Luke Beck: Swear Words and the Australian Constitution

LukeIt seems Australia’s new (and also former) Prime Minister Kevin Rudd likes to swear.

There is a leaked video posted on YouTube of Rudd using a number of colourful expressions as he expressed his frustration at the difficulty of recording a video message in Mandarin some time ago. He also swore again last Thursday (27 June 2013) in front of Australia’s Governor-General. This time, however, it was a different sort of swearing and the footage of it was broadcast live. Rudd was being sworn in as Prime Minister.

But Rudd did not need to be sworn in as Prime Minister.

Australian Ministers are appointed by the Governor-General under Section 64 of the Australian Constitution, which says simply that the Governor-General has power to appoint Federal Ministers. The Australian Constitution does not expressly mention the position of Prime Minister, but the PM is a Minister and is therefore appointed under section 64. That power of appointment is, of course, exercised in accordance with unwritten conventions. Last Thursday, the Governor-General, Quentin Bryce, exercised this power to appoint Rudd as PM.

The Australian Constitution says that MPs and Senators must take an oath or affirmation of office before taking their seats in Parliament, but it does not say that Ministers have to. The practice of Ministers taking an oath or affirmation of office is just something that has developed. It has no constitutional basis or significance.

So Rudd didn’t need to swear last Thursday. However, as with lots of constitutional issues in Australia, there is a but.

Section 64 of the Australian Constitution says that Ministers must also be members of the Federal Executive Council, which is the body the Australian Constitution establishes to give advice to the Governor-General. It is made up of all Ministers, but it is legally distinct from the Cabinet. Indeed, membership of the Federal Executive Council is for life (unless a member is removed, which is rare). However, only currently serving Ministers participate. This means that Ministers hold three positions: their seat in Parliament, their Ministerial position, and their position as a Federal Executive Councillor.

Section 62  of the Australian Constitution says that Federal Executive Councillors must be sworn in. However, Rudd was not sworn in as a Federal Executive Councillor last Thursday. He had been sworn in to that position following his win at the 2007 election and continued to hold it ever since.

So there was no constitutional need for any sort of swearing by Rudd at all last Thursday.

There is an interesting drafting anomaly in section 62’s requirement that Federal Executive Councillors be sworn in. That section only uses the word ‘sworn’. There is no mention of affirmations. This is different to section 42 of the Australian Constitution, which says MPs and Senators may take ‘an oath or affirmation of allegiance’.

‘Sworn’ is the past participle of ‘swear’, which in its relevant sense – as Wiktionary explains – means to take an oath. In 1744, the English Court of Chancery in a case called Omichund v Barker said that oaths were religious in character and that any person who holds some sort of religious belief may lawfully take an oath. Affirmations are the non-religious alternative to oaths.

If you read section 62 literally it looks like affirmations are not available to Federal Executive Councillors. After all, the Australian Constitution appears capable of providing for both oaths and affirmations when it wants.

However, because of another section of the Australian Constitution it is necessary to give ‘sworn’ a bit of a stretched non-literal meaning. Ssection 116 of the Australian Constitution says that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. As I have explained elsewhere:

religious tests come in many forms. These include a requirement to participate in particular religious practices, a requirement to disclaim belief in a particular religious doctrine, a requirement to take a religious oath of office such that a person must hold some religious belief, a requirement to be or not to be of a particular religious status, as well as a requirement to swear or affirm to particular religious beliefs.

Historically, the requirement to take an oath of office has excluded from public office atheists and others, like Quakers and Moravians, who are not permitted or unwilling due to their religious beliefs from swearing oaths.

A famous British case is that of Charles Bradlaugh. Despite being elected to the House of Commons, Bradlaugh was unable to take up his seat because the law required MPs to take an oath of office and Bradlaugh was an atheist. The matter went to court a number of times. The court held that in the absence of any express legal authorisation affirmations were not available in lieu of oaths and that because Bradlaugh was an atheist he could not lawfully take the oath. After much fuss and a number of by-elections which Bradlaugh kept on winning, the Speaker of the House of Commons allowed Bradlaugh to, unlawfully, take the oath of office and take his seat.

So giving the word ‘sworn’ in section 62 of the Australian Constitution its literal meaning would have the effect of imposing a religious test for the position of Federal Executive Councillor and consequently for membership of the Australian ministry. This means that if section 62 was read literally the woman who replaced Rudd as Prime Minister in 2010 and who Rudd replaced last week, Julia Gillard, an atheist, could never have been Prime Minister.

It follows that the word ‘sworn’ in section 62 must be understood as meaning ‘sworn or affirmed’ in order to avoid a conflict with section 116. This drafting anomaly might be enough to make you swear!

Luke Beck is a PhD Candidate, Postgraduate Fellow and Associate of the Constitutional Reform Unit at the University of Sydney.

Suggested citation: L. Beck, ‘Swear Words and the Australia Constitution’, UK Const. L. Blog (1st July 2013) (available at http://ukconstitutionallaw.org).

2 Comments

Filed under Comparative law

2 responses to “Luke Beck: Swear Words and the Australian Constitution

  1. Australian politics over the last year or so is enough to make all Aussies swear like they’ve never sworn before.

    It’s been an embarrassment from both sides of the House, one which most would rather not have had.

    We lack pollies with any hint of statesmen like qualities.

    This is my cartoon from the week before Rudd took the chair from Gillard. Similar political cartoons nearby . . . . . . .

    http://cartoonmick.wordpress.com/editorial-political/#jp-carousel-740

    Cheers

    Mick

  2. Wolter Joosse

    A Minister of State represents the Crown and must take the oath of allegiance to the Crown. The Crown is not the King. The King however represents the Crown upon accepting on oath and signing the Coronation Covenant, That is to say accepting all its clauses and conditions as codified under the Coronation Oaths Act, 1688. In law the creator always holds sovereignty, It is said that the King is appointed by Almighty God and becomes Viceroy to God, the Creator, as temporal Sovereign. That the king is appointed by God is evident throughout the coronation ceremony that follows oath and the signing of the Covenant, For instance the official title of King George VI was ‘George VI, by the Grace of God King . . . ‘ and the title of Elizabeth is ‘Elizabeth II, by the Grace of God Queen . . .

    The birthright to ascend flows from the First Covenant that God made with David. It only flows from [first born] male heir to male heir pursuant to Jeremiah 33: 20 and 21. A Queen can at best be the spouse of the King. No female can lawfully claim to have an inherent birthright to ascend to the throne.

    Ministers of State are Crown Officers and must take the oath of allegiance to the Crown. It naturally follows that atheists cannot lawfully represent the Crown. You could say that would create a conflict of interest lol. Of course the Westminster system is rife with conflict of interests. Following the elections of Members of Parliament, it has become practice for the temporal Sovereign to appoint the leader of the political party that attracted the most votes Prime Minister. That Minister then elects his cabinet or fellow Ministers of State, who all represent the temporal Sovereign as Crown Officers and same political party.

    However they were appointed to the Parliament by the Electors. Since the Electors created the Members of Parliament those Members became answerable [only] to the Electors who they promised to represent. This means that Ministers of State have an immediately conflict of interest as they purportedly now represent the Crown and the Electors. That is naturally not possible under the separation of powers principles mandated under the Constitution. The Prime Minister’s party won the most seats in the Parliament and thus virtually controls the Parliament by sheer numbers.Members are forced to vote according to ‘party’ line.

    That means that the Crown/Executive can force any Bill it likes through Parliament and in so doing defeat the purpose of Parliament and date its power back to pre 1628.. In 1628, King Charles I had decreed the power to Parliament to consent or reject any of his future laws (Bills). That power cannot exist or be exercised when the Prime Minister rules the Parliament and acts for the Crown. It is also reasonable to suggest that when the elected Members become Ministers of State the people within their electorate are left without [meaningful or real] representation. What happened to democracy?.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s