Sir Thomas More died, on the block, in 1535 rather than swear an oath on Succession to the Crown that was contrary to his beliefs. Politicians today are made of less stern stuff.
Even though her life was not on the line, Senator Lidia Thorpe chose to take an oath (or in her case, an affirmation) that was apparently contrary to her beliefs. She expressed it in an exaggerated way, indicating her disdain for it, including aspirating the “h” in “heirs”. On Wednesday, the Indigenous senator claimed she had made her oath to the Queen’s “hairs”, but on Thursday she said she had “misspoke” by mispronouncing the word.
“You’re not my king” … Lidia Thorpe challenged the visiting King Charles this week, then claimed she had never sworn allegiance to his mother or her “heirs”. Rather, she had said “hairs”. Credit: Getty Images, Alex Ellinghausen
After making her affirmation, Thorpe signed the “Test Roll”. This is a book in which members of parliament and senators sign under the oath of allegiance. The point of the Test Roll, historically, was to “test” the parliamentarian’s loyalty to the Crown.
Section 42 of the Constitution says that every senator “shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution”. The schedule requires that senators swear or affirm that they “will be faithful and bear true allegiance to” the monarch and his or her “heirs and successors according to law”.
On the face of it, Thorpe satisfied the requirements of section 42 by signing the written form of the oath in the test roll and reciting it orally, even though she aspirated the “h” in “heirs”. The president of the Senate accepted that she had done so, witnessing her signature, and she was permitted to sit and vote.
It seems likely from Thorpe’s behaviour and subsequent comments that she was not sincere in her oath and that she now rejects it. Does this have any constitutional consequences?
Sir Thomas More, who was beheaded for refusing to accept King Henry VIII as head of the Church of England. Credit: Frick Collection
This is where there is a stark difference between the United Kingdom and Australia. In the UK, the Parliamentary Oaths Act 1866 says that if any member of the House of Commons votes or sits without having made and subscribed the oath, “he shall be subject to a like penalty for every such offence, and in addition to such penalty his seat shall be vacated in the same manner as if he were dead”. The penalty is £500 for each day that the member sits without having taken the oath.
The framers of the Commonwealth Constitution chose not to take that approach. They did not include the failure to take the oath as a ground for disqualification in section 44 of the Constitution or for ongoing penalties under section 46 of the Constitution. Instead, they left it to the Houses to deal with under section 42.
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