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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-01 Daily Xml
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Bills

Constitution (Pledge of Loyalty) Amendment Bill

Introduction and First Reading

The Hon. M.C. PARNELL (15:46): Obtained leave and introduced a bill for an act to amend the Constitution Act 1934, and to make a related amendment to the Oaths Act 1936. Read a first time.

Second Reading

The Hon. M.C. PARNELL (15:47): I move:

That this bill be now read a second time.

Across the globe, citizens of many nations are rethinking and reimagining the future. It is not just about the world post-COVID, but other social issues have been gaining traction. In the United States, we see a resurgence of the Black Lives Matter campaign, fuelled by the death of African-American citizen George Floyd in Minneapolis, Minnesota. In Australia, people are again agitating to end racism in this country.

People are marching in the streets in support of true reconciliation with our First Nations People. There are renewed calls for a treaty or for constitutional recognition. There are growing numbers of people questioning why have statues and monuments to historical figures whose crimes against humanity cannot all be explained away as being a product of the times. Yet, we have very few monuments or statues recognising the struggles of Indigenous people. All of these issues are separate, yet they are related.

When it comes to policing and corrections, the spotlight has been on the over-representation of Indigenous people in the criminal justice system. People also want to know why recommendations of the Royal Commission into Aboriginal Deaths in Custody from last century still have not been implemented. So it is encouraging to see that our police are actively recruiting young Aboriginal people to join the police force. There are even special pathways to help with this process such as the community constable scheme, which supports Aboriginal people who want to serve their community. To quote from the SAPOL website:

As a community constable, you'll use your understanding of cultural and social issues within your local community to work with SA Police and the community. To join us, you need to be an honest and respected leader with a strong desire to assist the community and the ability to meet challenges head-on.

That is all well and good, but what has any of this got to do with amending the South Australian constitution and the Oaths Act? The answer is simple: in order to join the police force and a range of other official positions, which I will get to later, new members are required to swear an oath. Police officers, community constables and special constables must take an oath or an affirmation on appointment pursuant to sections 25 and 60 of the Police Act 1998. The form of oath and affirmation are set out in schedule 3 of the Police Regulations 2014 and it reads like this:

I, AB,—

that is your name—

do swear—

or if you prefer to make an affirmation it is—

I, AB, do solemnly and truly declare and affirm—

and here are the words—

that I will well and truly serve Her Majesty Queen Elizabeth II and Her heirs and successors according to law in the office of community constable, without favour or affection, malice or ill-will; and that I will faithfully discharge all duties imposed on me as a community constable—[So help me God!]

You say 'So help me God!' if you have decided to swear.

Whilst at the start of every sitting day in this parliament we acknowledge that we meet on Aboriginal land, we start our conferences with a Welcome to Country or an acknowledgement of country, and as we try to come to grips with our colonial past and the dispossession that it entailed, as we do all of this we still require Aboriginal people with a desire to help their local community to swear allegiance to the Queen before we allow them to become community constables. Whose brilliant idea was that?

Why is it that the first words a community constable utters on her or his first day on the job is to pledge to well and truly serve whoever happens to be the current incumbent in the hereditary monarchy of the colonial power that took Aboriginal land by force and dispossessed the people? Whose idea was that?

Of course, it is not just police officers, it is also members of parliament and judges and, until fairly recently, it was lawyers as well. When I was admitted to practice as a lawyer in Victoria in 1984, I had to swear a similar oath of loyalty. That has recently been removed for lawyers but it took a long time—over 100 years, in fact. In the 19th century, the United Kingdom, through the Promissory Oaths Act of 1868, they removed the oath of allegiance to Her Majesty The Queen for barristers and solicitors seeking admission in that jurisdiction, yet it survived here for another century or more.

Closer to home, when members are sworn to take their seats in this parliament, the constitution requires them to swear or affirm an oath of loyalty. The crux of section 42 of the constitution is that no member of parliament shall be permitted to sit or vote therein until the member has taken and subscribed the following oath before the Governor. The words are:

I [insert name here] do swear that I will be faithful and bear true allegiance to [insert title of the Sovereign, His/Her] Heirs and Successors, according to law. SO HELP ME GOD!

Again, in this parliament, when we take this oath, God is optional. Members can choose to affirm rather than to swear. But the failure to take this oath means that the will of the people in a democracy at an election is frustrated and the member cannot take their seat unless they have taken that oath.

In practical terms that means that those who are elected, both here in the other place, the members who are entrusted to legislate for the order and good governance of the people of South Australia, must pledge fealty to not only Queen Elizabeth, the only monarch who most of us have ever known, but to each of her potential heirs and successors, whoever they might be.

The line of succession to the British throne makes for interesting reading. Most of us know that the Queen's very patient son Prince Charles is next in line, followed by his eldest son, William. But as you work your way through the list, you get to number eight: Prince Andrew. This is the guy who is causing intense embarrassment to the royal family. He is an associate of disgraced, now deceased paedophile billionaire Jeffrey Epstein.

Prince Andrew is potentially one of these 'heirs and successors according to law' that members of parliament and Aboriginal community constables are required to swear allegiance to before they can take up their positions of public service.

So I am not mistaken, I sincerely hope that no ill-fortune befalls the seven people ahead of him on that list, but the point I am making is: why in an independent nation in the 21st century are we harking back to our colonial past, rather than looking forward to our multicultural future with true recognition of our First Nations peoples? If members are interested, I can show you the list of succession. There are lots of little kiddies in there now that the royal family has been breeding, but No. 8, Prince Andrew, the Duke of York, is certainly still on that list.

My bill does away with this outdated and inappropriate provision in our constitution and a related provision in the Oaths Act. Now is the time to relegate this relic of an oath of allegiance to the history books and, in its place, entrench a pledge of loyalty which asserts that those charged with the drafting, enactment and enforcement of the laws of this land owe their duty to the citizens who elected them or who they serve, not a genetically selected ruler residing in a foreign and distant land.

Such a change is not without precedent. In the NSW parliament in 2005, two days prior to Prince Charles' second marriage, an amendment introduced by Labor MP Paul Lynch was passed. Mr Lynch at the time said, 'We'll be swearing allegiance to the citizens and families of New South Wales—the people who put us in our jobs.'

A similar amendment also passed the House of Assembly of this state that same year, only to languish in the upper house. In speaking in favour of the bill, the sadly departed member for Fisher, the late Hon. Bob Such, said that such an amendment would 'ensure that members of parliament are focused on serving the people of this state rather than being tempted to serve their own interests or those of other bodies, including major political parties'.

Ten years prior to NSW's reform and prior to the mooted changes in South Australia, the ACT was the first to act by giving members of the Legislative Assembly a choice of oaths, either to The Queen or to the people of the territory.

When it comes to citizenship, in 1993 the federal ALP made a commitment to 'replace the old Oath of Allegiance with a Pledge of Commitment as a Citizen of the Country of Australia'. After the election, introducing the legislation, then minister for immigration and ethnic affairs, Senator the Hon. Nick Bolkus, said:

…we need to have an oath of allegiance which reflects the core values of Australia and which is a bonding instrument, and we can do this without any disrespect to our sovereign…

So now we have a situation where new arrivals to our country are not required to swear allegiance to the Crown, but people who have been here for tens of thousands of years are required to do so if they want to join the police, the judiciary or the parliament. The pledge of commitment in citizenship ceremonies now takes two forms, either with or without God. The secular version reads:

From this time forward, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.

I really like that. I think they are good words. That pledge came into effect in January of 1994, and I do not believe there have been any changes to it since.

Our state constitution is a living creature that is designed to evolve with the times. We saw this in the days preceding the last election, when the appallingly misnamed 'fairness clause' was removed from the constitution, and good riddance, I say. But our times, they are a-changing again, and this amendment is another opportunity to move with the times, rather than to take a step back in time, as it appears the government and the Attorney-General wish to do with their reintroduction of Queen’s Counsel, which is a matter for another time.

Two former political leaders who I suspect are dear to the hearts of some members of this house, Paul Keating and Nick Xenophon, were also proud republicans. They favoured the shifting of allegiances to the citizens of this country, not to the old Empire. Keating in 1993, when discussing amendments to the oath of citizenship, said the following:

…while the British monarch still has our affection and our regard, there is no question that the monarchy commands much less of both.

Mr Xenophon, in 2010, in an article in The Age, during the renewed push for the republic, back then reiterated his support for an Australian rather than a foreign head of state.

It has been 152 years since the British removed the oath of allegiance for lawyers in their country. It has been 27 years since Paul Keating spoke about reforming our citizenship oath. It has been 15 years since our fellow citizens in New South Wales reformed their oath for members of parliament and it has been 26 years since the pledge of commitment in citizenship ceremonies was reformed. As a state that has proudly led the way on constitutional reform such as when we gave the right to vote to women in 1894, the time is well and truly up for us to act on this issue.

Some may say that the oath is only words, it is only symbolism, but words do and should matter, particularly when they are solemnly sworn. When it comes to replacement words to the oath of loyalty, I am open to suggestions. In the bill, I have opted for a simple commitment that reads as follows, 'I pledge my loyalty to Australia and to the people of South Australia'. If members think we can do better, and as I said, the words in the citizenship ceremony I think are pretty good, if it is a deal breaker to get some different words in, I am open to that because the most important thing for us to do at this stage is to remove the reference to hereditary monarchy that is less and less relevant to Australia by the day. With those words, I commend the bill to the house.

Debate adjourned on motion of Hon. D.G.E. Hood.

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