

In respect to the Bill's proposed pledge Introducing the 2006 Bill in the of loyalty to "Australia", Twomey Assembly, Mr Lynch noted that, unlike commented on the jurisdictional the 1993 and 1995 Bills, the current differences that would have to be proposal made reference to "the resolved if the "Queen" or the "Crown" people of New South Wales and not were removed from our constitutional just to Australia". The pledge, it was system. According to Twomey: said, was neither:

In choosing "Australia", the monarchist nor republican: the government was concerned that the pledge is about democratic theory concept of "allegiance" is one that and about accepting that our real relates to a nation, but not to a sub- legitimacy comes from Australia and national entity. One reason for this is from the people of New South that allegiance involves reciprocal 16 Wales. duties, including a duty of protection

in matters such as defence, external The purpose of the Bill was said to affairs and citizenship, which is more relevant to the national level of replace a "largely meaningless" oath government. Further, "Australia" with a declaration expressing "where encompasses the as well as sovereignty actually resides". The the nation and the Queen. A Second Reading speech stated: proposed amendment to change the oath to one of loyalty to New South Sovereignty does not lie with a State Wales was rejected by the or with a but with the government".14 country in which we live and with the people of his State. Presently, 4.3 Constitution Amendment members state their allegiance to a (Pledge of Loyalty) Act 2006 head of State. That seems to me to have the priorities wrong. Our The current position was established allegiance is not to a head of State, under the Constitution Amendment or even to the State itself, but to the (Pledge of Loyalty) Act 2006, by which people who elect us and whom we a "pledge of loyalty" to "Australia and represent.

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Against the Bill, leading for the constitutional monarchy, and thirdly, Opposition in the Upper House, Don on all the evidence, the Australian Harwin observed (in part): people support and have affirmed the role and function of the Crown in "Sovereignty" is the exclusive right the Constitution. to exercise supreme authority over a geographic region or group of Having noted that "our service men people. Where a nation has a and women take a similar oath", the constitution, that document defines Second Reading speech added: the nature of sovereignty. As we are a sovereign State within a national The oath is not simply to the Queen federation of such States and as an individual but to the Crown, Territories, our Australian which embodies far more than just Constitution and the Constitution Act the physical characteristics of our 1902 of New South Wales define country. It is the basis on which our "sovereignty" in our nation. Under Constitution is founded, the font of our constitution, sovereignty is our laws and the single entity which vested in an individual, a hereditary unites all Australians into one nation. monarch who is the sovereign. Our sovereign exercises her authority on It was further argued that: the advice of her Ministers, with a constitutionally defined role for What we are doing today is bringing Parliament. New South Wales back into harmony with the Commonwealth In swearing an oath of allegiance a Constitution and with the other citizen acknowledges his duty of States of Australia. allegiance and swears loyalty to the sovereign…There is no 6 Comparing Australian incompatibility between this oath of loyalty to the sovereign and a jurisdictions system of responsible and The last decade or so has seen some representative government.17 major shifts in the terms of the oaths of allegiance required to be taken by 5 Constitution Amendment members of Australian Parliaments, as (Restoration of Oaths of shown in the table below. Allegiance) Bill 2011 As noted, on 11 November 2011 the Jurisdiction Parliamentary Restoration of Oaths of Allegiance Bill Oath/Affirmation of Allegiance or Pledge 2011 was introduced in the Legislative of Loyalty Council, sponsored by the Reverend Commonwealth The Queen18 the Hon Fred Nile. Its objects were New South Wales Australia and the outlined above. On its behalf, the people of NSW Second Reading speech set out three Queensland The Queen and the people of key considerations, as follows: Queensland19 South Australia The Queen 20 Firstly, under the Constitution of the Tasmania The Queen 21 Commonwealth of Australia we Victoria The Queen 22 remain an indissoluble Federal Western Australia The people of WA/or Commonwealth under the Crown. the Queen and the Therefore, we should unite all States people of WA23 of Australia with the Commonwealth. ACT The Queen and/or the 24 Secondly, under the Constitution of people of the ACT 25 New South Wales we remain a Northern Territory The Queen

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6.1 Queensland own beliefs. Such a decision mirrors The amendments in Queensland were the current choice available to all introduced in 2001, as part of a lengthy those who are about to take office to either take an oath or make an process of constitutional consolidation. affirmation, based on their personal In addition to swearing to bear true beliefs. allegiance to the Sovereign, Members are required to take an oath or At the same time, the Committee affirmation of office, swearing to "well sees it as important that there be an and truly serve the people of oath (or affirmation) of allegiance. Queensland and faithfully perform the The Committee therefore proposes duties and responsibilities of a that, where an election is made to member of the Legislative Assembly to not swear (or affirm) allegiance to the best of my ability and according to the Sovereign, there be a law". In support of this oath of office, in requirement to swear allegiance in terms “to Australia” and to its 2001 report the Legal, Australia’s “Head of State”.28 Constitutional and Administrative Review Committee (LCARC) said it This recommendation has not been believed: acted upon to date. The choice it provides between swearing allegiance that, upon taking office, members to the Sovereign by name, on one should be required to make a personal commitment to the people side, and to the Head of State "and his of Queensland – the actual font of or her successors in office", on the sovereign power in this State.26 other, seems rather curious. Under our present constitutional arrangements In 2005, following a further report by they are one and the same. Three the LCARC,27 the Constitution and dissenting Committee members saw it Other Legislation Bill proposed to as a "latent republican exercise". They provide members, ministers and recommended that: judges with the option of not taking an oath or affirmation of allegiance to the the Queen be styled in the oath and Sovereign. The Bill lapsed on the affirmation as lawful sovereign both dissolution of the Legislative Assembly of Australia and Queensland, to reflect our current constitutional in August 2006. arrangements.29

Subsequently, in April 2009 the 6.2 Western Australia Legislative Assembly's Law, Justice The position in Western Australia since and Safety Committee received a 2005 is that a choice is available referral asking it to "develop options for between swearing to serve "the people modernising the oaths or affirmations of Western Australia", or swearing to of allegiance" contained in the bear true allegiance to the Queen and Constitution Act 2001. With a diversity to faithfully serve the people of the of views expressed in the submissions State. In other words, making an oath it received, a majority of the or affirmation to serve the people is Committee concluded that: mandatory, whereas making an oath

making it optional to take an oath of or affirmation to the Queen is optional. allegiance to the Sovereign best caters for these differences of 6.3 The Australian Capital Territory opinion. This allows each individual Since 1995, a threefold choice is to make a decision that reflects their available to members of the ACT

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Legislative Assembly, that is, to swear Territory model in that there are allegiance to: the Queen; to swear to mixed allegiances, that is, one is serve the people of the Territory; or pledging allegiance to two different both. In the Second Reading speech, things in that one pledge. I think that Ms Follett said that the legislation was is confusing and wrong, and defeats the entire purpose of having a introduced as part of the broader pledge. As I said, we should not debate about Australia becoming a have mixed or conflicting republic; and she noted that the oath allegiances. of citizenship no longer required "an empty rhetorical expression of loyalty 7 Issues in the debate to the Queen". Ms Follet further argued Several issues arise in respect to the that it was an "anachronism" for Restoration of Oaths of Allegiance Bill Members of the Assembly to swear or 2011. Some of these go to the heart of affirm allegiance to the Queen when, our constitutional arrangements. Even unlike all other States and Territories, the terminology is problematic. Do the the ACT "does not have its own terms "the Queen", "Her Majesty", "the representative of the Queen in the Sovereign" and "the Crown" mean the form of a governor or an same thing? administrator".30

7.1 What is sovereignty and where 6.4 Comments is it located? Commenting on these arrangements in One focus of the current debate the Second Reading speech for the relates to the concept of sovereignty. Constitution Amendment (Pledge of What is it? Where is it located? The Loyalty) Act 2006, Mr Lynch said that approaches to this contested and while he understood: "notoriously ambiguous concept" are

many and varied.31 For the moment, it the political process that gave rise to the Australian Capital Territory is enough to outline two views, one of result, I think that it is probably which can be described as "legal", the wrong in principle. If we are to other as "political". pledge our allegiance to something, we cannot have half of us pledging In respect to the "legal" doctrine, our allegiance to one thing and the sovereignty is in this context often other half pledging allegiance to associated with the idea of possessing something else. It is silly to go the authority to make commands through the process of having a which cannot be countermanded and pledge and having mixed with the power to make and unmake allegiances. laws. In the setting of our constitutional

monarchy, this finds expression in the Similarly, he criticised the current bifurcation in modern times between Queensland model, whereby an oath executive and legislative powers: is made to both the Queen and the defined in terms of "the King [or Queen people of the State. Not only did he or Crown] in Council', which can be consider an oath of allegiance to the associated with prerogative power; Queen, or to any Head of State, wrong and in terms of "the King [or Queen or in democratic theory, the Queensland Crown] in Parliament", which is model was for him: associated with the doctrine of the

sovereignty of Parliament.32 In its susceptible to the same criticism I just made of the Australian Capital pristine legal form, as formulated by

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AV Dicey, this last doctrine asserts the As to the source of its authority, Mason power of the British Parliament "to CJ contended that "The Australia Act make or unmake any law whatever", 1986 (UK) marked the end of the legal except one that would have the effect sovereignty of the Imperial Parliament of binding later Parliaments.33 and recognized that ultimate sovereignty resided in the Australian The doctrine finds expression in the people".36 As for the location of the NSW Constitution Act, which defines power to amend the Commonwealth "the Legislature" as "His Majesty the Constitution, in support of popular King with the advice and consent of sovereignty McHugh J observed that the Legislative Council and Legislative "ultimate sovereignty resides in the Assembly". By s 5, it is this composite body which made and can amend the body, "the Legislature", which has the Constitution".37 Significantly, the power "to make laws for the peace, Commonwealth Constitution was welfare, and good government of New agreed to by popular referendum and South Wales in all cases whatsoever". can only be amended by the same means. Notwithstanding the "manner and form" provisions which have enabled The correctness of this account of the NSW Legislature to delegate some popular sovereignty as a legal doctrine of its law making powers to popular has been questioned, with Professor referendum, the legal foundations of Zines concluding that: sovereign power under the Constitution Act conforms to the The concept of sovereignty of the doctrine of parliamentary sovereignty, people…must be regarded as either as understood first in a colonial and purely symbolic or theoretical. Seen afterwards in a federal context.34 as a symbol it might be regarded as similar to the symbol of the Crown, uniting the various organs and In recent times it has been argued that elements of the organisation of "legal" sovereignty can be established government under one concept and, on the basis of the doctrine of popular in particular, symbolising the system sovereignty. At least, that is the of representative government that argument which has been made in has been discovered in the respect to the Commonwealth [Commonwealth] Constitution".38 Constitution, as articulated by the High Court in a series of implied freedom While the constitutional position in cases in the 1990s. The upshot of NSW is subtly different,39 the same those cases was the discovery of an broad argument may apply. But that is implied freedom of political not to downplay the significance of communication, informed by and popular sovereignty as a political based on the constitutionally doctrine. In a crucial sense the prescribed system of representative legitimacy of the laws and decisions and responsible government. made by the NSW Parliament and "Sovereignty" in this context was Government rests on their status as considered by reference to the source representatives of the people of the from which the Commonwealth State. After all, in a constitutional Constitution derived its authority, and monarchy the Sovereign may reign but secondly from the location of the it is the representatives of the people power to amend it.35 who rule.40

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Another perspective on the issue can established by "political struggle, not be gained by reference to the work of judicial decision" and is: the constitutional lawyer, AV Dicey. As noted, the doctrine of parliamentary in fact, sui generis, a unique hybrid sovereignty is associated with Dicey. of law and political fact deriving its What is sometimes overlooked is the authority from acceptance by the emphasis Dicey placed in a British people and by the principal context on the "political" sovereignty of institutions of the state, especially parliament and the judiciary.44 the electors. Having confirmed that "as a matter of law Parliament is the 7.2 Can sovereignty be divided or sovereign power in the state", Dicey separated? went on to say: Constitutional monarchy is not so It is however equally true that in a much a product of theory as of practice political sense the electors are the and, as such, does not always pass most important part of, we may even the test of logical consistency, still less say are actually, the sovereign of theoretical purity. It might be power, since their will is under the suggested that the very term present constitution sure to obtain "constitutional monarchy" implies a 41 ultimate obedience. shared sovereignty, combining the Sovereign and the people. As Wade and Bradley commented: Theoretically, however, that is problematic, for the reason that Dicey suggested that political sovereignty is usually conceived of as sovereignty, as opposed to indivisible and even absolute, legislative sovereignty, lay in the electorate, and that ultimately the encapsulated in Jean Bodin's idea of will of the electorate was sure to "the absolute and perpetual power of a 45 prevail on all subjects to be commonwealth". Practically determined by the British speaking, on the other hand, the dual government.42 "legal" and "political" sovereignty envisaged by Dicey may be just As a matter of political practice a another compromise or similar argument could be made to the accommodation within our system of same effect in an Australian context, government. including NSW.43 The argument might be used in support of a "political" What, then, is implied in the doctrine of popular sovereignty, on the Restoration of Oaths of Allegiance Bill basis that in a representative 2011, where members are presented democracy, the people are the real with a choice of sovereign allegiances and actual source of political authority or loyalties? Does it favour and legitimacy. From the standpoint of compromise over consistency, political this "political" doctrine of sovereignty it history over legal theory? might be argued that its "legal" counterpart is something of a second- Of course, it may be that s 12 of the order explanation, one that is NSW Constitution Act in its current dependent ultimately on the political form already implies a divided realities of popular and institutional sovereignty, between "Australia" and approval. As Professor George "the people of NSW". This is because, Winterton observed, the doctrine of in the Australian federation, where parliamentary sovereignty was there is a Queen of Australia and

Page 9 of 15 NSW Parliamentary Library Research Service possibly a Queen of NSW, power is about mixed allegiances between the divided or distributed between the Crown and the people; on the other Commonwealth and the States, with the concern was that some Members each level of government enjoying would be swearing different "sovereign power" within their oaths/affirmations to others. jurisdictional limits. As Twomey writes: As to what is meant by swearing McHugh J also observed in Re allegiance, one point to make is that Residential Tenancies Tribunal references in a constitutional context (NSW); Ex parte Defence Housing to the Queen "are to the office, rather Authority that "[w]ithin their than the person of the Queen, and respective domains, the polities that allegiance relates to the body politic, make up a federation are regarded rather than the Queen personally".48 As as sovereign". He further noted in Austin v Commonwealth that the such the taking of an oath can be seen sovereignty of a federated nation "is as an express recognition of one's 49 divided on a territorial basis". political obligation. Another way of looking at it is that "sovereignty is shared between the A second point is that, once made, the Commonwealth and the member parliamentary oath (unlike its feudal States of the federation".46 counterpart) does not appear to be of any legal significance.50 Queensland's In this way the untidy exigencies of LCARC explained that in making an federalism are added to the oath or affirmation, a member is accommodations of constitutional making a solemn public declaration or monarchy. promise to comply with its terms. The LCARC added: An added comment is that, by its reference to "Australia", current s 12 As the commitments or promises may also incorporate a reference to made in an oath or affirmation are the Crown. This arises from another morally and not legally binding, an comment made by Twomey, to the oath or affirmation does not impose effect that "Australia", understood as a any penalty for a failure to comply 51 polity with a defined head of state, with its commitments. "encompasses the State as well as the nation and the Queen".47 If that is the Taking these two points together, the case, then those who favour omitting parliamentary oath of allegiance can any express or implied reference to the be viewed as a political oath of loyalty Queen, may argue that the pledge of to the body politic, giving rise to no loyalty in s 12 should be limited to "the legally binding undertakings, but one people of NSW". that is nonetheless of moral and symbolic note. 7.3 Can allegiance or loyalty be divided or mixed? The question that arises is whether such an oath, affirmation or pledge can As noted, an argument made in the be divided or separated between context of the Constitution Amendment different bodies or entities? Can there (Pledge of Loyalty) Act 2006 was that be mixed allegiances? Historically, the swearing allegiance or loyalty to either answer would have been "no", for the the Queen or the people of NSW was simple reason that the oath was both wrong in principle and confusing intended to cement support against the in practice. On one side, the issue was external and internal enemies of the

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Crown. It was the preservation of the expressing their allegiance to the King's person and with it the body Crown, others will be reluctant to politic itself that was at issue. swear allegiance to the Queen, albeit as the encapsulation of the body In a contemporary constitutional politic. setting, based on representative and responsible government, one question 7.4 An oath/pledge of loyalty or of to consider is whether the body politic service? (as represented by the Queen) and the A further thought is whether it would people of NSW are, in effect, two sides be more meaningful to call the pledge of the same coin? Theoretically and of loyalty required by s 12 of the practically, is not an identity of Constitution Act a pledge or oath of interests and loyalties at issue here? "office" or "service". The word "loyalty" has echoes of citizenship, nationhood A further question is what purpose is and, historically, of the duties owed by served by the parliamentary oath subjects to the monarch. In the ACT, today? Is it merely part of the Members can swear allegiance to the symbolism and ceremony that Queen or swear to serve the people of attaches to becoming a Member of the Territory. Parliament? If so, does it matter if some Members express their loyalty 7.5 Is there any need for a differently to others? If what it amounts parliamentary oath or pledge? to is a promise, a moral statement, is While no legal rights or duties attach not the weight of subjective meaning directly to the making of a that attaches to it more important than parliamentary oath or pledge, it is the consistency as to the object of case that its making is a requirement allegiance or loyalty? for a Member to sit and vote in either House. As such, it might be On the other hand, it might be argued considered a qualification for office, that if symbolism matters then should it which begs the question why such a not at least achieve some consistency qualification or additional hurdle is of form and content? In addition, if needed for an elected Member to sit taking an oath or pledge is to be a and vote in the NSW Parliament. qualification for sitting and voting in the

NSW Parliament, one that is an It is reported that in the UK: expression of loyalty and of one's duty as a parliamentarian, does it not make Some have argued that in a sense for all Members to make that democracy the electorate should promise in the same form? have the sole responsibility (subject to electoral law) for determining who One possible compromise is found in sits in the House of Commons to the Queensland model where, represent them; and that Parliament effectively, two distinct oaths are should have no right to overturn the 52 made; parliamentarians are required to decision of the people. take an oath of allegiance (to the Sovereign) and an oath of office (to the One member of the House of people Queensland). But that is not a Commons (Kevin McNamara) is compromise that will appeal to quoted as saying: everyone. Just as some Members may have a strong preference for

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The era in which it was thought to be duties as a parliamentarian is an appropriate for legislators to set a appropriate moment for making an political or religious test for those express recognition of political deemed acceptable to enter the obligation, by way of a solemn parliamentary club has long since promise, in whatever form that takes. passed…The only test for inclusion

and membership of this House should be the will of the electorate, 8 Conclusions freely expressed.53 The issues raised by the Restoration of Oaths of Allegiance Bill 2011 are Even if that argument has some force many and varied. The foregoing in respect to Members of Parliament, discussion has suggested a number of the same may not apply to Members in different approaches to the content of their capacity as Executive s 12 of the NSW Constitution Act, Councillors. When discussing whether including: oaths or affirmations should continue to be required, Professor Enid A pledge of loyalty to Australia Campbell observed that: and the people of NSW (the current position). Were requirements to take oaths or A pledge of loyalty or service to affirmations of allegiance to be the people of NSW. removed, there could still be good Either a pledge of loyalty to reasons for retaining provisions Australia and the people of under which installation in certain public offices depends on the NSW or an oath/affirmation of tendering and taking of an oath or allegiance to the Queen (the affirmation of office. Swearing in to Restoration of Oaths of office, at least, if it is a matter of Allegiance Bill 2011 model). public record, establishes a firm date An oath of office to Australia on which the occupant of the office and the people of NSW and an has assumed the powers and duties oath/affirmation of allegiance to 54 attached to the office. the Queen (the Queensland model). Campbell discussed oaths of office in An oath/affirmation to serve the various republican , people or of allegiance to the including the and Queen and to serve the people Ireland. She noted that, for the US, the (the WA model). constitutional prescriptions require "a Either an oath/affirmation of commitment to the Constitution rather allegiance to the Queen or an than fidelity to a person or loyalty to oath/affirmation to serve the the country itself".55 Campbell wrote people, or both (the ACT that the same applies under the model). Constitution of the Republic of Ireland, Removing the requirement to although in that context only the take the parliamentary oath as a President and judges of the Supreme condition for sitting and voting in Court are required to take an oath of the NSW Parliament. office. Members of the and of the Government do not take any Reviewing the various options, Enid oath.56 Campbell wrote:

The contrary argument would seem to Whether oaths or affirmations be that the time of taking up one's should continue to be required of

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those appointed or elected to particular public offices and, if so, Member of either the Legislative Council or what forms that oaths and the Legislative Assembly is permitted to sit affirmations should take, are or vote in the House to which the Member questions on which there are likely has been elected until the Member has to be differences of opinion.57 taken and subscribed the pledge of loyalty prescribed by the Oaths Act 1900 before 1 the Governor or other person authorised by It takes the following form: "I…being the Governor to administer the pledge". appointed as a member of the Executive 13 NSWPD, 23 May 1995, p 51. Council of New South Wales, do swear that 14 Twomey, n 6, p 385. I will perform the functions and duties of an 15 Supported by Labor Government members, Executive Councillor faithfully and to the along with Peter Breen (Reform the Legal best of my ability and, when required to do System), Arthur Chesterfield-Evans so, freely give my counsel and advice to (Australian Democrats) and Peter Wong the Governor or officer administering the (Unity); and opposed by Coalition Government of New South Wales for the members, along with Reverend Nile time being for the good management of the (Christian Democrats) and John Tingle public affairs of New South Wales, and that (Shooters) I will not directly or indirectly reveal matters 16 NSWPD, 6 May 2004, pp 8567-8571. debated in the Council and committed to 17 NSWPD, 2 March 2006, p 20937. my secrecy, but that I will in all things be a 18 Commonwealth Constitution, s 42 read with true and faithful councillor. So help me the Schedule to the Constitution. God". 19 2 Constitution of Queensland 2001 (Qld), s House of Commons Library, The 22 read with Schedule 1. Parliamentary Oath, Research Paper 20 Constitution Act 1934 (SA), s 42. 1/116, p 15. This account is on that paper, 21 Constitution Act 1934 (Tas), s 30, read with which in turn is based largely on RW Promissory Oaths Act 1869 (Tas), s 2. Perceval and PDG Hayter, "The oath of 22 Constitution Act 1975 (Vic), s 23 read with allegiance" (1964) 23 The Table 85. 3 Schedule 2. N Wilding and P Laundy, An Encyclopaedia 23 Constitution Act 1889 (WA), s 22 read with of Parliament, 4th ed, 1972, p 503. 4 Schedule E. House of Commons Library, n 2, p 18. 24 5 Oaths and Affirmations Act 1984 (ACT), s In the UK the right to affirm was only an 6A read with Schedule 1A, Part 1A.1 and option after 1888, following the Part 1A.2 controversial case of the atheist Charles 25 Northern Territory Self-Government Act Bradlaugh. The case is discussed in the 1978 (Cth), s 13 read with Schedule 2. House of Commons Library Research Members of the Legislative Assembly are Paper 1/116, as is the later refusal of Sinn also required to take an oath or affirmation Fein Members to take the oath. 6 of office, as set out in Schedule 3, to For the position before 1856 see – A "render true and faithful service" in that Twomey, The Constitution of New South capacity. Wales, The Federation Press 2004, pp 26 Queensland Parliament, LCARC, Report 384-385. 7 No 31, Review of the Members' Oath of The NSW Parliament could not have Affirmation of Allegiance, October 2001, p dispensed with the requirement that 7. Members take an oath of allegiance, as this 27 Queensland Parliament, LCARC, Report was mandated by s 12 of the Australian No 36, The Queensland Constitution: Constitutions Act 1850 (13 & 14 Vic c 59): Specific content issues, August 2002. E Campbell, "Oaths and affirmations of 28 Queensland Parliament, Law, Justice and public office" (1999) 25(1) Monash Safety Committee, Report No 71, Options University Law Review 132 at 142-143. 8 for modernizing the oaths and affirmations As Twomey notes, the reference to the of allegiance in the Constitution of dependent status of NSW was removed Queensland Act 2001, September 2009, p from the oath - Twomey, n 6, p 385. 9 6. NSWPD, 4 March 1993, pp 338-339. 29 10 Queensland Parliament, Law, Justice and NSWPD, 23 May 1995, p 50. Safety Committee, Report No 71, n 28, pp 11 NSWPD, 8 June 1995, p 855. 12 9-11 (Dissenting Report). Under the Bill, s 12 of the Constitution Act 30 ACT Debates, 21 June 1995, p 970. would have been amended to read: "No

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31 G Winterton, "Popular sovereignty and Constitution": A Twomey, n 6, p 45. Issues constitutional continuity" (1998) 26(1) relating to parliamentary sovereignty are Federal Law Review 1 at 4. Different views discussed in - "BLF v for Industrial about sovereignty and its historical and Relations" by Fiona Wheeler in G Winterton contemporary meaning are explored in H ed, State Constitutional Landmarks, The Kalmo and Q Skinner eds, Sovereignty in Federation press 2006. Fragments: The Past, Present and Future 35 Winterton, n 31, p 4. of a Contested Concept, Cambridge 36 ACTV (1992) 177 CLR 106 at 138. University Press 2010. Skinner contrasts 37 McGinty (1996) 186 CLR 140 at 237 Hobbes' "fictional" theory of sovereignty in (emphasis added). which, based on a political covenant 38 L Zines, The High Court and the agreed to by all individuals, power resides Constitution, 5th ed, The Federation Press in the "artificial person" of the state, with 2008, p 557. the legal positivist theory of John Austin. 39 Twomey, (n 6, p 21) explains that the NSW Further to this positivist approach, HWR Constitution Act has something of a hybrid Wade and HLA Hart ascribed ultimate status, as an indigenous NSW statute and authority to the observance by the higher as a schedule to an Imperial Act. judiciary of a "rule of recognition" – the 40 According to Vernon Bogdanor, "A doctrine of parliamentary sovereignty. constitutional monarchy…can be defined 32 M Sunkuin and S Payne eds, The Nature of as a state which is headed by a sovereign the Crown, Oxford University Press 2000, who reigns but does not rule" – The pp 36-37. According to Professor Monarchy and the Constitution, Clarendon Goldsworthy, "parliamentary sovereignty Press 1995, p 1 might in principle have existed well before 41 AV Dicey, n 33, p 73. For a commentary on the nineteenth century, when responsible parliamentary and popular sovereignty in government became firmly established" - J the UK see – R Weill, "Centennial to the Goldsworthy, The Sovereignty of Parliament Act 1911: The Manner and Parliament, Clarendon Press 1999, p 9. Form Fallacy" [January 2012] Public Law Goldsworthy presents a detailed account of 105. the history and philosophical foundations of 42 ECS Wade and AW Bradley, Constitutional the doctrine of parliamentary sovereignty. and Administrative Law, 11th ed, Longman 33 AV Dicey, Introduction to the Study of the 1993, p 94. Law of the Constitution, 6th ed, Macmillan 43 Wade and Bradley, n 42, p 94. Admittedly, 1902, p 38. In a positivist vein, Dicey adds the argument is not without its difficulties. that "no person or body is recognized by Wade and Bradley noted in this respect the law of England as having a right to that "the control which it [the electorate] override or set aside the legislation of provides is very generalized and sporadic Parliament". The application of the doctrine in effect", depending on a range of factors, of parliamentary sovereignty to the British including the "means by which public Parliament is currently a matter of debate, opinion is formed and expressed". in particular having regard to the 44 Quoted in Goldsworthy, n 32, p 243. relationship between European and UK law 45 J Bodin, On Sovereignty edited by JH and the devolution of power within the UK. Franklin, Cambridge University Press 1992, For a commentary see – V Bogdanor, The p 1 (first published 1576 and quoted in New British Constitution, Hart Publishing Kalmo and Skinner, n 31, p 223. 2009, Chapters 2 and 11. See also the 46 Twomey, n 6, p 44 (footnotes omitted). chapter by Neil MacCormick in H Kalmo 47 Twomey, n 6, p 385. and Q Skinner, n 31. The powers of the 48 Twomey, n 6, p 386. NSW Parliament have of course always 49 It is said that, irrespective of whether a been subject to limits, originally in respect person has taken an express oath of to the Imperial Parliament and later under allegiance, at common law, all Australian the Commonwealth Constitution. citizens owe allegiance to the Queen - 34 Goldsworthy (n, 32, p 234) writes that "the Campbell, n 7, p 159. doctrine applies in Australia only in a 50 But note that, by s 13A(1)(b), a Member heavily qualified form". As Twomey may be disqualified for, among other explains, the "sovereignty" of NSW is things, taking an oath of allegiance to a "limited to the extent that the State is a foreign power. However, it is the making of constituent element of a federation and its an oath of allegiance to a foreign power powers are limited by the Commonwealth that carries legal consequences, not the

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taking or breaching of the parliamentary oath itself. For a commentary on the s 13A(1)(b) see Twomey, n 6, p 423. 51 Queensland Parliament, LCARC, Report No 31, n 26, p 5. Presumably, the same applies to the pledge of loyalty taken by members of the Executive Council in NSW. 52 House of Commons Library, The Parliamentary Oath, Research Paper 1/116, p 27 53 HC Deb, 29 July 1998, Vol 317 c 377. 54 Campbell, n 7, pp 164-165. 55 Campbell, n 7, p 157. 56 The oath to the British monarch, a controversial requirement of the 1921 Anglo-Irish Treaty, was abolished by Fianna Fáil in 1932–33. 57 Campbell, n 7, p 163.

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