Opinion Number. 17

Subject

MEMBER OF PARLIAMENT WHETHER SWEARING IN IS CONDITION PRECEDENT TO TAKING SEAT : YEARLY ALLOWANCE TO MEMBERS

Author
Key Legislation

CONSTITUTION, ss. 42,43, 44,48

Date

On 12 June (Hansard, p. 947) Mr Cameron stated in the House that he had not been properly sworn in. It appears that on 9 May, before the members attended His Excellency the Governor-General to be sworn in, a printed form of the oath of allegiance was handed to Mr Cameron, but no bible was given to him, and he was not called up or asked to subscribe the oath. After the ceremony of swearing in had been concluded, Mr Cameron subscribed the form of oath, and handed it to the Clerk of the House of Representatives.

Mr Barton suggested that, as Mr Cameron was of opinion that he had not taken the oath, he should tender himself to the Speaker to be sworn in. Mr Cameron then subscribed the oath and was sworn by the Speaker.

On 20 June (Hansard, p. 1368) Mr Cameron announced in the House that he intended either to submit the question of the legality of the swearing in of honourable members to an arbitrator, or to test the matter in the Courts.

It appears that Mr Cameron also contended that a member who had not been sworn in accordance with section 42 of the Constitution was incapable of'taking his seat', and could not therefore draw his allowance under section 48; and that accordingly he has not been paid his allowance for the period from 9 May to 20 June.

Mr Cameron has now abandoned this contention, and claims his allowance for that period.

I am of opinion that he is entitled to be paid, and that even assuming him to have been correct in his opinion that he was not properly sworn in on 9 May, his right to the allowance was not thereby affected.

Section 42 provides that 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', the oath of allegiance. This is a clear statutory direction that a member shall make and subscribe the oath before taking his seat, and a wilful breach of the direction would probably render a member liable to a penalty (R. v. Sainsbury 4 T.R. 457); but the words of the Constitution do not justify the view that compliance with the direction is a condition precedent without the performance of which a member cannot 'take his seat'. In other words, the requirement that a member shall take the oath before taking his seat is directory, and not absolute (see Hardcastle, Statutory Law, pp. 260 et seq.) and neglect of the requirement does not invalidate what is done afterwards. This view, which derives support from the affirmative language of the section, is further strengthened by sections 43 and 44, in which the grounds of incapacity are set out in detail.

[Vol. 1, p. 102]