No Australian should swear loyalty to a foreign king

Oct 31, 2024
Australian senator Lidia Thorpe protests during the Ceremonial Welcome to Australia for King Charles III and Queen Camilla at Australian Parliament House in Canberra, marking the King's first visit as sovereign to Australian Parliament House, on day two of the royal visit to Australia and Samoa.Picture date: Monday October 21, 2024. Credit Contributor: PA Images / Alamy Stock Photo

So Bridget McKenzie thinks Lidia Thorpe’s protest against King Charles raises some “quite tricky constitutional questions”. Yes it does, but not the ones she thinks.

When Australians go to the polls for each federal election it is not a top of mind consideration for most that anyone we elect will be prohibited from taking up the seat in parliament we have offered them if they refuse to swear the constitutional oath of allegiance to a foreign king. It is not top of mind that those to whom we hand power will be forced to swear to be loyal solely to another country’s sovereign, rather than to the people of Australia. Clearly, it’s not top of mind for Senator Bridget McKenzie, given the nature of her criticism of Senator Lidia Thorpe’s protest.

Thorpe gave voice to what many regard as the perfectly legitimate complaint of oppressed and dispossessed indigenous Australians to the current figurehead of that oppression. But far from taking issue with either the substance or legitimacy of Thorpe’s complaint, McKenzie did no more than attempt to imply that Thorpe had no right to make it – because, in McKenzie’s opinion, it gives rise to questions about whether the protest may have amounted to a breach of her parliamentary oath.

We may assume then that McKenzie is quite comfortable with the current singular constitutional arrangements in which anyone who is elected to a seat in the Australian parliament must pledge their fealty not to the Australian people and their interests but to a foreign monarch. More than that, she’s implying that the price of entry to parliament is to give up the right to complain to that monarch when crimes are committed against Australians by the regime constitutionally founded in that monarchy.

McKenzie seems to have assumed that because she has sworn no more than to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth, Her heirs and successors according to law”, she bears no legal obligation to Australians and may lawfully put the public interest at nought, even when Elizabeth herself or her heirs might choose to act contrary to the interests of Australians.

And if that is indeed her attitude, then as case law stands at the moment McKenzie would be right. No parliamentarian on accepting office is required to accept any reciprocal obligation to Australians. On the contrary, they are relieved of any such burden and may breach the public interest with impunity.

We know this courtesy of the David McBride trial, where the court accepted the Crown’s argument that McBride could not plead that he was acting in the public interest in his alleged breaches of the law because his oath as a soldier obliged him to nothing more and nothing less than loyalty to “Her Majesty Queen Elizabeth the Second, Her heirs and successors”. Unconscionable as it may seem, the Crown asserted that McBride was not permitted to argue that he must act in the public interest. He was not permitted to argue that his duty to Australians was greater or even the same as his duty to Queen Elizabeth. Due to the similarity of the oaths taken by soldiers and parliamentarians, the court’s acceptance of this argument has now ensconced the British sovereign as the only permissible object of loyalty by both soldiers and parliamentarians. And there that particular sovereign, with her heirs and successors, will stay until another court develops a contrary view or until Australians themselves recognise that the current Constitution is not a democratic one and determine to change it.

Senator Thorpe’s protest may raise questions about whether a breach of the oath has occurred. And this may provide some more silly distractions for any politicians who think there might be political mileage in it. But it’s a risky tactic in the aftermath of the McBride verdict – risky because it may well prompt more Australians to ask why we have a Constitution that does not oblige democratically elected officials to put the interests of Australians above any other, and in fact relieves them of all such obligations because the only thing they must do on taking the oath is to be loyal to King Charles III.

Senator McKenzie might be advised to ask herself why she is so comfortable with taking such an oath. And Australians may ask why no politician (Senator Thorpe excepted) has done anything to commence reform of a system that makes them consign the interests of Australians to the dust bin.

Senators Penny Wong and Katy Gallagher, for instance, have shown in their commentary the same disregard for Australians in their unthinking acceptance of the oath of office for parliamentarians and their equation of it with democracy. Wong felt compelled to say, “we’re all part of an institution that is the parliament and our democracy [and Thorpe should] reflect on the institution of which she is a part, and how she wishes to play a role in that institution”. Gallagher chimed in that “we need to work out a way to ensure that the institution of the Senate … is upheld and respected.”

It is regrettable that Senators Wong and Gallagher did not ask themselves why they want to play a part in an institution that requires them to disavow what in a real democracy would be considered their primary and only essential obligation – namely to Australians. And if they wish to work out a way to ensure the institution of the Senate and democracy itself are respected, then a good place to start would be to change the Constitution so that the oath recognises the Australian people as the sole source of sovereignty, the sole source of the power they are entrusted to exercise when elected, and the sole object of their fealty.

For her part, McKenzie might consider contemplating a constitutional question which does not revolve around why another senator would assert that King Charles is not her sovereign, but rather why he is. Surely the question – for her and for all of us – is why any Australian should be required to swear to be loyal to a foreign king.

If Australians want a democracy worth the name, and if they want to be able to trust those they elect to be loyal to no-one but them, they will need a new class of politicians who are ready to undertake long overdue constitutional reform. One possible path to that reform is set out in The People’s Constitution: the path to empowerment of Australians in a 21st century democracy.

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