by Dr Glenn Davies

In 2009, a Queensland Parliamentary Committee recommended future politicians should have the option of swearing their allegiance to Australia, rather than to the Queen, when they take their place in Parliament. The idea picks up the notion that Queenslanders (and Australians) are not so much subjects of the Crown as they are citizens and they owe their primary responsibility to the state (or the nation) and to their fellow citizens. But the Queensland Labor government disregarded the recommendation and their own party platform. Shame on them, writes history editor Dr Glenn Davies.

By letter dated 17 May 2001 – ten years ago almost to the day the then Queensland Premier, Peter Beattie, asked the Legal, Constitutional and Administrative Review Committee (LCARC) of the 50th Parliament to consider Recommendation 7 of the Members’ Ethics and Parliamentary Privileges Committee (MEPPC) report No.44, namely:

That the Oath of Allegiance taken by members of the Legislative Assembly be reviewed, within current constitutional arrangements, as part of the consolidation of the Queensland Constitution and that such review take into account the aspirational statements contained in the previous Members’ Ethics and Parliamentary Privileges Committee’s Statement of Commitment.

The members’ Oath of Allegiance was then contained in Section 4 of the Constitution Act 1867 (Qld). In its report on the issue, the committee recommended that the Constitution should be amended so that members of the Queensland Legislative Assembly should be provided with the option as to whether to swear or affirm allegiance to the Crown, or only to the people of Queensland. Beattie then announced that the Government would change the legislation requiring Parliamentarians to take an Oath or Affirmation of Allegiance to Her Majesty the Queen and instead allow Members to elect to swear or affirm their allegiance to the Parliament and People of Queensland. In August 2005, the Constitutional and Other Legislation Amendment Bill 2005 was introduced into Parliament by the then Premier, which contained amendments to that effect but was not debated or passed prior to the 2006 State election. As a result the Bill lapsed.

Queenslanders who follow these things considered the Government was bound by its promise to alter the legislation requiring an Oath to the Monarch. Advice from the Chief of Staff, Office of the Premier, was that a decision about whether to re-introduce the Bill into the House would be made in due course. In early 2008, it was advised that should it be determined that the proposed legislative amendments were supported a Bill would be introduced into Parliament as soon as practical after that time.

On 25 March 2009, I sent a letter to all newly elected Queensland MPs informing them that one of the first activities for members of the 53rd Queensland Parliament will be swearing an Oath of Allegiance to the Queen. I asked them to consider whether Queensland’s elected representatives should have an allegiance to the monarch of a foreign country or to the people who elected them and called upon them to support the amendment of the Oath of Allegiance to the Queen to give them an additional choice of oath – one that does not include the Queen. I argued that as members of parliament they must swear to affirm to:

‘be faithful and bear true allegiance to Her Majesty and her heirs and successors according to law”.

I suggested that members of parliament should be given an alternative oath to be:

‘faithful and bear true allegiance to Australia and the people of Queensland according to law’.

Similar reforms have been enacted in New South Wales, Western Australian and the ACT.

In 2009, a Parliamentary Committee was established to investigate recommendations for the modernising of Oaths and Affirmations of Allegiance in the Constitution of Queensland 2001. On 13 May 2009, I made the following submission:

Submission – Modernising of oaths and affirmations

I, Glenn Davies submit that this country has moved to the point that a colonial pre-democratic oath of allegiance is completely inappropriate and as such the Oaths or Affirmations of Allegiance contained in Schedule 1 of the Constitution of Queensland 2001 be amended and modernised to reflect the popular sovereignty of the people of Queensland and propose the following language.

“ I, ..(name).., do sincerely promise and swear (or, for an affirmation – do sincerely promise and affirm) that I will well and truly serve Australia and the people of Queensland and faithfully perform the duties and responsibilities of a member of the Legislative Assembly to the best of my ability and according to law.

So help me God! (or omitted for an affirmation).”

The current Oath or affirmation of allegiance and of office – member of the Legislative Assembly in Schedule 1, Constitution of Queensland 2001, requires a member of Parliament to sincerely promise and swear (affirm) allegiance to both the Queen and the people of Queensland. The conflict within this Oath or affirmation of allegiance to the Queen is that it is wrong in democratic theory because the oath should not be to the Queen or to the head of state, be it a president or the Queen. It should be to the people of Queensland and to Australia; it should not be to a head of state. The current oath is also open to criticism in that it has mixed allegiances, that is, one oath offering allegiance to two different things. This is confusing and wrong, and it defeats the entire purpose of having an oath. It seems that if there is to be an oath, there should not be mixed or confused allegiances.

The change to theOath or affirmation of allegiance does not replace loyalty to the Queen with loyalty to a president. It replaces allegiance to a Head of State—who at the moment happens to be a hereditary monarch—with allegiance to Australia and the people of Queensland. That is, the Oath or affirmation of allegiance itself is neither monarchist nor republican; it is about democratic theory and about accepting that our real legitimacy comes from Australia and from the people of Queensland, not from someone who happens to be a head of state.

With the modernisation of the Oath or affirmation of allegiance, the allegiance of members of Parliament will be directed where it belongs: to Australia and to the people of Queensland. The legitimacy of the Queensland Parliament is based upon the principles of democracy. Sovereignty does not lie with a State, or with a head of State, but with the country in which we live and with the people of this State. Presently, members swear their allegiance to a Head of State. Their allegiance is not to a head of State, or even to the State itself, but to the people who elect them and whom they represent.

If members of Parliament are to go through a process of swearing or giving allegiances, it ought to mean something. Swearing or declaring an oath as they currently do is largely meaningless. It is simply a form of words with nothing really attached to it. Changing the current Oath to the one proposed gives it a meaning that has substance. Of course, the fact that our head of State is an overseas monarch makes the Oath utterly irrelevant. The same objection would remain even if the oath were made to an Australian, even to a republican head of State. It would not be a declaration of real significance. It would not be an oath to the source of the legitimacy of members of Parliament. It would not be an oath to where sovereignty actually resides.

Swearing in of the Bligh cabinet
Queensland is not the only State or Territory of Australia that has modernised its Oaths and Affirmations. In the Australian Capital Territory Oaths and Affirmation Act 1984, section 6A, sets out the obligations of members of that Assembly to undertake an oath or affirmation. Schedule 1A sets out one of the alternative oaths as:

I … swear that I will faithfully serve the people of the Australian Capital Territory as a member of the Legislative Assembly and discharge my responsibilities according to law. So help me God!

Legislation was passed in the Western Australian Parliament. The Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Bill 2005 of Western Australia provides:

I ... swear, according to the religion and the beliefs I profess, that I will faithfully serve the people of Western Australia as a member of the Legislative Council/Legislative Assembly.

The particularly interesting aspect of the debate in the Western Australia Parliament Hansard is that when the legislation was before that Parliament it had a number of provisions of which this was simply one and it was the other provisions that generated the controversy and the excitement. To the people of Western Australia, moving to a pledge or declaration seemed to have been taken as a commonplace and ordinary thing and did not seem to generate much opposition from conservatives or others in the Western Australian Parliament. A number of years ago the Australian Citizenship Amendment Act altered the pledge of commitment to be taken by new Australian citizens. For about a decade now, in accordance with Federal legislation, the pledge has read as follows:

From this time forward, under God, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect and whose laws I will uphold and obey.

This proposal is not specifically republican. While I would expect every republican who is serious about being a republican to support it for obvious reasons, it still institutes an Oath or Affirmation that is appropriate, whether we are a monarchy or a republic. The proposal in the submission is moderate, reasonable and almost modest. It can hardly be described as radical. It simply means that members of Parliament express their allegiance in the way they should. In a democracy allegiance should be to the people, not to a head of state. It should be an allegiance to the people that is represented, not to the person at the top of the tree or structure. Allegiance should not be to someone who lives thousands of miles away, but to the people members of Parliament represent—the people who elect them. The proposed change is not about a republic or a monarchy. It means that as members of Parliament they should pledge their allegiance not to a head of state, be it a monarchy or president, but to the sovereignty and source of their legitimacy. It pledges their loyalty where it is truly owed—to Australia and the people of Queensland.

Symbols are important. The oaths of allegiance have been changing around Australia. The parliamentary Oaths have already been amended in NSW, WA and ACT. It should be noted that Queensland ALP policy is committed to modernising Queensland’s symbols and processes to ensure they reflect Australia’s independence.

The current Oath or affirmation of allegiance and of office – member of the Legislative Assembly in Schedule 1, Constitution of Queensland 2001 needs to be modernised so that members of Parliament can pledge their allegiance not to a head of state, be it a monarch or president, but to the sovereignty and source of their legitimacy; that is, pledging their loyalty where it is truly owed—to Australia and the people of Queensland.

On 3 September 2009, the ‘Law, Justice and Safety Committee’ (formerly LCARC), Queensland Parliament, tabled ‘Options for modernising the oaths and affirmations of allegiance in the Constitution of Queensland 2001’, Report No. 71 in Parliament. The report can be accessed at http://www.parliament.qld.gov.au/view/committees/documents/lcarc/reports/Report%2071.pdf . The parliamentary committee recommended to amend the Constitution of Queensland 2001 so that:

All oaths (and affirmations) of allegiance currently contained in the Act be worded so that allegiance is to be sworn (or affirmed) to Australia AND to EITHER (at the option of the person taking the oath (or making the affirmation):Her (or His) Majesty … (name of Sovereign) … as lawful Sovereign of Australia and to Her (or His) Heirs and Successors; or Australia’s Head of State and to his or her successors in office.

The parliamentary committee had adopted the recommendation from my submission that all oaths and affirmations be to Australia. However there was no reference to ‘the people of Queensland’ instead allegiance was to be sworn to Australia’s Head of State. It is here I believe that it all came unstuck.

On 3 December 2009, the Queensland Government response to the committee’s recommendation was tabled in the Legislative Assembly. They knocked it on the head and considered the recommendation “does not present a sensible alternative to the current oath of allegiance”.

Any successful change to the Oath or affirmation of allegiance should not replace loyalty to the Queen with loyalty to a president. Rather it should replace allegiance to the Head of State – who at the moment happens to be a hereditary monarch – with allegiance to Australia and the people of Queensland. The Queensland Labor government has been saying for exactly a decade now that the oath of allegiance needs to be reviewed. It’s time they stopped their delaying tactics and implemented their own party platform.

 

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