The prosecution of David McBride and the Australian Constitution

Dec 27, 2023
Word cloud with words related to politics, government.

In the wake of the prosecution of David McBride something has emerged about our Constitution that should give every Australian cause for serious concern, this being that the oath taken by both our armed forces and our parliamentarians is one which obliges them solely to be loyal to a foreign monarch, not to the Australian people.

During pre-trial hearings the Crown prosecutor successfully argued that in taking the oath of enlistment a solider becomes obliged to serve only the Crown and not the public interest. And because the oath for the armed forces is identical in its essentials to the oath parliamentarians are obliged to take under the Australian Constitution, the court’s acceptance of the Crown prosecutor’s interpretation of the oath of enlistment has uncovered something about the basis of Australia’s Constitution that makes it untenable. Untenable, that is, if we want to continue in the assumption that we live in a democracy where executive governments are responsible first and foremost to those who elect them and are accountable to the parliament.

More shocking than a mere statement that an Australian soldier’s sole loyalty is to a foreign monarch is the fact that the court appears to have thus far accepted an interpretation that implies it is lawful for anyone swearing such an oath not just to fail to serve the public interest but to actively work against it. In the soldier’s case the logical extension of the oath thus interpreted is that, if ordered to do so by the Crown, a soldier must without any further consideration turn his or her weapons on the people. And the same goes for parliamentarians; if the Crown so orders, they too – apparently without consequence in justice – can fashion any laws they make so that they are contrary to the public interest. Indeed Australian parliaments have done so quite frequently over the last 20 years by making no less than 350 laws which have abused or removed the human rights of Australians.

Most Australians assume we live in a democracy where laws are always made in the public interest because we have free elections. But elections – and, for that matter, the Constitution – do not clarify the public interest. Nor in the letter (and arguably the spirit) of the Constitution is it the case that elections provide us with democratic government. Australia is a constitutional monarchy, not a constitutional democracy. Democracy is mentioned nowhere in the Constitution and the people are accorded no power in it whatsoever. Quite the contrary – in elections they are forced to give their consent to be governed by an Executive (effectively a few select ministers advising the governor-general as the king’s representative – usually denoted as “the Crown”). And the people have no power to set limits as to what members of the Executive may and may not do with the power they acquire. Elections may give Australians the illusion of “people power”, but they are actually the means by which we are forced to give it away entirely and without conditions.

Nor, contrary to common assumptions, do elections establish the parliament as sovereign. In reality parliaments have little hope of protecting Australians against a wilful and abusive Executive. They cannot effectively control the Executive if it chooses to act against the public interest. If they can muster the numbers, parliaments might be able to enact laws from time to time which clip the wings and abuses of an autocratic Executive but these enactments are rare (and in the case of human rights laws are almost non-existent as evidenced by the fact that there is no federal Human Rights Act in Australia). In any case these rare laws can be and are quite often overturned. Both Coalition and Labor executive governments have found it easy in this century to force through laws and policies which abuse or remove the rights of Australians and seriously threaten their interests.

The Constitution is at the centre of this problem. It is the root cause of the abuses being suffered by Australians against their rights and interests. And at the centre of the Constitution itself is the perfidious oath that must be sworn by parliamentarians. We elect them in the expectation that they will look after both the public and the national interest, that they will act in accordance with democratic norms and conventions, that they will uphold our values as a society and that they will behave ethically by observing international laws on human rights. But once elected, the constitutionally enshrined oath they must take obliges them to do none of this. Worse than that, it would appear it is now considered lawful to do the opposite, if so ordered by the Crown in the form of either a king, a queen or the Executive.

Australia’s Constitution is a fatally contradictory law. On a superficial level it appears to support the idea of “parliamentary sovereignty” in which the executive government (including the monarch) is theoretically responsible to the parliament (not the other way around). This is characterised as “the principle of responsible government”. But on another level, the Constitution overturns this principle, inasmuch as the will of the people expressed in their election of parliaments is able to be discarded entirely once a government is formed and parliamentarians by their oath are conscripted solely to service of the king or queen (in reality the Executive). In elections Australians therefore do nothing more than form autocratic, not democratic, governments. They do not form parliaments capable of fostering government of the people, by the people, for the people. They simply end up with government of the people – government that it would now appear can hardly be constrained from actions against the public interest.

The risk to both the public and national interests that can arise under such an inherently anti-democratic Constitution is extraordinary. It means that an executive government can disregard the people’s will on matters that threaten their very existence, including on war, climate change, nuclear energy and weapons, chemical and biological threats, and access to food and water. And at the centre of it all is the wretched oath in the Constitution – an oath which we must now assume obliges those we elect to act against the interests of Australians and in full favour of a foreign monarch who has no reciprocal obligation to any Australian. And if we were to take that monarch out of the equation – by becoming a republic, for example – it is nevertheless still the case that the crux of the problem remains: Australian governments and parliaments are under no obligation to serve the interests of the Australian people.

The oath is fundamental to the Constitution and therefore would need to be changed by referendum. But the David McBride case has uncovered the fact that it is now an intolerable situation for the people of Australia if both the oath and the Constitution in which it is enshrined can be turned so viciously – but lawfully – against them. It follows then that if we need to change the oath, the whole Constitution will unravel from its core and must be rewritten. This should be acknowledged as an opportunity for Australians to re-think the arrangements of our democracy. We can do this by establishing a national collaborative process to build a new Constitution – one fit for a 21st century democracy of political equals. Find out more about how we can do this here.


In Part 2 – some insights on how Australians can begin to build a Constitution fit for a true democracy.

Share and Enjoy !

Subscribe to John Menadue's Newsletter
Subscribe to John Menadue's Newsletter


Thank you for subscribing!