Why the oath sworn by every member of the Australian Parliament matters more than most Australians know.
Also on this page: Notice requiring production of subscribed oath or affirmation of allegiance
Introduction
Every man and woman elected to the Commonwealth Parliament – every Senator, every member of the House of Representatives – must, before taking a seat, make and subscribe an oath or affirmation of allegiance. This is not a ceremony. It is a constitutional precondition. Without it, the seat cannot be occupied and no vote can be cast.
What most Australians do not know is the precise form that oath must take, to whom allegiance is sworn, and why the answer to that question has become significantly more complicated over the last fifty years than it appears.
This article explains the distinction between the monarch as a constitutional office and the titles created for statutory convenience – and why that distinction goes to the heart of whether the oath currently being administered satisfies the Constitution at all.
The monarch and the title are not the same thing
It is natural to assume that “the King” is simply the man who wears the Crown – one man, one office, one description. That assumption was correct once. It is not correct now, and has not been correct since 1953.
A man or woman can hold multiple distinct legal offices simultaneously. The same man currently holds, among others, the office of King of the United Kingdom of Great Britain and Northern Ireland, the office of King of Canada, the office of King of Australia (if that title is properly constituted, which this article examines), and the office of Head of the Commonwealth. These are not the same office wearing different names. They are legally distinct positions, operating in different legal systems, on different advice, under different constitutional frameworks.
This was confirmed definitively by the House of Lords in R v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited [2005] UKHL 57, where Lord Bingham of Cornhill stated plainly that “it is now clear, whatever may once have been thought, that the Crown is not one and indivisible.” Once that is understood, the question of which Crown – which office – is engaged in any given constitutional context is not academic. It is legally determinative.
The relevant constitutional instrument supplies the answer. For the Commonwealth Constitution of Australia, that instrument is covering clause 2 of the Commonwealth of Australia Constitution Act 1900 (UK).
What covering clause 2 says
Covering clause 2 of the Commonwealth of Australia Constitution Act 1900 (UK) provides: “The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.”
This is not a minor interpretive note. It is a provision of the enacting instrument that gives the Constitution its legal existence. It identifies, with precision, which Crown the Constitution is built around: the heirs and successors in the sovereignty of the United Kingdom.
It cannot be repealed by the Commonwealth Parliament, which derives its existence from the very instrument containing it. It cannot be altered by referendum under section 128, because section 128 applies only to “this Constitution” – the scheduled instrument in clause 9 – not to the covering clauses that sit above it and give it force. It cannot be altered by the UK Parliament, which surrendered that power under the Australia Acts 1986.
Covering clause 2 is, in a precise and textually grounded sense, unalterable by any currently operative mechanism. It identifies the constitutional Crown of Australia as the heir and successor in the sovereignty of the United Kingdom. That identification remains operative.
The 1953 division of the Crown
Prior to 1953, the Crown was treated as one and indivisible across all Commonwealth realms. That position ended by legislative act. The Royal Titles Act 1953 (UK), enacted by the UK Parliament following agreement between Commonwealth prime ministers in December 1952, authorised the Monarch to adopt separate styles and titles for each realm, suited to each realm’s particular circumstances. From that date, the previously indivisible Crown was divided into legally separate realm Crowns.
In Australia, the Royal Style and Titles Act 1953 (Cth) gave the Queen a title for use “in relation to the Commonwealth of Australia and its Territories” – the constitutional body politic – as “Elizabeth the Second, by the Grace of God, of the United Kingdom, Australia and Her Other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.” The title expressly included the United Kingdom and applied to the constitutional body politic.
Then in 1973, the Royal Style and Titles Act 1973 (Cth) changed the title in two ways that most Australians have never been told about. First, it removed the reference to the United Kingdom from the title entirely. Second, it changed the operative field from “the Commonwealth of Australia and its Territories” – the constitutional body politic – to “Australia and its Territories” – a geographical expression. The Acts Interpretation Act 1901 (Cth) treats “Australia” as a geographical expression distinct from “the Commonwealth of Australia” as a constitutional body politic. The two are not the same thing.
The 1973 Act therefore did not merely simplify the title. It removed the UK sovereignty reference and relocated the title from the constitutional body politic to a geographical description. The constitutional body politic – the Commonwealth of Australia – continues to be governed by covering clause 2. The 1973 geographical title does not apply to it.
The “King of Australia” – a title without a proper instrument
The Royal Style and Titles are the personal prerogative of the Monarch. They cannot be created by Parliament alone or by executive proclamation. The mechanism under the Royal Style and Titles Act 1973 (Cth) was precise: Parliament gives its assent to the proposed title; the Monarch then issues a Royal Proclamation under the prerogative; the title comes into existence by that Proclamation. Parliament consents. The Monarch acts. Both steps are required.
When Queen Elizabeth II died in September 2022, no Act of Parliament was passed giving parliamentary assent to the adoption by King Charles III of an Australian title by Royal Proclamation. Canada recognised this requirement and passed a new Royal Style and Titles Act 2023. Australia did not. What exists instead is a proclamation by the Governor-General – an executive instrument, not a Monarch’s Royal Proclamation under the prerogative with parliamentary assent. The two instruments are not the same.
The “King of Australia” title therefore lacks the constitutional and prerogative foundation the 1973 Act established as necessary. On a textually precise reading, it is a title asserted by executive proclamation without the proper instrument of its adoption. No court has yet been asked to determine the consequences of that deficiency.
What the schedule to the Constitution says the oath must contain
Schedule 2 of the Constitution sets out the prescribed form of oath and affirmation in these terms:
Oath: “I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. So help me God.”
Affirmation: “I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.”
The schedule then contains a critical direction: “The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.”
Read carefully, this direction does not say “substitute the name of the Australian monarch.” It does not say “substitute the name of the person who currently wears the Crown.” It expressly identifies the Sovereign by reference to the United Kingdom of Great Britain and Ireland — the same sovereignty line that covering clause 2 identifies. The two provisions are mutually reinforcing. Both direct attention to the UK sovereignty line, not to any geographically defined or statutorily created Australian title.
The oath is therefore, on the plain constitutional text, an oath of allegiance to the King or Queen of the United Kingdom of Great Britain and Ireland for the time being. Not to the King or Queen of Australia. Not to a title created by Commonwealth statute. Not to a title asserted by executive proclamation. To the Sovereign of the United Kingdom specifically identified as such.
The practical question
Every member of the current Parliament has taken an oath or affirmation before assuming a seat. The question this article raises is whether that oath, as administered, satisfies the constitutional requirement in section 42 read with Schedule 2.
If the oath administered referred to “His Majesty King Charles III” without expressly identifying him as King of the United Kingdom of Great Britain and Northern Ireland, there is a textual mismatch between what was administered and what the schedule prescribes. The schedule requires substitution of the name of the King or Queen of the United Kingdom. A bare reference to a name, or to a “King of Australia” title that lacks proper constitutional foundation, is not the same substitution.
If the oath was administered using the “King of Australia” title – a title whose proper instrument of adoption has not been provided — the allegiance sworn is to an office that may not be properly constituted. The man is there. The constitutional office, properly constituted with the proper instrument of adoption, may not be.
And if the “King of Australia” title and the “King of the United Kingdom” are legally distinct offices – which, since the division of the Crown in 1953 and the confirmation in Quark Fishing, they are – then swearing allegiance to one does not constitute swearing allegiance to the other. The Crown is not indivisible. The offices are distinct. The schedule identifies one of them specifically.
Why it matters
Every Act of the Commonwealth Parliament depends for its constitutional validity on the Parliament having been properly constituted. The proper constitution of the Parliament requires that every sitting member have satisfied the precondition in section 42 – that the oath or affirmation have been made and subscribed in the form the schedule prescribes. A Parliament in which that precondition has not been properly satisfied is not properly constituted for the exercise of the legislative power the Constitution vests in it.
This is not an argument that every law passed since September 2022 is invalid. Courts would not accept that conclusion as a general proposition. It is an argument that a precise, documented, and unresolved constitutional question exists about whether the oath currently being administered satisfies the requirements of section 42 read with Schedule 2 of the Constitution.
There is one way to resolve it. The subscribed oath is a physical document. Section 42 requires that it be made and subscribed – written down and signed. It exists. Its production for examination answers the question one way or the other.
A note on the word “subscribe”
The Constitution uses the word “subscribe” deliberately. To subscribe is to write underneath – to sign a document as a record of having done what it records. The oath is not merely spoken. It is a document, made and subscribed before the Governor-General or a man authorised by him.
That document is a constitutional instrument. It is the evidence that the precondition in section 42 was satisfied. It should be held on record. It can be produced. A man or woman who has subscribed such an oath and satisfied the constitutional requirement has nothing to fear from its production.
The template letter accompanying this article asks for exactly that production.
Jurare in verba magistri – to swear by the words of the master. The words of Schedule 2 are the master. They identify the sovereign by reference to the United Kingdom. That is what was required to be sworn to. Whether it was sworn to in that form is a question the subscribed instrument answers.
This article is provided for public information and does not constitute legal advice. Men and women who wish to rely on the arguments raised here in specific legal proceedings should seek independent legal advice appropriate to their circumstances.
Notice requiring production of subscribed oath or affirmation of allegiance
Without Prejudice – All Rights Reserved – Without Recourse
Notice requiring production of subscribed oath or affirmation of allegiance
To: The Honourable [Full Name] MP Member for [Electorate] House of Representatives Parliament House Canberra, Australian Capital Territory
Date: [Date]
From: [Full name], of the family [surname] [Address]
Re: Production of subscribed oath or affirmation of allegiance pursuant to section 42 of the Commonwealth of Australia Constitution Act 1900 (UK)
Verba fortius accipiuntur contra proferentem – words are construed most strongly against the one who uses them.
[Full Name],
You are addressed in your capacity as a sitting Member of the House of Representatives for the electorate of [Electorate].
Section 42 of the Commonwealth of Australia Constitution Act 1900 (UK), recorded on the Federal Register of Legislation under base identifier C2004Q00685 (compilation C2013Q00005 C06, dated 29 July 1977), provides:
“Every senator and every member of the House of Representatives 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 word “subscribe” means to write underneath – to sign the document recording the oath or affirmation as taken. The oath or affirmation is therefore not merely spoken. It is a written instrument, made and subscribed, in the form set forth in the schedule. It is a document of constitutional standing. It exists as a physical record.
The schedule to the Constitution provides the prescribed form and expressly directs: “The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.” The allegiance required is therefore expressly directed to the King or Queen of the United Kingdom of Great Britain and Ireland – not to any other title, office, or description.
The author requires you to produce, within [14] days of the date of this notice, the following:
(a) a true and complete copy of the written oath or affirmation of allegiance made and subscribed by you pursuant to section 42 of the Constitution before you took your seat in the House of Representatives, including the full text of the oath or affirmation as administered and subscribed, the date on which it was made and subscribed, and the name and office of the man or woman before whom it was administered;
(b) confirmation of the precise name and title of the Sovereign to whom allegiance was sworn or affirmed, as it appears in the subscribed instrument; and
(c) confirmation that the name and title used in the subscribed instrument accords with the direction in the schedule – that is, that it identifies the King or Queen of the United Kingdom of Great Britain and Ireland for the time being.
Why this is asked
The author is a man, a constituent within the Commonwealth of Australia, whose rights and liberties are affected by the exercise of legislative power by the House of Representatives of which you are a member. Every Act of the Commonwealth Parliament that affects those rights depends for its constitutional validity on the Parliament having been properly constituted. The proper constitution of the Parliament requires, among other things, that every member have satisfied the precondition in section 42 – including that the oath or affirmation have been made and subscribed in the form the schedule prescribes, with the allegiance directed to the King or Queen of the United Kingdom as the schedule expressly requires.
This is not a trivial question. A member of the House of Representatives who has not made and subscribed an oath or affirmation in the form the schedule prescribes has not satisfied the precondition for taking a seat. A Parliament in which members have not properly satisfied that precondition is not properly constituted for the exercise of the legislative power the Constitution vests in it.
The author does not assert that the precondition was not satisfied. The author asks for confirmation that it was, by production of the subscribed instrument. That instrument exists as a matter of constitutional requirement. Its production is a matter of public record and public interest, not a private matter of your office.
Consequence of non-production
Where a document that ought to exist and ought to be held is not produced, the presumption runs against the party failing to produce it — omnia praesumuntur contra spoliatorem. Non-production will be taken as an absence of the subscribed instrument in the form the Constitution requires and will be recorded accordingly.
Silence in response to this notice, where there was a duty and ability to speak, will be taken as consent to the propositions advanced — qui tacet consentire videtur ubi loqui debuit ac potuit.
Please direct your written response to the address below. The full record of this exchange, including this notice, will be retained and placed before any court of competent jurisdiction constituted under Chapter III of the Commonwealth of Australia Constitution Act 1900 (UK) should that become necessary.
All rights are reserved.
By: ________________________
John Henry, of the family Doe
All Rights Reserved
Last Updated 2 months ago
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