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Oaths+of+Allegiance+Bill+2011+E-brief.pdf

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February 2012 e-brief 4/2012 Page 1 of 15 The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011: background and commentary by Gareth Griffith 1 Introduction On 11 November 2011 the Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011 [the Restoration of Oaths of Allegiance Bill] was introduced in the Legislative Council, sponsored by the Reverend the Hon Fred Nile. The Second Reading speech fo
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    February 2012 e-brief 4/2012 Page 1 of 15 The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011: background and commentary by Gareth Griffith 1 Introduction On 11 November 2011 the Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011 [the Restoration of Oaths of Allegiance Bill] was introduced in the Legislative Council, sponsored by the Reverend the Hon Fred Nile. The Second Reading speech for the Bill explained: The object of the bill is to amend the Constitution Act 1902 to give a member of the Legislative Council, the Legislative Assembly or the Executive Council the option of taking or making an oath or affirmation of allegiance to Her Majesty Queen Elizabeth II, her heirs and successors as an alternative to the pledge of loyalty to  Australia and the people of New South Wales. Taking the pledge of loyalty is currently required before a member of Parliament can sit or vote and before a member of the Executive Council can assume office. It was also explained that: This bill also makes it clear that a member of Parliament who has taken or made an oath or affirmation of allegiance does not have to take or make a further oath or affirmation in the event of the demise of the Crown. The Restoration of Oaths of Allegiance Bill passed the Legislative Council without amendment and was sent to the Assembly for concurrence on 24 November 2011. The purpose of this e-brief is to set out the background to the 2011 Bill and to comment on its provisions. Brief comparison is also made with other  Australian jurisdictions. 2 The current position  At present, ss 12 and 35CA of the NSW Constitution Act provide that both members of the NSW Parliament and members of the Executive Council respectively must take a pledge of loyalty in the following form: Unto God, I pledge my loyalty to  Australia and to the people of New South Wales. Note that, where an affirmation is made, the words Unto God may be omitted. In respect to Members of Parliament only, s12(4) expressly states that:  NSW Parliamentary Library Research Service Page 2 of 15  A Member is not required, despite any other Act or law, to swear allegiance to Her Majesty Queen Elizabeth II or her heirs and successors before sitting or voting in the Legislative Council or the Legislative Assembly. In addition to taking the pledge of loyalty an Executive Councillor must also take an oath or affirmation of office, as set out in s 35CA(4). 1   3 Historical note on the parliamentary oath It is sometimes assumed that the parliamentary oath of allegiance is feudal in srcin. That is not the case. Its srcins are in fact religious and political, a product of: the Protestant Reformation of the 16 th  century; the Civil War of the mid-17 th  century and of the Restoration of the Stuart monarchy that followed; and of the succeeding Glorious Revolution , which saw Catholic James II replaced by Protestant William and Mary. 2  It seems that a specific oath for Members of the House of Commons was not required until 1563, in the form of an oath of supremacy  . Wilding and Laundy describe this as: a repudiation of the spiritual or ecclesiastical authority of any foreign prince, person or prelate, and of the doctrine that princes deposed or excommunicated by the Pope might be murdered by their subjects. 3   Following the Gunpowder Plot of 1605, an oath of allegiance was introduced, but this was not strictly a parliamentary oath, as it was not taken in Parliament. Only with the Restoration of the monarchy were oaths of supremacy and allegiance  imposed on Members of Parliament and Peers, under the terms of the Parliament Act 1678  , this time in response to the false allegations made by Titus Oates of a Catholic conspiracy to assassinate Charles II.  As revised in 1689 the oath of allegiance was a declaration of fidelity to the Sovereign in a recognisably modern form: I A.B. do sincerely promise and swear, That I will be faithful, and bear true Allegiance to Their Majesties King William and Queen Mary, so help me God. By the  Act of Succession 1701 , after the French King had proclaimed the son of James II to be the rightful heir to the British throne, an oath of abjuration  was added, pledging support for the exclusion of the Stuarts and for the maintenance of the Protestant succession. Each oath was therefore directed against a specific perceived political threat and, prior to 1831, had to be made before the Lord Steward before entering the Parliament House . 4  During the 19 th  century various statutory exceptions were made, for Catholics, Quakers, Moravians and Jews. For example, the Roman Catholic Relief Act 1829  provided for a special oath deemed acceptable to Roman Catholics. But not until 1858 did a single parliamentary oath emerge in place of the former three. By 1868 this had been revised, shorn of its religious content, making it similar in form and content (if not in srcin) to the feudal oath of allegiance. 5  While a specific right to make an affirmation was granted by statute to such groups as Catholics and Quakers, a general right to make an affirmation was not introduced until the passing of the Oaths Act 1888  . This followed the controversy attending the  E-Brief The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011: background and commentary   Page 3 of 15 election of the atheist Charles Bradlaugh to the House of Commons. 4 New South Wales 4.1 Before 2006 From the start of responsible government in 1856 6  until 2006, in order to sit and vote members of both Houses of Parliament were required to take the oath of allegiance to the Crown. 7  Under s 33 of the Constitution  Act of 1855, which included provision for the demise of the sovereign, the oath was in this form: I…do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria as lawful sovereign of the United Kingdom of Great Britain and Ireland and of this colony of New South Wales dependent on and belonging to the said United Kingdom. So help me God. By s 34 of the same Act an affirmation could be made by every person authorized by law to make an affirmation instead of taking an oath  After federation, when the NSW Constitution Act was revised in 1902, the requirement to take the oath of allegiance was continued under section 12 of the Act, only now the form of the oath of allegiance was set out in the Oaths Act 1900  , as follows: I…,do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her Heirs and Successors according to law. So help me God. 8   Section 12 of the Constitution Act included provision for the making of an affirmation, using the same from of words as the 1855 Act. Provision was also made for the demise of the sovereign. The only substantive amendment to the section over the next century was in 1936, to take account of the abdication of Edward VIII: In this section the word demise   shall include abdication. 4.2 The Oaths and Crown References Bills 1993 and 1995 In 1993, and again when in government in 1995, Bob Carr introduced Bills to amend the oath of allegiance. In Opposition, Carr sponsored a Private Member's Bill  –  the Oaths and Crown References Bill 1993  –  which, among other things, sought to replace the existing oath of allegiance, which was described as an anachronism , 9  with an oath in the form of a pledge of loyalty that declared: Under God I pledge my loyalty to  Australia. Provision was also made for the making of an affirmation, in these words: I pledge my loyalty to Australia. The 1993 Bill did not proceed beyond the Second Reading stage. In the first days of his Government, Premier Carr introduced the Oaths and Crown References Bill 1995, which was in similar terms. 10  The Bill passed through the Assembly but stalled at the First Reading stage in the Council. 11  The Second Reading speech described the changes proposed by the Bill as symbolic rather than constitutional in nature , but significant nonetheless as focusing on what it means to be Australian . The oath of allegiance existing at the time was said to be altogether inadequate as a definition of loyalty in Australia in the 1990s . It was further argued that the  NSW Parliamentary Library Research Service Page 4 of 15 concept of allegiance implied in that oath was an anachronism , to be replaced by a pledge of loyalty. In the Second Reading speech a distinction was noted between the proposed pledge of loyalty, which would have applied to members of Parliament, 12  and the proposed oaths of office taken by the Governor, Executive Councillors, judicial officers and police officers: the first refers to Australia, the latter to New South Wales: that is, one declares one's loyalty to Australia, but one's service and duty is to the people of New South Wales. 13   In respect to the Bill's proposed pledge of loyalty to Australia , Twomey commented on the jurisdictional differences that would have to be resolved if the Queen or the Crown were removed from our constitutional system. According to Twomey: In choosing Australia , the government was concerned that the concept of allegiance is one that relates to a nation, but not to a sub-national entity. One reason for this is that allegiance involves reciprocal duties, including a duty of protection in matters such as defence, external affairs and citizenship, which is more relevant to the national level of government. Further, Australia encompasses the State as well as the nation and the Queen. A proposed amendment to change the oath to one of loyalty to New South Wales was rejected by the government . 14   4.3 Constitution Amendment (Pledge of Loyalty) Act 2006 The current position was established under the Constitution Amendment (Pledge of Loyalty) Act 2006  , by which a pledge of loyalty to Australia and to the people of New South Wales was introduced. This legislation was initiated in the form of a Private Member's Bill,  sponsored by Paul Lynch in the Legislative Assembly, where it was introduced on 6 May 2004 but not debated and passed until 7 April 2005. On the same day the Bill received its First Reading in the Legislative Council, but again debate was delayed, with the Second Reading only occurring in early March 2006. The Bill finally passed the Third Reading stage in the Upper House without amendment on 7 March 2006, 21 votes to 14. 15  Introducing the 2006 Bill in the  Assembly, Mr Lynch noted that, unlike the 1993 and 1995 Bills, the current proposal made reference to the people of New South Wales and not  just to Australia . The pledge, it was said, was neither: monarchist nor republican: the pledge is about democratic theory and about accepting that our real legitimacy comes from Australia and from the people of New South Wales. 16   The purpose of the Bill was said to replace a largely meaningless oath with a declaration expressing where sovereignty actually resides . The Second Reading speech stated: 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 his State. Presently, members state their allegiance to a head of State. That seems to me to have the priorities wrong. Our allegiance is not to a head of State, or even to the State itself, but to the people who elect us and whom we represent.
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