Oaths and Affirmations of Public Office

Section 42: Oath ‘directory and not absolute’

In September 1901, Attorney-General, Alfred Deakin, advised that, in his opinion, the direction in section 42 of the Constitution, that a member of the federal Parliament ‘shall before taking his seat make and subscribe’ the oath of allegiance, was ‘directory and not absolute’ in the sense that ‘neglect of the requirement does not invalidate what is done afterwards’.”

(see Attorney-General’s Department, Opinions of the Attorneys-General of the Commonwealth of Australia: volume 1, 1901-1914 (1981) 27-8.)

This has been interpreted to mean that the validity of parliamentary proceedings would not be affected by the participation in them of members who had not complied with s 42. Members of the federal parliament do not incur a penalty if they participate in proceedings of the Senate or the House of Representatives without fulfilling the requirement of section 42.

See Research Paper: Oaths and affirmations made by the executive and members of federal parliament since 1901. Deirdre McKeown. (see p. 14 and footnote 51)

Extract from pages 153-6 of “Oaths and Affirmations of Public Office.” Enid Campbell, Emeritus Professor of Law, Monash University:

Legal consequences of refusal or failure to take an Oath or Affirmation

In his General Abridgment of Law and Equity, published in the mid-eighteenth century, Charles Viner wrote:

“A new oath cannot be imposed on any judge, commissioner, or any other subject without authority of parliament, but the giving of every oath must be warranted by act of parliament, or by the common law time out of mind”. 1

This statement was essentially the same as that which Sir Edward Coke had made on the subject in the third volume of his Institutes, first published in 1641. 2 The statement is undoubtedly true of contemporary law. Unless there is a statutory requirement that a person elected or appointed to a public office shall take an oath or affirmation in order to perfect the person’s title to occupy the office, no one has authority to prevent the person entering upon the office without having first taken some oath or affirmation. If the office has been created by or pursuant to statute, the person or body having power to appoint to the office probably cannot even make an offer of appointment conditional on the prospective appointee undertaking to make an oath or affirmation. Such a course of action would hardly be consistent with the statute which confers the power of appointment and which may also have prescribed the qualifications for appointment to the office. The imposition of such a condition is tantamount to an addition to the qualifications for appointment prescribed by statute, and it may fly in the face of a deliberate decision on the part of the enacting parliament not to make a person’s entitlement to occupy a statutory office dependent on his or her having taken any oath or affirmation.

Tasmania’s Promissory Oaths Act 1869 includes a provision taken from s 7 of the United Kingdom’s Promissory Oaths Act 1868. It states that if a person who is required to take an oath under the Act declines or neglects to take the oath when it is duly tendered to him or her, by someone authorised to tender the same, then if he or she has already entered on that office the office is vacated. If he or she has not entered on the office, he or she is disqualified from entering on it. If the declarations required of local government councilors in Queensland and Victoria are not made within a specified time after election, those elected vacate the office. 3 In Western Australia a local government councilor who acts in office without having taken the required oath or affirmation of allegiance and made the required declaration commits a criminal offence. The maximum penalty is a fine of $5000 or imprisonment for one year. 4 This provision is akin to s 5 in the Parliamentary Oaths Act 1866 (UK). This stipulates that if a member of either House sits and votes with- out having taken the required oath within the prescribed time, he or she is liable to a penalty of £500. In addition a member of the House of Commons vacates the seat to which he or she was elected. Under Australian legislation those elected as members of parliament are not entitled to sit and vote in the House to which they have been elected unless they have taken the required oath or affirmation, but they do not now incur any penalties if they do sit and vote without having fulfilled that requirement.

In September 1901, Alfred Deakin, in his capacity as Attorney-General for the Commonwealth, advised that, in his opinion, the direction in s 42 of the federal Constitution that a member of the federal Parliament “shall before taking his seat make and subscribe” the oath of allegiance was “directory, and not absolute” in the sense that “neglect of the requirement does not invalidate what is done afterwards”. 5 Deakin presumably meant no more than that the validity of parliamentary proceedings would not be affected by the participation in them of members who had not complied with s 42. In practice, of course, responsibility for enforcing s 42 rests in the hands of the presiding officers of the two Houses. 6

Where the making of an oath, affirmation or declaration is a condition which must be satisfied before a person can be regarded as the lawful occupant of a public office, and thus entitled to exercise the powers given to occupants of that office, then logically it would seem to follow that no legal force or effect can be accorded to the acts of persons who have presumed to exercise the powers of office without having taken the prescribed oath, affirmation or declaration.

But under the common law of England and of legal systems derived from it such acts may be recognised as legally valid by virtue of the de facto officer doctrine. Such acts may be so recognised if they are acts which would have been valid had they been performed by an officer de jure and if the defect in the title of the person who has performed the acts is not readily discoverable by members of the public. 7

Should the defect in title be failure to take the requisite oath or affirmation it will seldom be that it is one which is readily discoverable. It is certainly not reasonable to expect members of the public who have occasion to seek the exercise of powers attached to a particular public office to make inquiries to satisfy themselves that the person held out to be the lawful occupant of the office has taken the requisite oath or affirmation of allegiance or office.

In a case decided in 1676 the Court of King’s Bench held that the de facto officer doctrine could not be invoked to validate the decision of someone who had failed to satisfy the oath-taking requirements imposed by the Test Act 1672. 8 Later judges were to pronounce this ruling to be wrong 9 and there are nineteenth century decisions in which English courts clearly accepted that the de facto officer doctrine could apply in cases in which someone had failed to swear a prescribed oath of office. 10

Breach of Oath or Affirmation

Breach of an oath or affirmation of allegiance, or of an official oath or affirmation, is not of itself a crime though the conduct which constitutes the breach may attract criminal liability. For example, someone who has violated the oath or affirmation of allegiance may have done so by reason of conduct which amounts to treason or sedition.

Should a member of parliament violate the oath or affirmation of allegiance he or she may thereby become disqualified from sitting and voting as a member and may incur monetary penalties recoverable in a court of law. All Australian constitutions (or other legislation on membership of Houses of parliament), except Victoria’s, include a provision similar to s 44(i) of the federal Constitution. It declares that:

“Any person who –

(i) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power;

. . shall be incapable of being chosen or of sitting as a senator or a member of the House of representatives.” 11

Should the conduct which is in violation of a member’s oath or affirmation of allegiance have attracted criminal liability and sentence, then again the member may thereby have become disqualified from sitting and voting. 12

The Houses of the Australian State parliaments 13 and until 1987 the Houses of the federal Parliament also, could simply expel one of their members adjudged by them guilty of breach of the oath or affirmation of allegiance.

The motion of Prime Minister WM Hughes in 1920 that the member for Kalgoorlie, Hugh Mahon, be expelled from the House of Representatives, on account of his seditious and disloyal utterances, asserted also that Mahon had violated the oath of allegiance. The motion was carried and the member’s seat was declared vacant. 14

Section 8 of the Parliamentary Privileges Act 1987 (Cth) removed from the Houses of the federal Parliament their power to expel members. The statute which creates a public office will often limit the grounds on which occupants of the office may be suspended or removed. Although breach of the oath or affirmation of office taken by the office-holder would not of itself be such a ground, conduct which does constitute a ground for suspension or removal could also be in violation of the oath or affirmation.

The misbehaviour on the part of a judge which is claimed to be the cause for his or her removal from office could, for example, be conduct in breach of the judicial oath of office. Judges who have committed themselves under oath or affirmation to uphold a particular constitution may consider it in breach of that oath or affirmation to accord legal validity to the acts of government which has effectively overturned that constitution by revolutionary means. In such a situation some judges may take the view that their proper course is to resign from office. 15

Click to access oaths.pdf

Click to access e.-campbell.pdf

Nibbs v Devonport City Council [2015] TASSC 34 16 considered whether a Magistrate had authority to hear case if not correctly sworn into office, and whether it invalidates judicial oaths or affirmations, oaths or affirmations of allegiance and oaths or affirmations of office. It was held that the Governor and Magistrate had been correctly sworn, and additionally, the judge also relied on the presumption of regularity and de facto officer doctrine.

The presumption of regularity

“The principle commonly known as the ‘presumption of regularity’ is that where the exercise of a power or the performance of an act by a public officer or public authority is proved, it will be presumed that the preconditions to the lawful exercise of that power or performance of that act have been met.”

McLean Bros & Rigg Ltd v Grice [1906] HCA 1(1906) 4 CLR 835 at 560. 17 Relevant to this case, in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, McHugh JA at 164 said: 18

“Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office.”

(M’Gahey v Alston [1836] EngR 150; (1836) 2 M & W 206 at 211; 19 [1836] EngR 150; 20 150 ER 731 at 733; 21 R v Brewer [1942] HCA 33; 22 (1942) 66 CLR 535 at 548; 23 Hardess v Beaumont [1953] VicLawRp 46; 24 [1953] VLR 315 at 318-319.) 25

The de facto officer doctrine

The second answer is that in any event, the doctrine known as the ‘de facto officer doctrine’ would undoubtedly apply. G J Coles v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 per McHugh JA at 515: 26

“The acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office. It matters not that his appointment to the office was defective or has expired or in some cases even that he is a usurper.”

As his Honour demonstrated in his analysis in that case, and as demonstrated in the discussion by Crawford J (as he then was) in Official Trustee v Byrne [1989] Tas SR 1 at 13-15, 27 the principle applies to judicial officers.

The three conditions necessary for the operation of the doctrine apply in this case. The office of a magistrate is one which existed in law. The acts of the magistrate in hearing and determining the application for summary judgment were within the scope and authority of the office of a magistrate. Lastly, the doctrine should properly be applied in the public interest: see generally Jamieson v McKenna [2002] WASCA 325 at [13]- [14].” 28

Click to access nibbs-v-devonport-city-council-2015-tassc-34.pdf

A ‘ceremonial but not a legal sense’

Extract from Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116; [1999] 3 VR 36 (from 17):

As Street, C.J. Said in Re Howard [1976] 1 N.S.W.L.R., 641 at 646:-

“The taking of the oath of allegiance in association with admission to practice is part of the formal ceremony attendant thereon, but the law is clear that the bond of allegiance exists at common law, independently of whether the oath be taken or not.

The formal taking of the oath has significance in a ceremonial, but not a legal, sense.

It is customary, on admission ceremonies, to remind those newly admitted that the significance of the oath is that the Sovereign represents the fountainhead of law and justice – the oath is a pledge of service to the symbol of law and justice .”

And in Miller, at 383, Young, C.J. said:-

“But it remains important that a candidate for admission should take an oath of allegiance to the Sovereign. Parliament has provided that it is one of the essential prerequisites for admission to practise. In so providing Parliament has required a candidate for admission to do what every high office holder in this State does upon his assumption of office. The provision is thus a recognition by Parliament of the importance attaching to admission to practise as a barrister and solicitor.”

The thrust of these passages remains, I think, relevant, notwithstanding that it is now the Rules of Court, rather than Parliament itself, which impose the obligation to take the oath of allegiance, and also that various governments may have in cases such as the adoption of Australian citizenship substituted a pledge of loyalty to Australia for the oath of allegiance to the Sovereign. Ms Ryan, who appeared for the Board of Examiners, submitted that a duty of allegiance is owed to the Sovereign by all those resident within her realm whether or not an oath of allegiance is taken; Joyce v. DPP [1946] A.C. 347 at 366 and 374; Howard at 645-646; and Nicholls v. Board of Examiners [1986] V.R. 719 at 729-730. As the judge put it in paragraph (22) of his reasons, the requirement that the appellant take an oath of allegiance as a condition of being admitted to practice is nothing more than a recognition of that duty. The concept of allegiance was discussed, and the reciprocal nature of the rights and obligations involved was explained, by Ormiston, J. in Nicholls at 728. 29

Click to access moller-v-board-of-examiners-for-legal-practitioners-1999-vsca-116-1999-3-vr-36.pdf

The removal of references to the Queen

A popular contention held by OPCA adherents in Australia is that judgments are void because certain legislation governing the states courts and legal practice contain an oath to the people of the State, rather than to the Queen. One example is in Western Australia, regarding the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), 30 and another example is in Victoria, where the Oath of allegiance was no longer required due to section 3 of the Courts and Tribunals Legislation (Further Amendment) Act 2000 (Vic) 31 amending section 6(1)(c) of the Legal Practice Act 1996 (Vic).

Extract from Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578: 32


“The time has arrived for people who consider that this is a constitutional issue of some moment to appreciate that the courts have long since discredited the theory. Nonetheless it continues to be advanced from time to time, as it has been by the respondent debtor on this occasion.

Most recently, as counsel for the petitioning creditor submits, McKerracher J in the Federal Court disposed of the same argument in the recent application brought by the respondent debtor in October 2016. See Culleton [2016] FCA 1193. 33

All previous attempts to raise this issue have equally been rejected as without any legal merit. See Shaw v Jim McGinty in his capacity as Attorney General & Anor [2006] WASCA 231 34  upholding Shaw v Attorney General for the State of Western Australia & Anor [2005] WASC 149; 35  Glew & Anor v Shire of Greenough [2006] WASCA 260; 36 Glew v The Governor of Western Australia (2009) 222 FLR 416; [2009] WASC 14. 37

In Glew v Shire of Greenough, Wheeler JA (with whom Pullin and Buss JJA agreed) observed, at [17] and [18], that 2003 State legislation bringing about the change in terminology did not effect any change to constitutional reality. It did not attempt to alter the relationship between the Crown and the various bodies contained within the Acts amended. Her Honour said:

“There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty. Further, the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 are consistent with constitutional reality”.

I accept the submission made on behalf of the petitioning creditor that the contentions made by the respondent debtor are seriously flawed and the matters upon which he relies have no effect on the judgment obtained by the petitioning creditor in 2013 in the District Court of Western Australia; or the decisions of the Western Australian Court of Appeal made thereafter. The judgment is enforceable against the respondent debtor, despite the discredited theory being advanced yet again.”

The case also extrapolates on the different oaths taken by judges in the courts of different jurisdictions.

Click to access balwyn-nominees-pty-ltd-v-culleton-2016-fca-1578.pdf

Extract from TM Fresh Pty Ltd [2019] VSC 383: 38

“Firstly, Mr Margheriti has repeatedly requested that the solicitors and counsel for Mr Tripodi produce certificates under s 88 of the Imperial Acts Application Act 1922 (Vic) to establish that they have taken an oath of allegiance, are admitted to practise and are entitled to represent their client in Court…. This argument is, with respect, misconceived. Section 88 of the Imperial Acts Application Act 1922 (Vic), has long been repealed.”

 “…The provision was repealed in 1928 by s 2 of the Legal Profession Practice Act 1928 (Vic) and the schedule to that legislation. A similar provision was then inserted into s 5(2) of the Legal Profession Practice Act 1928 (Vic) and subsequently s 5(2) of the Legal Profession Practice Act 1958 (Vic). Stylistic changes to the relevant provision were then made in the form of s 5(1)(c) of the Legal Practice Act 1996 (Vic).

However, as a consequence of an amendment made by s 3 of the Courts and Tribunals Legislation (Further Amendment) Act 2000 (Vic) to 6(1)(c) of the Legal Practice Act 1996 (Vic), it is clear that an oath of allegiance to the Queen is no longer required. The requirements for admission to practice are now contained in s 16(1)(c) of Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).”

The terminology which refers to the Crown or to her Majesty has altered, quite logically, due to the divisibility of the Crown, a principle that was recognised at the Imperial Conferences, starting with the Balfour Agreement 1926, and brought into law with the Statute of Westminster 1931 which was adopted in Australia in 1942. The British Empire collapsed and each executive government of the former dominions had by default a Crown that was “an entirely different and distinct legal personality” from the Crown of England. Gaudron J. found this notion to be “implicit in the Constitution.” in Sue v Hill [1999] HCA 30, the case also details how the expression “the Crown” is used in constitutional theory. See also Re Patterson [2001] HCA 51. with regards to the subsequent interpretation of section 117 of the Constitution. The divisibility of the Crown has been upheld by the UK High Court in R v. Foreign Secretary ex parte Indian Association of Alberta [1982] 1 QB 892 and in relation to Australia in Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch).

The decision in Re Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 established the rule that a natural born subject becomes an alien when the sovereign ceases to have dominion over the territory in which the person resides. Lord Coleridge CJ said (at 65-66): “…as the statutes referred to the Crown and not the sovereign, allegiance was due to the King in his politic, and not in his personal, capacity.” In relation to this case, on page 386 of “Constitution of New South Wales“, Anne Twomey notes that “As the body politic was a creation of law, then allegiance could be changed by a law-making authority.” This case is also reviewed in Singh v Commonwealth of Australia [2004] HCA 43, in relation to the definition of allegiance.

The body politic that is the Crown in relation to Australia is the people of Australia, and it is represented by the Queen of Australia, a point highlighted by Wheeler JA in Glew & Anor v Shire of Greenough [2006] WASCA 260 (from 16), that the change in terminology is entirely consistent with constitutional reality.

“This ground is concerned with the passage of the abovementioned 2003 Act. It is contended by the appellants that the Local and District Courts of Western Australia do not have lawful authority to administer law within the State since the passage of that Act. The concern appears to be that the Act has “removed Her Majesty and the Crown” from a large number of Acts within Western Australia, including the District Court of Western Australia Act 1969 (WA) and the Local Courts Act 1904 (WA).

The Act referred to changes the terminology in a large number of statutes of Western Australia. In broad terms, references to the Crown or to her Majesty are changed to references to the Governor or the State. The first observation to be made about the Act is that it purports to change terminology only, not constitutional reality. That is, it does not attempt to alter the relationship between the Crown and the various bodies contained within the Acts amended.

There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty. Further, the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 are consistent with constitutional reality. The Governor is, for constitutional purposes, effectively the Queen’s representative in Western Australia (s 50 State Constitution) and so is, for practical purposes, “her Majesty” within Western Australia. The “State” is simply another way of referring to the executive power of the Crown in right of the State of Western Australia. Parallel terminology can be found in the Commonwealth Constitution. For example, although the Commonwealth Constitution provides, by s 61, that the executive power of the Commonwealth is “vested in the Queen and is exercisable by the Governor-General as the Queen’s representative”, a number of sections of the Constitution refer simply to “the Commonwealth” as a shorthand expression for the entity exercising that executive power. A striking example is s 119, which provides that “the Commonwealth shall protect every State against invasion … “.

As is explained in a text book popular in constitutional law courses: (Hanks & Cass, “Australian Constitutional Law: Materials and Commentary”, 6th ed (1999) at [7.1.6]):

“When we talk of the Crown in the context of Australian government in the late twentieth century, we refer to a complex system of which the formal head is the monarch. We do not refer to a replica of sixteenth century English government, where real power was vested in and exercised by the monarch personally. Rather, we mean that collection of individuals and institutions (Ministers, public servants, a Cabinet, the Executive Council, a Governor or Governor-General, and statutory agencies) which exercise the executive functions of government”

The Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 effects no constitutional alteration. Even if it did, and even if it did so invalidly, the consequence would not be that the Courts suddenly lacked jurisdiction. The only consequence of that Act having been passed in a manner which was constitutionally invalid, would be that the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003, or portions of it, would be invalid and that the Courts and bodies in relation to which it purported to amend terminology continued to function, but under the former terminology.”

Click to access glew-v-shire-of-greenough-2006-wasca-260.pdf

The removal of references to the Queen has been contended in many cases, you can locate them on this website under the Tags “The Removal of the Crown” and “Oaths of Office“.