In the Commonwealth’s prosecution of whistleblower David McBride for his disclosures of possible crimes by Australian soldiers in Afghanistan, the Crown has (to date) been successful in arguing something that will surprise most Australians – that being that an Australian soldier does not serve Australia, or the Australian people or the public interest. Instead, a soldier’s oath obliges him or her to swear to do nothing more or less than to “well and truly serve [only] Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law,” and to “resist Her enemies.”
As the Crown prosecutor Trish McDonald submitted: “To interpret [the word] ‘serve’ to mean to act in the public interest, is to turn on its head service to king or queen. … Nowhere in the oath does it refer to public interest or that a soldier must act in the public interest.” Ms McDonald added that, “If it were [an oath to act in the public interest], Parliament would have said so.”
This amounts to an argument that the oath of enlistment in Australia’s armed forces is an oath to act against the public interest whenever it is contrary to the current monarch’s interest, or when she or he simply orders armed forces personnel to do so. The implication is that by taking the oath a soldier is being offered a strictly binary choice between essentially opposed entities and there is only one choice they can make. They must choose to give their loyalty fully to a foreign monarch, not to the Australian people. So in Ms McDonald’s line of argument a soldier can’t choose to serve both, and in taking the oath must desert any loyalty they might have had to the public.
This breathtaking display of disrespect by the Commonwealth for the people of Australia and the soldiers who seek to serve them should act as a wake-up call for all Australians about the nearness of their democracy to extinction.
Common assumptions in Australia’s democracy, such as it is, generally include one that suggests that the sovereign derives its authority from the people. Constitutional lawyer Helen Irving has assumed as much by saying that “The Constitution rests upon the sovereignty of the people … their consent is the ultimate authority for government … and a core part of the principle of democratic sovereignty is that power must not be derived from another source.”
This would imply that under our Constitution the people are a higher authority than the Crown and that the Crown must defer to their interests. However, that assumption has now been unmasked as one that is at present not shared by either the Crown or its appointed Executive (that is, the council of select ministers advising the governor-general). On the contrary, the Crown and the Executive quite clearly have an interest in ensuring that the Crown is the higher and indeed the sole relevant authority in our democracy, regardless of the people. In other words, the Crown itself (whether it takes the form of a king, a queen or an executive government) now assumes it has no obligation to serve or protect the people. And by extension the Crown’s implication is that its armies have no obligation to the people and their interests.
Worse than that, something extra that is truly dreadful emerges from Ms McDonald’s arguments – at least if we have an idea that the Crown is there to protect and defend the people and their interests. If she and the court interpret the oath to mean that “to act in the public interest is to turn on its head service to king or queen”, then both she and the courts are declaring that one of the “enemies” the armed forces are bound by their oath to defend the Crown against is the people themselves. It is now out in the open that Australia’s armed forces aren’t there to protect and defend Australians, they’re there to protect and defend the king or queen of a foreign country no less, and more than that, to take up arms against the people if she or he orders them to do so.
This implies something that no Australian soldier who has grown up in what we have assumed to be a democracy would have been likely to fully consider when taking the oath to serve the Crown. When swearing this terrible oath – an oath to defend to the death not the interests of the people of our state but those of a foreign monarch, an oath to “resist Her enemies” with lethal force should she (or her executive) so arbitrarily demand – did those Australians taking the oath think that they were swearing to be ready to kill Australian citizens or act against their legitimate interests, if so ordered?
Is it likely that soldiers who have faithfully sworn this oath were advised of the obligations implied by Ms McDonald – that, if so ordered, they would be required unquestioningly to turn their weapons on the citizens of Australia or engage in other acts of commission and omission that could plunge the people and their legitimate interests into the abyss? This is the implication of the oath of enlistment that we must now consider if Ms McDonald is right about our rule of law. Soldiers who might enter the army precisely because they want to give their all to serve the public interest – soldiers who might enlist because for them a meaningful life consists in their willingness to make the ultimate sacrifice for the people of Australia – those soldiers would be very likely to conclude that their lives were wasted if their sole duty was to a foreign monarch and not to the public as well.
But, as if this is not bad enough, we should also be attentive to the fact that the oath parliamentarians are forced to swear before they can take up a seat offered by the people in a democratic election, is mostly identical to the oath for the armed forces. It too forces those who might seek office to further the public interest to swear no more than that they “will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.” There is nothing in the oath for elected parliamentarians that mentions the public interest.
And now that we have seen a Commonwealth prosecutor push arguments on the court that basically suggest both parliamentarians and soldiers must disregard the public interest if the Crown or the Executive says so, it is clear at last that the form of state extant in Australia is one in which force is ranged against the people. Military and executive force is not for their protection or even for the protection of their duly elected parliaments. It is designed to ensure that the military – like passive drones with no human ties – will work in the service of the state against the people. Ms McDonald’s argument (at least for the moment) has prevented armed service from being “turned on its head against king or queen”, but in doing so she has turned the raison d’etre of our state on its head. Australians may have come together to form a nation in 1901 because they assumed this would establish a form of state capable of protecting them and their interests. But as it’s turned out, the opposite form of state has been imposed on them.
This is an abridged version of an article originally published in The State of Australia Newsletter on Substack. View the full article here.
For more on this topic, P&I recommends:
Elizabeth Ward, Law & Bills Digest Group, Call out the troops: an examination of the legal basis for Australian Defence Force involvement in ‘non-defence’ matters (Update of Background Paper issued 5 September 1991, id no.01-3045), Department of the Parliamentary Library, 2012.
Bronwyn Kelly is the Founder of Australian Community Futures Planning and the author of By 2050: planning a better future for our children in 21st century democratic Australia and The People’s Constitution: the path to empowerment of Australians in a 21st century democracy. View her writing on Substack at bronwynkelly.substack.com or at austcfp.com.au
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