The Constitution Amendment (Restoration of Oaths of Allegiance)

15 Pages·2012·0.23 MB·English

February 2012 e-brief 4/2012

The Constitution Amendment (Restoration
of Oaths of Allegiance) Bill 2011:
background and commentary
by Gareth Griffith

1 Introduction in the event of the demise of the
Crown.
On 11 November 2011 the

Constitution Amendment (Restoration
The Restoration of Oaths of Allegiance
of Oaths of Allegiance) Bill 2011 [the
Bill passed the Legislative Council
Restoration of Oaths of Allegiance Bill]
without amendment and was sent to
was introduced in the Legislative
the Assembly for concurrence on 24
Council, sponsored by the Reverend
November 2011.
the Hon Fred Nile. The Second

Reading speech for the Bill explained:
The purpose of this e-brief is to set out

the background to the 2011 Bill and to
The object of the bill is to amend the
comment on its provisions. Brief
Constitution Act 1902 to give a
member of the Legislative Council, comparison is also made with other
the Legislative Assembly or the Australian jurisdictions.
Executive Council the option of
taking or making an oath or 2 The current position
affirmation of allegiance to Her
At present, ss 12 and 35CA of the
Majesty Queen Elizabeth II, her
NSW Constitution Act provide that
heirs and successors as an
both members of the NSW Parliament
alternative to the pledge of loyalty to
and members of the Executive Council
Australia and the people of New
respectively must take a pledge of
South Wales. Taking the pledge of
loyalty in the following form:
loyalty is currently required before a
member of Parliament can sit or
vote and before a member of the Unto God, I pledge my loyalty to
Executive Council can assume Australia and to the people of New
office. South Wales.

It was also explained that: Note that, where an affirmation is
made, the words "Unto God" may be
This bill also makes it clear that a omitted.
member of Parliament who has
taken or made an oath or affirmation
In respect to Members of Parliament
of allegiance does not have to take
only, s12(4) expressly states that:
or make a further oath or affirmation
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A Member is not required, despite Parliament Act 1678, this time in
any other Act or law, to swear response to the false allegations made
allegiance to Her Majesty Queen by Titus Oates of a Catholic
Elizabeth II or her heirs and
conspiracy to assassinate Charles II.
successors before sitting or voting in
As revised in 1689 the oath of
the Legislative Council or the
allegiance was a declaration of fidelity
Legislative Assembly.
to the Sovereign in a recognisably

modern form:
In addition to taking the pledge of

loyalty an Executive Councillor must
I A.B. do sincerely promise and
also take an oath or affirmation of
swear, That I will be faithful, and
office, as set out in s 35CA(4).1
bear true Allegiance to Their

Majesties King William and Queen
3 Historical note on the
Mary, so help me God.
parliamentary oath
It is sometimes assumed that the By the Act of Succession 1701, after
parliamentary oath of allegiance is the French King had proclaimed the
feudal in origin. That is not the case. son of James II to be the rightful heir to
Its origins are in fact religious and the British throne, an oath of abjuration
political, a product of: the Protestant was added, pledging support for the
Reformation of the 16th century; the exclusion of the Stuarts and for the
Civil War of the mid-17th century and of maintenance of the Protestant
the Restoration of the Stuart monarchy succession.
that followed; and of the succeeding
"Glorious Revolution", which saw Each oath was therefore "directed
Catholic James II replaced by against a specific perceived political
Protestant William and Mary.2 threat" and, prior to 1831, had to be
made before the Lord Steward before
It seems that a specific oath for entering "the Parliament House".4
Members of the House of Commons
was not required until 1563, in the form During the 19th century various
of an oath of supremacy. Wilding and statutory exceptions were made, for
Laundy describe this as: Catholics, Quakers, Moravians and
Jews. For example, the Roman
a repudiation of the spiritual or Catholic Relief Act 1829 provided for a
ecclesiastical authority of any special oath deemed acceptable to
foreign prince, person or prelate, Roman Catholics. But not until 1858
and of the doctrine that princes did a single parliamentary oath emerge
deposed or excommunicated by the
in place of the former three. By 1868
Pope might be murdered by their
this had been revised, shorn of its
subjects.3
religious content, making it similar in

form and content (if not in origin) to the
Following the Gunpowder Plot of 1605,
feudal oath of allegiance.5
an oath of allegiance was introduced,

but this was not strictly a
While a specific right to make an
"parliamentary" oath, as it was not
affirmation was granted by statute to
taken in Parliament. Only with the
such groups as Catholics and
Restoration of the monarchy were
Quakers, a general right to make an
oaths of supremacy and allegiance
affirmation was not introduced until the
imposed on Members of Parliament
passing of the Oaths Act 1888. This
and Peers, under the terms of the
followed the controversy attending the
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E-Brief The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011:
background and commentary
election of the atheist Charles amendment to the section over the
Bradlaugh to the House of Commons. next century was in 1936, to take
account of the abdication of Edward
4 New South Wales VIII:

In this section the word demise shall
4.1 Before 2006
include abdication.
From the start of responsible

government in 18566 until 2006, in
4.2 The Oaths and Crown
order to sit and vote members of both
References Bills 1993 and 1995
Houses of Parliament were required to
In 1993, and again when in
take the oath of allegiance to the
government in 1995, Bob Carr
Crown.7 Under s 33 of the Constitution
introduced Bills to amend the oath of
Act of 1855, which included provision
allegiance. In Opposition, Carr
for the demise of the sovereign, the
sponsored a Private Member's Bill –
oath was in this form:
the Oaths and Crown References Bill

1993 – which, among other things,
I…do sincerely promise and swear
sought to replace the existing oath of
that I will be faithful and bear true
allegiance to Her Majesty Queen allegiance, which was described as an
Victoria as lawful sovereign of the "anachronism",9 with an oath in the
United Kingdom of Great Britain and form of a pledge of loyalty that
Ireland and of this colony of New declared:
South Wales dependent on and
belonging to the said United Under God I pledge my loyalty to
Kingdom. So help me God. Australia.

By s 34 of the same Act an affirmation Provision was also made for the
could be made by "every person making of an affirmation, in these
authorized by law to make an words:
affirmation instead of taking an oath"
I pledge my loyalty to Australia.
After federation, when the NSW
Constitution Act was revised in 1902, The 1993 Bill did not proceed beyond
the requirement to take the oath of the Second Reading stage. In the first
allegiance was continued under days of his Government, Premier Carr
section 12 of the Act, only now the introduced the Oaths and Crown
form of the oath of allegiance was set References Bill 1995, which was in
out in the Oaths Act 1900, as follows: similar terms.10 The Bill passed
through the Assembly but stalled at the
I…,do swear that I will be faithful First Reading stage in the Council.11
and bear true allegiance to Her The Second Reading speech
Majesty Queen Victoria, Her Heirs
described the changes proposed by
and Successors according to law.
the Bill as "symbolic rather than
So help me God.8
constitutional in nature", but significant

nonetheless as focusing on "what it
Section 12 of the Constitution Act
means to be Australian". The oath of
included provision for the making of an
allegiance existing at the time was said
affirmation, using the same from of
to be "altogether inadequate as a
words as the 1855 Act. Provision was
definition of loyalty in Australia in the
also made for the demise of the
1990s". It was further argued that the
sovereign. The only substantive
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"concept of allegiance" implied in that to the people of New South Wales"
oath was an "anachronism", to be was introduced.
replaced by a pledge of loyalty.
This legislation was initiated in the
In the Second Reading speech a form of a Private Member's Bill,
distinction was noted between the sponsored by Paul Lynch in the
proposed pledge of loyalty, which Legislative Assembly, where it was
would have applied to members of introduced on 6 May 2004 but not
Parliament,12 and the proposed oaths debated and passed until 7 April 2005.
of office taken by the Governor, On the same day the Bill received its
Executive Councillors, judicial officers First Reading in the Legislative
and police officers: Council, but again debate was
delayed, with the Second Reading only
the first refers to Australia, the latter occurring in early March 2006. The Bill
to New South Wales: that is, one finally passed the Third Reading stage
declares one's loyalty to Australia, in the Upper House without
but one's service and duty is to the
amendment on 7 March 2006, 21
people of New South Wales.13
votes to 14.15

In respect to the Bill's proposed pledge
Introducing the 2006 Bill in the
of loyalty to "Australia", Twomey
Assembly, Mr Lynch noted that, unlike
commented on the jurisdictional
the 1993 and 1995 Bills, the current
differences that would have to be
proposal made reference to "the
resolved if the "Queen" or the "Crown"
people of New South Wales and not
were removed from our constitutional
just to Australia". The pledge, it was
system. According to Twomey:
said, was neither:

In choosing "Australia", the
monarchist nor republican: the
government was concerned that the
pledge is about democratic theory
concept of "allegiance" is one that
and about accepting that our real
relates to a nation, but not to a sub-
legitimacy comes from Australia and
national entity. One reason for this is
from the people of New South
that allegiance involves reciprocal
Wales.16
duties, including a duty of protection

in matters such as defence, external
The purpose of the Bill was said to
affairs and citizenship, which is more
replace a "largely meaningless" oath
relevant to the national level of
with a declaration expressing "where
government. Further, "Australia"
sovereignty actually resides". The
encompasses the State as well as
the nation and the Queen. A Second Reading speech stated:
proposed amendment to change the
oath to one of loyalty to New South Sovereignty does not lie with a State
Wales was rejected by the or with a head of State but with the
government".14 country in which we live and with the
people of his State. Presently,
4.3 Constitution Amendment members state their allegiance to a
head of State. That seems to me to
(Pledge of Loyalty) Act 2006
have the priorities wrong. Our
The current position was established
allegiance is not to a head of State,
under the Constitution Amendment
or even to the State itself, but to the
(Pledge of Loyalty) Act 2006, by which people who elect us and whom we
a "pledge of loyalty" to "Australia and represent.

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E-Brief The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011:
background and commentary
Against the Bill, leading for the constitutional monarchy, and thirdly,
Opposition in the Upper House, Don on all the evidence, the Australian
Harwin observed (in part): people support and have affirmed
the role and function of the Crown in
the Constitution.
"Sovereignty" is the exclusive right

to exercise supreme authority over a
Having noted that "our service men
geographic region or group of
people. Where a nation has a and women take a similar oath", the
constitution, that document defines Second Reading speech added:
the nature of sovereignty. As we are
a sovereign State within a national The oath is not simply to the Queen
federation of such States and as an individual but to the Crown,
Territories, our Australian which embodies far more than just
Constitution and the Constitution Act the physical characteristics of our
1902 of New South Wales define country. It is the basis on which our
"sovereignty" in our nation. Under Constitution is founded, the font of
our constitution, sovereignty is our laws and the single entity which
vested in an individual, a hereditary unites all Australians into one nation.
monarch who is the sovereign. Our
sovereign exercises her authority on It was further argued that:
the advice of her Ministers, with a

constitutionally defined role for
What we are doing today is bringing
Parliament.
New South Wales back into

harmony with the Commonwealth
In swearing an oath of allegiance a
Constitution and with the other
citizen acknowledges his duty of
States of Australia.
allegiance and swears loyalty to the

sovereign…There is no
6 Comparing Australian
incompatibility between this oath of
jurisdictions
loyalty to the sovereign and a
system of responsible and The last decade or so has seen some
representative government.17 major shifts in the terms of the oaths of
allegiance required to be taken by
5 Constitution Amendment members of Australian Parliaments, as
(Restoration of Oaths of shown in the table below.
Allegiance) Bill 2011
As noted, on 11 November 2011 the Jurisdiction Parliamentary
Oath/Affirmation of
Restoration of Oaths of Allegiance Bill
Allegiance or Pledge
2011 was introduced in the Legislative
of Loyalty
Council, sponsored by the Reverend Commonwealth The Queen18
the Hon Fred Nile. Its objects were New South Wales Australia and the
outlined above. On its behalf, the people of NSW
Second Reading speech set out three Queensland The Queen and the
people of
key considerations, as follows:
Queensland19
South Australia The Queen 20
Firstly, under the Constitution of the Tasmania The Queen 21
Commonwealth of Australia we Victoria The Queen 22
remain an indissoluble Federal Western Australia The people of WA/or
Commonwealth under the Crown. the Queen and the
Therefore, we should unite all States people of WA23
of Australia with the Commonwealth. ACT The Queen and/or the
Secondly, under the Constitution of people of the ACT24
New South Wales we remain a Northern Territory The Queen 25
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6.1 Queensland own beliefs. Such a decision mirrors
the current choice available to all
The amendments in Queensland were
those who are about to take office to
introduced in 2001, as part of a lengthy
either take an oath or make an
process of constitutional consolidation.
affirmation, based on their personal
In addition to swearing to bear true
beliefs.
allegiance to the Sovereign, Members

are required to take an oath or At the same time, the Committee
affirmation of office, swearing to "well sees it as important that there be an
and truly serve the people of oath (or affirmation) of allegiance.
Queensland and faithfully perform the The Committee therefore proposes
duties and responsibilities of a that, where an election is made to
not swear (or affirm) allegiance to
member of the Legislative Assembly to
the Sovereign, there be a
the best of my ability and according to
requirement to swear allegiance in
law". In support of this oath of office, in
terms “to Australia” and to
its 2001 report the Legal,
Australia’s “Head of State”.28
Constitutional and Administrative

Review Committee (LCARC) said it
This recommendation has not been
believed:
acted upon to date. The choice it

provides between swearing allegiance
that, upon taking office, members
to the Sovereign by name, on one
should be required to make a
side, and to the Head of State "and his
personal commitment to the people
or her successors in office", on the
of Queensland – the actual font of
sovereign power in this State.26 other, seems rather curious. Under our
present constitutional arrangements
In 2005, following a further report by they are one and the same. Three
the LCARC,27 the Constitution and dissenting Committee members saw it
Other Legislation Bill proposed to as a "latent republican exercise". They
provide members, ministers and recommended that:
judges with the option of not taking an
the Queen be styled in the oath and
oath or affirmation of allegiance to the
affirmation as lawful sovereign both
Sovereign. The Bill lapsed on the
of Australia and Queensland, to
dissolution of the Legislative Assembly
reflect our current constitutional
in August 2006.
arrangements.29

Subsequently, in April 2009 the
6.2 Western Australia
Legislative Assembly's Law, Justice
The position in Western Australia since
and Safety Committee received a
2005 is that a choice is available
referral asking it to "develop options for
between swearing to serve "the people
modernising the oaths or affirmations
of Western Australia", or swearing to
of allegiance" contained in the
bear true allegiance to the Queen and
Constitution Act 2001. With a diversity
to faithfully serve the people of the
of views expressed in the submissions
State. In other words, making an oath
it received, a majority of the
or affirmation to serve the people is
Committee concluded that:
mandatory, whereas making an oath

or affirmation to the Queen is optional.
making it optional to take an oath of

allegiance to the Sovereign best
6.3 The Australian Capital Territory
caters for these differences of
opinion. This allows each individual Since 1995, a threefold choice is
to make a decision that reflects their available to members of the ACT
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E-Brief The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011:
background and commentary
Legislative Assembly, that is, to swear Territory model in that there are
allegiance to: the Queen; to swear to mixed allegiances, that is, one is
serve the people of the Territory; or pledging allegiance to two different
things in that one pledge. I think that
both. In the Second Reading speech,
is confusing and wrong, and defeats
Ms Follett said that the legislation was
the entire purpose of having a
introduced as part of the broader
pledge. As I said, we should not
debate about Australia becoming a
have mixed or conflicting
republic; and she noted that the oath
allegiances.
of citizenship no longer required "an

empty rhetorical expression of loyalty
7 Issues in the debate
to the Queen". Ms Follet further argued
Several issues arise in respect to the
that it was an "anachronism" for
Restoration of Oaths of Allegiance Bill
Members of the Assembly to swear or
2011. Some of these go to the heart of
affirm allegiance to the Queen when,
our constitutional arrangements. Even
unlike all other States and Territories,
the terminology is problematic. Do the
the ACT "does not have its own
terms "the Queen", "Her Majesty", "the
representative of the Queen in the
Sovereign" and "the Crown" mean the
form of a governor or an
same thing?
administrator".30

7.1 What is sovereignty and where
6.4 Comments
is it located?
Commenting on these arrangements in
One focus of the current debate
the Second Reading speech for the
relates to the concept of sovereignty.
Constitution Amendment (Pledge of
What is it? Where is it located? The
Loyalty) Act 2006, Mr Lynch said that
approaches to this contested and
while he understood:
"notoriously ambiguous concept" are

many and varied.31 For the moment, it
the political process that gave rise to
is enough to outline two views, one of
the Australian Capital Territory
which can be described as "legal", the
result, I think that it is probably
other as "political".
wrong in principle. If we are to
pledge our allegiance to something,
we cannot have half of us pledging In respect to the "legal" doctrine,
our allegiance to one thing and the sovereignty is in this context often
other half pledging allegiance to associated with the idea of possessing
something else. It is silly to go the authority to make commands
through the process of having a
which cannot be countermanded and
pledge and having mixed
with the power to make and unmake
allegiances.
laws. In the setting of our constitutional

monarchy, this finds expression in the
Similarly, he criticised the current
bifurcation in modern times between
Queensland model, whereby an oath
executive and legislative powers:
is made to both the Queen and the
defined in terms of "the King [or Queen
people of the State. Not only did he
or Crown] in Council', which can be
consider an oath of allegiance to the
associated with prerogative power;
Queen, or to any Head of State, wrong
and in terms of "the King [or Queen or
in democratic theory, the Queensland
Crown] in Parliament", which is
model was for him:
associated with the doctrine of the

sovereignty of Parliament.32 In its
susceptible to the same criticism I
pristine legal form, as formulated by
just made of the Australian Capital
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AV Dicey, this last doctrine asserts the As to the source of its authority, Mason
power of the British Parliament "to CJ contended that "The Australia Act
make or unmake any law whatever", 1986 (UK) marked the end of the legal
except one that would have the effect sovereignty of the Imperial Parliament
of binding later Parliaments.33 and recognized that ultimate
sovereignty resided in the Australian
The doctrine finds expression in the people".36 As for the location of the
NSW Constitution Act, which defines power to amend the Commonwealth
"the Legislature" as "His Majesty the Constitution, in support of popular
King with the advice and consent of sovereignty McHugh J observed that
the Legislative Council and Legislative "ultimate sovereignty resides in the
Assembly". By s 5, it is this composite body which made and can amend the
body, "the Legislature", which has the Constitution".37 Significantly, the
power "to make laws for the peace, Commonwealth Constitution was
welfare, and good government of New agreed to by popular referendum and
South Wales in all cases whatsoever". can only be amended by the same
means.
Notwithstanding the "manner and
form" provisions which have enabled The correctness of this account of
the NSW Legislature to delegate some popular sovereignty as a legal doctrine
of its law making powers to popular has been questioned, with Professor
referendum, the legal foundations of Zines concluding that:
sovereign power under the
Constitution Act conforms to the The concept of sovereignty of the
doctrine of parliamentary sovereignty, people…must be regarded as either
as understood first in a colonial and purely symbolic or theoretical. Seen
afterwards in a federal context.34 as a symbol it might be regarded as
similar to the symbol of the Crown,

uniting the various organs and
In recent times it has been argued that
elements of the organisation of
"legal" sovereignty can be established
government under one concept and,
on the basis of the doctrine of popular
in particular, symbolising the system
sovereignty. At least, that is the
of representative government that
argument which has been made in has been discovered in the
respect to the Commonwealth [Commonwealth] Constitution".38
Constitution, as articulated by the High
Court in a series of implied freedom While the constitutional position in
cases in the 1990s. The upshot of NSW is subtly different,39 the same
those cases was the discovery of an broad argument may apply. But that is
implied freedom of political not to downplay the significance of
communication, informed by and popular sovereignty as a political
based on the constitutionally doctrine. In a crucial sense the
prescribed system of representative legitimacy of the laws and decisions
and responsible government. made by the NSW Parliament and
"Sovereignty" in this context was Government rests on their status as
considered by reference to the source representatives of the people of the
from which the Commonwealth State. After all, in a constitutional
Constitution derived its authority, and monarchy the Sovereign may reign but
secondly from the location of the it is the representatives of the people
power to amend it.35 who rule.40

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E-Brief The Constitution Amendment (Restoration of Oaths of Allegiance) Bill 2011:
background and commentary
Another perspective on the issue can established by "political struggle, not
be gained by reference to the work of judicial decision" and is:
the constitutional lawyer, AV Dicey. As
noted, the doctrine of parliamentary in fact, sui generis, a unique hybrid
sovereignty is associated with Dicey. of law and political fact deriving its
What is sometimes overlooked is the authority from acceptance by the
people and by the principal
emphasis Dicey placed in a British
institutions of the state, especially
context on the "political" sovereignty of
parliament and the judiciary.44
the electors. Having confirmed that "as

a matter of law Parliament is the
7.2 Can sovereignty be divided or
sovereign power in the state", Dicey
separated?
went on to say:
Constitutional monarchy is not so

much a product of theory as of practice
It is however equally true that in a
political sense the electors are the and, as such, does not always pass
most important part of, we may even the test of logical consistency, still less
say are actually, the sovereign of theoretical purity. It might be
power, since their will is under the suggested that the very term
present constitution sure to obtain "constitutional monarchy" implies a
ultimate obedience.41
shared sovereignty, combining the

Sovereign and the people.
As Wade and Bradley commented:
Theoretically, however, that is

problematic, for the reason that
Dicey suggested that political
sovereignty is usually conceived of as
sovereignty, as opposed to
indivisible and even absolute,
legislative sovereignty, lay in the
encapsulated in Jean Bodin's idea of
electorate, and that ultimately the
"the absolute and perpetual power of a
will of the electorate was sure to
commonwealth".45 Practically
prevail on all subjects to be
determined by the British speaking, on the other hand, the dual
government.42 "legal" and "political" sovereignty
envisaged by Dicey may be just
As a matter of political practice a another compromise or
similar argument could be made to the accommodation within our system of
same effect in an Australian context, government.
including NSW.43 The argument might
be used in support of a "political" What, then, is implied in the
doctrine of popular sovereignty, on the Restoration of Oaths of Allegiance Bill
basis that in a representative 2011, where members are presented
democracy, the people are the real with a choice of sovereign allegiances
and actual source of political authority or loyalties? Does it favour
and legitimacy. From the standpoint of compromise over consistency, political
this "political" doctrine of sovereignty it history over legal theory?
might be argued that its "legal"
counterpart is something of a second- Of course, it may be that s 12 of the
order explanation, one that is NSW Constitution Act in its current
dependent ultimately on the political form already implies a divided
realities of popular and institutional sovereignty, between "Australia" and
approval. As Professor George "the people of NSW". This is because,
Winterton observed, the doctrine of in the Australian federation, where
parliamentary sovereignty was there is a Queen of Australia and
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possibly a Queen of NSW, power is about mixed allegiances between the
divided or distributed between the Crown and the people; on the other
Commonwealth and the States, with the concern was that some Members
each level of government enjoying would be swearing different
"sovereign power" within their oaths/affirmations to others.
jurisdictional limits. As Twomey writes:
As to what is meant by swearing
McHugh J also observed in Re allegiance, one point to make is that
Residential Tenancies Tribunal references in a constitutional context
(NSW); Ex parte Defence Housing to the Queen "are to the office, rather
Authority that "[w]ithin their
than the person of the Queen, and
respective domains, the polities that
allegiance relates to the body politic,
make up a federation are regarded
rather than the Queen personally".48 As
as sovereign". He further noted in
such the taking of an oath can be seen
Austin v Commonwealth that the
as an express recognition of one's
sovereignty of a federated nation "is
political obligation.49
divided on a territorial basis".
Another way of looking at it is that
"sovereignty is shared between the A second point is that, once made, the
Commonwealth and the member parliamentary oath (unlike its feudal
States of the federation".46 counterpart) does not appear to be of
any legal significance.50 Queensland's
In this way the untidy exigencies of LCARC explained that in making an
federalism are added to the oath or affirmation, a member is
accommodations of constitutional making a solemn public declaration or
monarchy. promise to comply with its terms. The
LCARC added:
An added comment is that, by its
reference to "Australia", current s 12 As the commitments or promises
may also incorporate a reference to made in an oath or affirmation are
the Crown. This arises from another morally and not legally binding, an
comment made by Twomey, to the oath or affirmation does not impose
effect that "Australia", understood as a any penalty for a failure to comply
with its commitments.51
polity with a defined head of state,

"encompasses the State as well as the
Taking these two points together, the
nation and the Queen".47 If that is the
parliamentary oath of allegiance can
case, then those who favour omitting
be viewed as a political oath of loyalty
any express or implied reference to the
to the body politic, giving rise to no
Queen, may argue that the pledge of
legally binding undertakings, but one
loyalty in s 12 should be limited to "the
that is nonetheless of moral and
people of NSW".
symbolic note.

7.3 Can allegiance or loyalty be
The question that arises is whether
divided or mixed?
such an oath, affirmation or pledge can
As noted, an argument made in the
be divided or separated between
context of the Constitution Amendment
different bodies or entities? Can there
(Pledge of Loyalty) Act 2006 was that
be mixed allegiances? Historically, the
swearing allegiance or loyalty to either
answer would have been "no", for the
the Queen or the people of NSW was
simple reason that the oath was
both wrong in principle and confusing
intended to cement support against the
in practice. On one side, the issue was
external and internal enemies of the
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