She may have split ‘heirs’, but Lidia Thorpe’s oath won’t get her sacked

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.

What about the Senate? Can it take any action against a senator who made an affirmation of allegiance insincerely or who has later rejected it? The ability of a House to expel one of its members for bringing the House into disrepute was terminated by the Parliamentary Privileges Act 1987.

The Senate does have limited powers to impose penalties, such as fines or imprisonment, for an offence against the House, but this is limited to offences that amount to an improper interference with the free exercise by a House or committee of its authority or functions, or the free performance of a member’s duties. The Senate can also suspend members in relation to disorderly conduct. But these measures do not appear to be relevant to comments made outside the House that do not interfere with its functioning.

Could the Senate pass a resolution to the effect that Thorpe had not validly made her affirmation and that she may therefore not sit or vote as a senator? There do not seem to be any Australian precedents for this.

There were, however, cases in the Westminster Parliament in the 19th century, when elected members were prevented from taking oaths for religious reasons. For example, in 1850 and 1851, two elected Jewish members left out the words “upon the true faith of a Christian” from one of the required oaths. The House of Commons passed resolutions that they were not entitled to vote or sit in the House until they took the oath in the correct form.

The matter went to court because, unlike in Australia, there are legal consequences for sitting without taking the oath. The court upheld the resolutions of the House. Legislation was later passed to remove the controversial words.

In the 1880s, Charles Bradlaugh, who was an atheist, was prevented from taking the oath, despite his willingness to do so. A court later confirmed that even if he took the oath, in its existing form, his lack of belief in a supreme being meant that his oath had no binding effect, and he was liable for penalties for sitting and voting as a member. Bradlaugh’s campaigning eventually led to the Westminster Parliament accepting that an affirmation could be made by non-believers, rather than an oath.

As Senator Thorpe has formally taken an affirmation, both in writing and orally, it seems unlikely that the Senate would take the dramatic step of denying its validity and seeking to exclude her from sitting or voting. Once the Senate starts trying to determine the sincerity of one person’s oath, it would potentially open a Pandora’s box for others. It is certainly uncharted territory in Australia, and probably best left unexplored.

Anne Twomey is a professor emerita in constitutional law at the University of Sydney.