It 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).