By james art by shouting at King Charles and in the ensuing confusion over whether she had indeed pledged allegiance to the Queen’s “heirs” and successors, Senator Lydia Thorpe caused outrage, including among the opposition, by hinting darkly that they would consult constitutional lawyers or consider other procedures.
They may be disappointed to learn that there is no constitutional way to remove her from parliament. As far as we know, she is not disqualified from sitting in Parliament by any of the provisions in section 44 of the constitution: she is not a dual citizen, nor does she owe allegiance to a foreign power. She has not been convicted of treason, is not an undischarged bankrupt, and there is nothing to suggest that she holds an office of gain under the Crown or has a pecuniary interest in the public service of the Commonwealth.
Under section 42 of the constitution, every MP and senator must take an oath or declaration before taking their seat, the wording specified: a declaration of allegiance to Queen Victoria and her “heirs and successors according to law”. Thorpe initially said she had deliberately said “hair” instead of “heirs”, but on Thursday appeared to backtrack, saying she had misspoken.
An elected person cannot take their seat without taking an oath or declaration, but once taken, nothing in the constitution states the consequences for mispronouncing the words of the oath.
There is also nothing in the legislation to help remove Thorpe (if that is what is being sought) as the Parliamentary Privileges Act 1987 tells us that “A House shall not have the right to exclude a Member from membership of a House” . The power of expulsion has been exercised once in Australian history, in 1920, when Labor MP Hugh Mahon was suspended for declaring, among other things, that the British Empire was “bloody and accursed” (Thorpe would probably agree) .
But we have no historical examples in Australia where the mispronunciation of a word in an oath has rendered a sworn ineligible for parliamentary office. In any case, the pronunciation of words varies according to a person’s accent – be it foreign, regional or cultural – and differences in accent certainly cannot be grounds for exclusion from Parliament.
Of course, there are examples outside Australia to consider: in Hong Kong in 2016, several pro-democracy members of the Legislative Council were disqualified for deliberately mispronouncing words or substituting vulgar words in the oath as a protest against the oath’s reference to Hong Kong as a constituent part of China.
British parliamentary history also offers an example where an elected person was prevented from even beginning to take the oath, in the case of Charles Bradlaw. The founder of the British Secular Society was elected four times to the House of Commons in 1880, but was physically detained and expelled from Parliament because, as an atheist at a time when there was no alternative secular “affirmation”, he would not be sincere in abusive towards God. The oath of federal parliamentarians in Australia, by contrast, has always allowed for a secular alternative, an affirmation as an alternative to the expletives (capitalized words and an exclamation mark, as in the constitution) “SO HELP ME GOD!” And, thankfully, no examples in Australian history where the degree of sincerity in the recitation of a parliamentary oath has been tested or treated as grounds for the expulsion of an elected member.
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More importantly, however, in raising the issue of her conduct, attention was diverted from the larger question of the role of the British monarch and the British government in the dispossession of indigenous peoples, and whether we want to retain our constitutional ties to the British monarchy . These are questions that deserve serious discussion.
We might even ask a more fundamental question: is it appropriate for the members of a democracy to swear an oath to a “sovereign” a person? In a democracy, it is the people who are sovereign. Members of Parliament are their representatives and their shared allegiance must be to the democratic community of Australia. We would do well to consider this principle and consider the ‘pledge of engagement’ in the Australian naturalization ceremony: a pledge of ‘loyalty to Australia and its people, whose democratic beliefs I share, whose rights and freedoms I respect and whose laws I will uphold and obey. obeys”.
Let’s think about what this means and whether we might eventually want to replace the anachronistic parliamentary oath in the constitution with something more democratic. That might be a fitting conclusion to the fuss over Lydia Thorpe’s mispronunciation of a word.