|
|
|
LETTER TO THE HON PHILIP RUDDOCK MP, ATTORNEY-GENERAL OF AUSTRALIA THE LOSS OF THE OATH OF ALLEGIANCE TO THE QUEEN IN NEW SOUTH WALES & OTHER STATES THE AUSTRALIAN MONARCHIST LEAGUE V THE STATE OF NEW SOUTH WALES
THE LOSS OF THE OATH OF ALLEGIANCE TO THE QUEEN IN NEW SOUTH WALES & OTHER STATES The moves by the State Labor (Republican) Governments to remove the Oath of Allegiance to The Queen are morally, if not legally, unconstitutional. The current Oath in New South Wales for all Members of the Parliament is to: "be faithful and bear true allegiance to Her Majesty Queen Elizabeth, Her Heirs and Successors according to law. So help me God." This inviolate Oath is taken not just to The Queen as a person, but to the institution of Government under The Crown, binding Members of the Parliaments to protect all tenets of our constitutional democracy. The proposed Pledge, which is not an Oath, of: “loyalty to Australia and the people of NSW” is essentially meaningless as it does not bind the Parliamentarians in the same manner as the current constitutional Oath does. Given the fact that the people voted in a referendum just six years ago, it is strange that politicians are now wanting to be 'loyal' to the people by rejecting out of hand decision of those very people to retain our Constitutional Monarchy! The fact that the NSW Constitution Act empowers the Legislature to alter the Constitution without the requirement of a referendum, does not absolve the Parliament from their responsibility to seek a special mandate from the people on this issue. In the light of the recent atrocities in the United Kingdom and elsewhere, much is now being made by some members of the Muslim Community of the disparity between fundamental Islam and our way of life in Australia. We are essentially a Christian secular society and it is our secularity that Muslims oppose. Islam has no “Render unto Caesar what is Caesar’s and to God what is God’s.” A Society such as ours thrives on the example given to us by our political leaders. However what sort of example is given when those same leaders admit to perjuring themselves when swearing the Parliamentary Oath of Allegiance to The Queen. In the New South Wales Parliament one MP actually stated that: “taking oaths of loyalty to take public office after an election as it stands today is totally irrelevant” and that: “there was no value or sincerity in my signature” and when asked” “Did you perjure yourself?” replied: “Yes, quite simply, of course I did. That is why we are changing the Constitution!” (Hansard Legislative Assembly 07/04/2005) These astounding admissions occurred during the debates in the New South Wales Parliament on the recent Constitutional Amendment (Pledge of Loyalty) Bill where Members of the Government are removing the inviolate Oath of allegiance to The Queen, which is to The Crown committing the swearer to protect our institutions of Law and Government, and replacing it with a simple (apparently non binding) pledge of loyalty to the people! What chance is there to persuade young people, whether Muslim or not, to honour our country and its democratic institutions when our own politicians have totally disregarded the vote of the People in the 1999 Constitutional Referendum and so divisively put their own republican beliefs and political ambitions before that of our Constitutions and systems of Government?
The Australian Monarchist League v The State of New South Wales A Paper on challenging State legislation to remove Allegiance to The Queen by Philip Benwell MBE National Chairman Australian Monarchist League
The Australian Monarchist League entered the republican debate nearly fifteen years ago. We did so specifically to defend the integrity of The Crown and since that time we have never, ever, wavered from that purpose. We have always stated that The Crown is the very essence of our Constitutional Monarchy and should it ever be removed, we would then become a republic.
Due to our success in having elected delegates of the League at the Constitutional Convention we had expected to be given places on the Government funded and appointed Official No Case Committee and had nominated two of our delegates, Brigadier Alf Garland (since deceased) and Dr. David Mitchell, whom we knew would present a proper explanation of the role of The Crown in our Constitution. However possibly for this reason and because we refused throughout to accept the inclusion of Direct-Election Republicans as equal members, these distinguished Monarchists were rejected and several republicans were appointed to the Committee which had control of the entire Taxpayer funded budget of $7.5 million.
However, we continued as best we could, left to fund our own campaign but refusing always to adulterate our views. We believed that the strategy of opposing just one republican model and avoiding any true explanation of the role of The Queen and The Crown in our Constitution, would enable republicans to dismiss the vote of the people on the basis that they, the electorate, would have voted for the ‘direct election’ model. Pitting one model against another is one thing. To form a coalition with ‘Direct-Election’ Republicans was we believed repugnant to our cause.
The ‘No Case’ advertising campaign concentrating on the phrase ‘Vote no to this Republic’ is typical of this faulty strategy.
We rejected this politicking, for we always believed in the capacity of the Australian voter to make the right decision when faced with the true facts and knew that given the choice between The Queen and the sort of political president republicans would have us have, the majority of Australians would always choose The Queen, which is what they did so resoundingly.
The blame for the continuation of the republican debate clearly lies at the feet of those who developed and promoted this one-sided strategy for it is that and that alone which has given to Republicans and particularly to republican politicians the belief that the decision of the people was simply a vote against the one ‘this’ model and that the request for people to: ‘Vote no to this Republic’ was itself tantamount to an invitation to campaign for a ‘direct election’ republic.
We are indeed fortunate that the Prime Minister has made it clear that the people have made their decision and that is an end to the matter, but republican Labor governs in all six States and have since been working assiduously to introduce a republic by stealth. To achieve their objective they must first remove the constitutional requirement of allegiance to The Queen.
They must do this because Allegiance is a serious undertaking for it is not simply to The Queen as a person, but to The Crown which is the system of government encompassing the Constitution, the laws of the land, those who protect and defend, and above all the people as a whole. The Oath to The Queen also embraces the Coronation Oath taken by Her Majesty, which is: “to govern the People .. according to their respective laws and customs”.
Under our Federal Constitution, the former Australian Colonies agreed to unite in one indissoluble Federal Commonwealth under the Crown and became States within the Federation maintaining a control over certain areas not designated in the Federal Constitution with independently elected Parliamentary systems based on the Principle of the three tiers of Parliament of The Sovereign, an Upper House (of Review) and a Legislative Chamber. (Only Queensland now differs as it abolished the Upper Chamber in 1922.)
The States together with the Federal Government are established ‘under The Crown’ with each of their Acts requiring Royal Assent, with all laws carried out in the name of The Queen and all courts administering justice in the name of The Crown and regardless of whatever any Member of any Parliament may individually claim, The Sovereign, who is The Queen, remains the living symbol of the State.
The Constitution of New South Wales dates from an 1855 Act of the Imperial (British) Parliament.
Following Federation it was rewritten into the Constitution Act of 1902 of which Section 12 requires that a Member of the Legislative Council or the Legislative Assembly is not permitted to sit or vote until the Member has taken an oath or affirmation of allegiance to the Queen and her successors in the form prescribed by the Oaths Act 1900.
Section 4 of this Act specified that: “The form in the Second Schedule shall, subject to section 6, be the form of oath of allegiance taken by all persons liable to take the said oath” and Schedule 2 states: “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.” Under Section 6: “The name of the Sovereign of the United Kingdom of Great Britain and Ireland shall be substituted in the said form from time to time instead of the name of Her Majesty.”
In May 2004, the Member for Liverpool, Mr Paul Lynch MP, moved a Private Member’s Bill which he termed: the ‘Constitution Amendment (Pledge of Loyalty) Bill 2004’. This proposed legislation will:
replace the oath of allegiance to the Queen with a pledge of loyalty to Australia and to the people of New South Wales, and:
replace the oath of service to the Queen and the Executive Councillor’s oath with a single oath that combines a promise (not an Oath or affirmation) to perform the functions and duties of an Executive Councillor faithfully and to the best of the person’s ability with the traditional Executive Councillor’s oath to give advice and counsel to the Governor and to maintain the confidentiality of matters debated in the Council.
The Bill is awaiting its Second Reading in the Legislative Council where the Government appears to have the numbers to ensure its passage.
The Preamble to the Australian Constitution, which is our document of Federation, creates an indissoluble union under The Crown: “Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.”
Section 2 makes it clear that: “The provisions of this Act (An Act to constitute the Commonwealth of Australia [9th July 1900 - UK]) referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.”
Section 42 requires all Members of the Senate and the House of Representatives to swear allegiance to The Queen: “Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.”
The schedule states: “I, A.B., do swear (or do solemnly and sincerely affirm and declare) 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!)”
These provisions set down in the Australian Constitution are the Law of the Commonwealth of Australia.
At the heart of our system of Constitutional Monarchy is the doctrine of parliamentary sovereignty under The Crown. This applies to both the Federal Constitution and to all six State Constitutions.
Whilst the Federal Constitution, including the Oath of Allegiance, cannot be amended in any way without the consent of the people at Referendum, the Constitutions of all six Australian States, other than certain areas specified by individual Acts, can be amended by an ordinary Act of the relevant State Parliament.
However Sections 108 and 109 of the Federal (or Commonwealth) Constitution stipulate that:
“Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State. (109): When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
The proposed Legislation, the ‘Constitution Amendment (Pledge of Loyalty) Bill 2004’, seeks to amend not just the Constitution of New South Wales, but also a law of the State, i.e. the Oaths Act 1900.
Whilst the Federal Parliamentary Oath of Allegiance under Section 42 of the Australian Constitution applies only to Senators and Members of the House of Representatives, and there is no express application of it to members of a State Legislature, the States did agree to: “unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established”.
Therefore, if a State law is purportedly amended to end oaths of allegiance to the Crown referred to in the Preamble, while the indissoluble Commonwealth united under the Crown continues to require oaths of allegiance to that Crown, the purported amendment to State law is, arguably, incompatible with the Preamble which remains part of Australian law and under Section 109 of the Australian Constitution: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
However to take this matter any further would require a legal challenge immediately following Assent.
Under our Constitution the Governor must Assent to any act of a Parliament lawfully elected by the people unless it is in direct contravention to the Constitution (in this case of NSW). Our proposal is ‘arguable’ and must therefore be tested in the Courts. Therefore, once the Bill has become a statute, it would be necessary to commence legal proceedings in the Supreme Court of New South Wales seeking a declaration that the amendment is not part of the law of New South Wales, with a view to arguing the matter in the High Court.
I have sought the informal advice of Mr Leolin Price CBE QC, a distinguished constitutional lawyer in the United Kingdom and a Queen’s Counsel in Australia. Mr Price has written: “My experience in June 2003 suggests that the High Court will dislike being faced with questions about the legislative competence of State or Commonwealth legislatures or Parliament and might try to avoid delivering a reasoned judgment. But the disparity, the incompatibility, between the amended State law and the law of the indissolubly united Commonwealth creates a special situation in which weight should be given to the countervailing notion of avoiding such inconsistency and incompatibility with the Commonwealth Constitution. The Courts, and ultimately the High Court, must act as guardians and protector of the Constitution and the Law.”
It is therefore utterly ironic that we, who so avidly defend The Crown, are placed into the position of contemplating action against The Crown, but, of course, in the capacity of the State of New South Wales!
These are weighty matters indeed requiring careful consideration for the expenses and costs of the proceedings and more importantly, the financial consequences of potential liability for the respondents’ costs should we not succeed, would be extremely onerous, as I had found out to my personal financial cost in 1999 when the taxpayer funded No Case Committee rejected our request to take legal action regarding the acceptance by the Australian Electoral Commission of various markings in place of a simple ‘yes’ or ‘no’ and it was left to me alone to do so.
However a Declaration that the amendment removing the Oath to The Queen in New South Wales was illegal would obviously apply to all the other five States, enshrining Allegiance to The Crown in the State Parliaments until and unless the people of Australia, not just politicians in any State, agree to constitutional change. Our duty is to defend and promote The Crown in our Constitution. The onus is therefore on us to fight this perfidious legislation.
Philip Benwell MBE National Chairman Australian Monarchist League
October 2005
LETTER TO THE HON PHILIP RUDDOCK MP, ATTORNEY-GENERAL OF AUSTRALIA
12 December 2005
The Hon. Philip Ruddock MP Attorney General Parliament House Canberra ACT 2600
We are extremely concerned at
certain comments made in an article attributed to you published in The
Australian on the 8th December 2005: "In other words there is
no offence of bringing the sovereign into hatred or contempt. There is no
offence of urging disaffection against the Constitution or either house of
parliament."
We are the first to acknowledge that our system of Government under a Constitutional Monarchy enables a freedom of speech and peaceable expression, even to the extent of politically agitating for the removal of The Crown, a liberty unknown in most other nations.
However the harsh words: "hatred or contempt" surely extend the limits of freedom of speech, or even "disaffection", and your use of these words in this manner could well encourage those who did not accept the will of the people at the 1999 Referendum to go beyond political action and even verge on insurrection! Many Australians, including Members of the Federal and State Parliaments, are required by law to swear or affirm allegiance to The Queen. Are you also implying that such persons may lawfully bring The Queen into "hatred or contempt" and continue to serve in their office without any penalty whatsoever?
Philip Benwell National Chairman |
