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Part D - Specific Oaths

1. Introduction
2. Oath of allegiance
    2.1 Background
    2.2 Matters to consider
    2.3 Overseas comparisons
    2.4 Questions
3. Governor-General's oath
    3.1 Background
    3.2 Matters to consider
    3.3 Overseas comparisons
    3.4 Questions
4. Government Minister's oath (Executive Councillor's oath)
    4.1 Background
    4.2 Overseas comparisons
    4.3 Questions
5. Parliamentary oath
    5.1 Background
    5.2 Matters to consider
    5.3 Overseas comparisons
    5.4 Questions
6. Judicial oath  
    6.1 Background
    6.2 Matters to consider
    6.3 Overseas comparisons
    6.4 Questions
7. Citizenship oath
    7.1 Background                                      
    7.2 Matters to consider                                  
    7.3 Overseas comparisons
    7.4 Questions                                
8. Police oath
    8.1 Background                                     
    8.2 Matters to consider                                 
    8.3 Overseas comparisons                                
    8.4 Questions
9.  Armed forces' oath                                                     
    9.1 Background                                      
    9.2 Matters to consider                                  
    9.3 Overseas comparisons                                
    9.4 Questions

 

Part D - Specific Oaths

1.             INTRODUCTION

This part of the paper identifies several oaths on which we would like specific comment. For each of the oaths discussed in this part of the paper we would like you to consider:

  • whether the oath adequately reflects the values and beliefs important to New Zealanders in the 21st century;

  • whether the language of the oath requires modernising; and

  • options for changing, modernising, replacing or removing the oath.

You can provide your views on these matters by answering the questions that follow the discussion of each oath.

The oaths discussed in this part of the paper are: ]

  • the oath of allegiance; the Governor-General's oath;

  • Government Ministers' oath (Executive Councillors' oath);

  • the parliamentary oath (taken by Members of Parliament);

  • the judicial oath; the citizenship oath; the police oath; and

  • the armed forces' oath.

These oaths are discussed separately because changing, removing or replacing them may give rise to unique or interesting issues that may be of interest to those required to take the oaths and the general public.

Changing, removing or replacing the oaths taken by the police, the armed forces and Judges could potentially have legal, employment or constitutional consequences. These are discussed in the sections dealing with these oaths and must be carefully considered when thinking about any changes.

The oath of allegiance, the parliamentary oath and the citizenship oath have all given rise to debate about whether they reflect relevant values and beliefs and are appropriate for the roles they relate to.

2.     OATH OF ALLEGIANCE

2.1       Background

A number of public office holders must take the following oath of allegiance set out in the Oaths and Declarations Act 1957[17].

 

"I, [full name], swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law. So help me God."

 

The Governor-General, Members of Parliament and Judges are among those required to take the oath of allegiance. Justices of the Peace, Community Magistrates, coroners, sheriffs and referees of Disputes Tribunals must also take the oath of allegiance (in addition to the judicial oath)[18]. The Governor-General, Judges and Government Ministers take a separate oath of office in addition to the oath of allegiance. Oaths such as the citizenship oath, the police oath and the armed forces' oath also require allegiance to the Queen but include other promises as well.

The purpose of the oath of allegiance is to affirm loyalty to the Queen. It is not an oath of office because it does not include promises about the duties and responsibilities of a particular role or office.

2.2     Matters to consider

Various objections to the oath of allegiance have been raised in the past.

Objections to pledging allegiance to the Queen have come from those who believe New Zealand should be a republic with a New Zealand Head of State.  Other objections include that the oath contains no pledge of duty to New Zealand or the people of New Zealand and is silent on the duties and responsibilities of the office being taken up and how it should be carried out. Some wish to swear allegiance to other things, such as the Treaty of Waitangi[19]. There is also an argument that having a formal oath of allegiance is unnecessary given that a duty of allegiance exists without the oath.

It could be argued that the oath of allegiance contains an additional religious element because the Queen is the head of the Church of England.  Someone with no religious beliefs, or different religious beliefs, may object to swearing allegiance to someone who holds this position. This issue has been considered in Canada where the court concluded that allegiance is to the Queen in her capacity as Head of State and has no relation to the Queen's role as head of the Church of England[20].

Breaching the duty of allegiance to the Queen can amount to the crime of treason. In New Zealand, the Crimes Act 1961[21] sets out the provisions for treason. Treason is committed where a person "owing allegiance to Her Majesty the Queen in right of New Zealand" does certain acts such as levying war or assisting an enemy at war. A person owing allegiance to the Queen may also commit the crimes of incitement to mutiny, espionage and wrongful use of official documents[22].

There are few prosecutions for treason and its related crimes. There have been no recent New Zealand prosecutions under any of these provisions. Since the duty of allegiance exists independently of taking an oath of allegiance, repeal or amendment of the oath of allegiance is unlikely to have any effect on the definition of the crime of treason.

2.3     Overseas comparisons

Many public office holders in other Commonwealth countries must take an oath of allegiance similar to New Zealand's. As in New Zealand, some of these public office holders must also take a separate oath of office.

2.4    Questions

 
15. Do you think it is important that public office holders swear allegiance to the Queen?

16. Do you think the oath of allegiance should be:

a)        retained?

b)        retained but amended?

c)        abolished?

d)        replaced with a less formal declaration?

e)        other? (please specify)

Please give reasons for your answer.

17.  Do you think the values and beliefs reflected in the oath of allegiance are important for the swearing in of public office holders? What changes, if any, would you make to the values and beliefs reflected in this oath?

18.  Do you think the language/wording used in the oath of allegiance needs to be changed in any way (e.g. does it need updating)?

19. Do you think the oath of allegiance should be compulsory or voluntary for some or all public office holders? Please specify.

20. Do you think that public office holders who are required to take the oath of allegiance should be required to take an oath of office instead of, or in addition to, the oath of allegiance?

 

3.     GOVERNOR-GENERAL'S OATH

3.1     Background

In addition to the oath of allegiance, the Governor-General must take the following oath of office[23]:

 

"I, AB, swear that I will duly and impartially serve Her Majesty Queen Elizabeth the Second, Her heirs and successors, in the Office of Governor-General and Commander-in-Chief in and over Her Realm of New Zealand, comprising New Zealand, the self-governing state of the Cook Islands, the self-governing state of Niue, Tokelau, and the Ross Dependency, in accordance with their respective laws and customs. So help me God."

 

 

The Governor-General is the Queen's representative in New Zealand[24]. He or she is appointed by the Queen on the advice of the New Zealand government. Dame Silvia Cartwright is the current Governor-General.

The Governor-General's role has three parts - a constitutional role, a ceremonial role and a community role.  In the constitutional role the Governor-General's duties ensure the continuity and legitimacy of government. For example, the Governor-General agrees to bills passed in Parliament, appoints Government Ministers and Judges, and calls Parliament together, or dissolves or adjourns it.

In the ceremonial role the Governor-General takes part in ceremonies such as the opening of new sessions of Parliament, welcoming visiting Heads of State from other countries, receiving foreign diplomats, and holding ceremonies for people who have been awarded honours.

The busiest part of the Governor-General's job is the community role.  The Governor- General travels throughout the country and meets and talks to thousands of New Zealanders.  The Governor-General also gives many speeches on important topics affecting New Zealanders.

The Governor-General acts on the advice of Government Ministers unless the Government has lost the support of Parliament. Only rarely can the Governor-General exercise personal discretion, under what are known as the "reserve powers".  Even then, convention usually says what should happen.

If for any reason the Governor-General cannot carry out the duties of office (for example, if he or she is overseas), an "acting Governor-General", known as the Administrator of the Government, may carry out the Governor-General's functions.  The first in line to be the Administrator is the Chief Justice, followed by the President of the Court of Appeal, and then the Senior Judge of that court. The Administrator must take a similar oath to that taken by the Governor-General.

 

3.2     Matters to consider

As the Queen's personal representative, it may be appropriate that the Governor-General takes an oath of allegiance to the Queen. If the current oath of allegiance were to be abolished or changed for other roles, it may still be desirable to keep an oath of allegiance to the Queen for the Governor-General.  

3.3     Overseas comparisons

Australia

The Australian Governor-General takes an oath of allegiance (similar to New Zealand's) and the following separate oath of office[25]:

"I, [name], do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So help me God[26]."

Canada

The Canadian Governor-General takes an oath of allegiance and two oaths of office:

Oath of allegiance:

"I, [name], do swear that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and successors.  So help me God[27]".

Official Oaths:

"I do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, in the office of Governor-General and Commander-in-Chief of Canada, and duly and impartially administer justice therein.  So help me God."

  "I do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second in the office of Keeper of the Great Seal of Canada.  So help me God."

Jamaica

Despite removing reference to the Queen from its oath for Members of Parliament, Judges and government officials, the Jamaican Governor-General's oath has stayed the same, with continued reference to allegiance to the Queen.

3.4     Questions

 
21.  Do you think it is important for the Governor-General, as the Queen's representative in New Zealand, to take an oath of allegiance to the Queen?

22. Do you think it is important for the Governor-General to take a separate oath of office?

23. Do you think the values and beliefs reflected in the Governor-General's oath of office are important for the swearing in of the Governor-General? What changes, if any, would you make to the values and beliefs reflected in this oath?

24.  Do you think the Governor-General's oath of office adequately reflects the most important duties and obligations of the office and the way those duties and obligations should be carried out?

25.  Do you think the language/wording used in the Governor-General's oath of office needs to be changed in any way (e.g. does it need updating)?

26. Do you think the Governor-General's oath of office should be:

a)        retained?

b)        retained but amended?

c)        abolished?

d)        replaced with something else (e.g. a less formal declaration option)?

e)        other? (please specify)

  Please give reasons for your answer.

4.     GOVERNMENT MINISTERS' OATH

(Executive Councillors' oath)

 

4.1     Background

As Members of Parliament, Government Ministers are required to take the oath of allegiance. In addition, Government Ministers must also take the following Executive Councillors' oath[28]:

 

"I, [full name], being chosen and admitted of the Executive Council of New Zealand, swear that I will to the best of my judgement, at all times, when thereto required, freely give my counsel and advice to the Governor-General for the time being, for the good management of the affairs of New Zealand.

That I will not directly nor indirectly reveal such matters as shall be debated in Council and committed to my secrecy, but that I will in all things be a true and faithful Councillor. So help me God."

 

 All Government Ministers are members of the Executive Council. The Governor-General appoints Executive Councillors on the advice of the Prime Minister. The Governor-General also presides over meetings of the Executive Council.

The role of Executive Council is to give legal effect to certain Government decisions, most commonly by making regulations. Some other matters, such as significant public appointments and the setting up of Commissions of Inquiry, must be put to the Executive Council before they can have legal effect.

The current Government Ministers' oath has two main elements: the obligation to give advice to the Governor-General and the promise to keep secret what is discussed in Executive Council. These parts of the oath are longstanding, and are also in comparable overseas oaths.

4.2         Overseas comparisons

Many equivalent overseas oaths are very similar to New Zealand's. However the Jamaican Government Ministers' oath contains a number of different ideas.

Australia

Federal Executive Councillors' oath

Currently, members swear or affirm that they "will, when required, advise" the vice-regal representative, "to the best of [their] judgment, and consistently with the good government of the Commonwealth of Australia" and also "will not disclose the confidential deliberations of the Council."

Ministerial oath

While all members of the Australian Federal Parliament must take an oath of allegiance to the Queen, the same does not apply to Government Ministers. In 1993 a new version of the ministerial oath was introduced by the Governor-General acting on ministerial advice. The new oath was taken for the first time at the swearing in of the new Attorney-General, Michael Lavarch. The oath made no mention of "Her Majesty Queen Elizabeth the Second, Her heirs and successors".  Mr Lavarch instead swore to "well and truly serve the Commonwealth of Australia".

Canada

Oath of the Members of the Privy Council:

"I, [name], do solemnly and sincerely swear [declare] that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty's Privy Council for Canada.  I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion.  I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council.  Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.  So help me God."

Jamaica

Oath for the office of Prime Minister, or other Minister or Parliamentary Secretary:

"I, [name], being appointed Prime Minister/Minister/Parliamentary Secretary, do swear that I will to the best of my judgment, at all times when so required, freely give my counsel and advice to the Governor-General (or any other person for the time being lawfully performing the functions of that office) for the good management of the public affairs of Jamaica, and I do further swear that I will not on any account, at any time whatsoever, disclose the counsel, advice, opinion or vote of any particular Minister or Parliamentary Secretary and that I will not, except with the authority of the Cabinet at to such extent as may be required for the good management of the affairs of Jamaica, directly or indirectly reveal the business or proceedings of the Cabinet or the nature or contents of any documents communicated to me as a Minister/Parliamentary Secretary or any matter coming to my knowledge in my capacity as such and that in all things I will be a true and faithful Prime Minister/Minister/Parliamentary Secretary.  So help me God."

4.3 Questions

 

27. Do you think it is important for Government Ministers to take an oath in their capacity as members of the Executive Council?

28. Do you think the values and beliefs reflected in the oath taken by Government Ministers (Executive Councillor's oath) are important for the swearing in of Executive Councillors? What changes, if any, would you make to the values and beliefs reflected in this oath?

29.  Do you think the oath taken by Government Ministers adequately reflects the most important duties and obligations they have as Executive Councillors and the way those duties and obligations should be carried out?

30. Do you think the oath taken by Government Ministers adequately reflects who they, as Executive Councillors, serve and owe loyalty to?

31.  Do you think the language/wording used in the oath taken by Government Ministers should be changed in any way (e.g. does it need updating)?

32. Do you think the Executive Councillor's oath should be:

a)        retained?

b)        retained but amended?

c)        abolished?

d)        replaced with a less formal declaration?

e)        other? (please specify)

  Please give reasons for your answer.

33. Do you think the oath taken by Government Ministers should be compulsory or voluntary?

 

5.     PARLIAMENTARY OATH

5.1     Background     

After an election Members of Parliament must take the following oath of allegiance set out in the Oath and Declarations Act[29].  Members do not take a separate oath of office.

 

"I, [full name], swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law. So help me God."

 

The purpose of the oath is to affirm loyalty to the Queen. If the oath is not taken Members cannot sit or vote in the House[30].

5.2     Matters to consider

From time to time Members of Parliament have expressed concern about the oath of allegiance, particularly having to swear allegiance to the Queen. For some, this is related to the republican debate and the desire to have a New Zealand Head of State. Others consider that they serve and owe loyalty to the people of New Zealand who elected them.  Another objection is that the oath does not include any promise to uphold democracy, democratic beliefs or values or any promises related to the duties and responsibilities of a Member of Parliament.

In 1994[31], Tau Henare MP noted that he had crossed his fingers when he took his oath of allegiance as a member of Parliament, and that his allegiance was primarily to New Zealand as a country. In 1999, Hon Margaret Wilson, in her maiden speech, called for Members of Parliament to replace their oath of allegiance to the Queen with a pledge of loyalty to the New Zealand people. Also in 1999, Keith Locke MP, in his maiden speech, called for an option of an oath without any reference to the Queen. Hon Tariana Turia has raised the issue of swearing allegiance to the Treaty at each swearing-in as a Member of Parliament since she was first elected in 1996.

Some people consider that Members of Parliament should not have to take an oath at all because it could be seen as an extra qualification for office. They argue that in a democracy the voters alone should determine who sits in Parliament.

5.3     Overseas comparisons

Most Commonwealth countries require Members of Parliament to take an oath of allegiance to the Queen.

Australia

Except in the Australian Capital Territory (ACT), all members of Australian Parliaments must take an oath of allegiance. In individual States this requirement is set out in ordinary legislation and can be changed at any time. In the Federal Parliament the requirement is constitutional and can only be changed by formal amendment of the Constitution.

ACT has slightly different constitutional arrangements. Members of the ACT Parliament have a choice whether to take the traditional oath of allegiance to the Queen, or an oath to "faithfully serve the people of the Australian Capital Territory as a member of the Legislative Assembly and discharge my responsibilities according to law[32]."

In 2001, an Australian parliamentary committee recommended that the oath of allegiance taken by Members of Parliament and Senators be changed to refer to a duty to the Australian peoplep[33]. This would require a change to the Constitution. The Committee also recommended that the proposal be considered in a referendum. The Government has not yet responded to the Committee's report.

United Kingdom

From time to time members of the United Kingdom Parliament have tried to remove the requirement for their Members of Parliament to take the oath of allegiance.  In 1998, MP Kevin McNamara tried to introduce a Members Bill to allow Members of Parliament to take their seat without an oath.  Neither this nor other Members' Bills about the parliamentary oath have been successful.

5.4     Questions


34. Do you think it is important for Members of Parliament to take an oath?

35. Do you think it is important for Members of Parliament to swear allegiance to the Queen? 

36. Do you think the values and beliefs reflected in the oath of allegiance are important for the swearing in of Members of Parliament? What changes, if any, would you make to the values and beliefs reflected in this oath?

37. Do you think the oath of allegiance adequately reflects the most important duties and obligations of Members of Parliament and the way those duties and obligations should be carried out?

38. Do you think the oath of allegiance adequately reflects who Members of Parliament serve and owe loyalty to?

39. Do you think the language/wording used in the oath of allegiance should be changed in any way (e.g. does it need updating)?

40. Do you think Members of Parliament should take an oath of office instead of, or in addition to, the oath of allegiance? If so, what ideas do you think should be included (e.g. commitment to democracy, duty to serve the people of New Zealand, etc)?

41. Do you think the oath of allegiance oath should be compulsory or voluntary for Members of Parliament?

42. Do you think Members of Parliament should be given options as to what oath/s they take? Options could include the traditional oath of allegiance to the Queen or an oath of office (that doesn't refer to the Queen) or both.

 

 


[17] Section 17

[18] Section 22(1) and Schedule 2 Oaths and Declarations Act 1957

[19] Hon Tariana Turia has raised the issue of swearing allegiance to the Treaty of Waitangi at each swearing-in as an MP since she was first elected to Parliament in 1996.

[20] Roach v Canada [1994] 3 FC 406

[21] Section 73

[22] Sections 77, 78 and 78A Crimes Act 1961

[23] Clause 6 Letters Patent Constituting the Office of the Governor-General of New Zealand 1983

[24] The Governor-General's oath reflects the fact that the Governor-General's role extends beyond New Zealand itself to the whole "Realm of New Zealand", which consists of New Zealand, the Cook Islands, Niue, Tokelau and the Ross Dependency.

[25] Section III(d) 4 Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia 1984

[26] Section V(b) Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia 1984

[27] Letters Patent Constituting the Office of Governor-General of Canada

[28] Section 23 Oaths and Declarations Act 1957

[29] Section 17

[30] Section 11 Constitution Act 1986

[31] In a debate on an amendment to the Flags, Emblems, and Names Protection Act 1981

[32] Section 6A Oaths and affirmations Act 1984 (ACT)

[33] House of Representatives Standing Committee on Procedure, Balancing tradition and progress: Procedures for the opening of Parliament, Commonwealth Parliament, House of Representatives, Standing Committee on Procedure at 3.51, 4.18 and recommendation 5.


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