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The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011: Background and Commentary by Gareth Griffith

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The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011: Background and Commentary by Gareth Griffith February 2012 e-brief 4/2012 The Constitution Amendment (Restoration of Oaths 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 oath or 2 The current position affirmation 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 Page 1 of 15 NSW Parliamentary Library Research Service 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 oath of allegiance 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 throne, 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 Pope 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 Oaths Act 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 government 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 United Kingdom 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, Premier 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 Page 3 of 15 NSW Parliamentary Library Research Service "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.
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