It is clear from the case of Moller below that after seeking an order of the Supreme Court Rules Moller attempted to be excused from taking the oath of allegiance as prescribed. Moller over the passage of time to become an Australian citizen had a conscientious objection to taking an oath of allegiance to Her Majesty the Queen but the Court clearly stated one must swear an oath of allegiance, this is clearly based on the facts Australia is still a Constitutional Monarchy.
SUPREME COURT OF VICTORIA |
|
PRACTICE COURT |
|
Not Restricted |
No. 4480 of 1999
CARL THEODORUS MÖLLER |
Plaintiff |
v. |
|
THE BOARD OF EXAMINERS FOR LEGAL PRACTITIONERS |
Defendant |
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| JUDGE: | BEACH, J. | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 1 MARCH 1999 | |
| DATE OF JUDGMENT: | 10 MARCH 1999 | |
| CASE MAY BE CITED AS: | MÖller v. The Board of Examiners | |
| MEDIA NEUTRAL CITATION: | [1999] VSC 55 | |
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CATCHWORDS: Legal Practitioners - Admission to practice - Application by candidate to be excused from taking oath of allegiance - Applicant citizen of Australia - Applicant republican - Conscientious objection - Lack of prejudice to applicant - Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. M. Bevan-John | Clayton Utz |
| For the Defendant | Mr. M. Dowling Q.C. and
Mr. A. Clements |
HIS HONOUR:
The applicant Carl Theodorus Möller was born in Johannesburg in the Republic of South Africa on 24 March 1972. In April 1989 he left South Africa with his family and moved to New Zealand.
In February 1991 the applicant and his family emigrated to Australia. The applicant (and I presume his family) had been granted permanent resident status in this country.
Between February 1991 and February 1997 the applicant was a student at the University of Tasmania.
In May 1995 the applicant graduated with the degree of Bachelor of Arts with Honours. In May 1997 he graduated with the degree of Bachelor of Laws with First Class Honours.
At some time during 1992 or 1993 the applicant made enquiries about becoming an Australian citizen. As a result of the enquiries he learned that in order to become an Australian citizen it would be necessary for him to swear an oath of allegiance to Her Majesty the Queen. As the applicant is a staunch republican and believes that any oath of allegiance should be to Australia rather than to The Queen, he did not pursue an application to become an Australian citizen at that time.
At some time in 1994 the process of obtaining Australian citizenship changed in that as from that time applicants for Australian citizenship were no longer required to swear an oath of allegiance to The Queen but were required to make a pledge to Australia.
Pursuant to the provisions of s.15 of the Australian Citizenship Act 1948 the pledge an applicant is required to make can be in either of the following forms:
"FORM OF PLEDGE NO. 1
From this time forward, under God,
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey.
FORM OF PLEDGE NO. 2
From this time forward,
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey."
As a result of the change, and in February 1995 the applicant became an Australian citizen.
In June 1997 the applicant moved from Hobart to Melbourne where he took up part-time employment as a paralegal with a Melbourne firm of solicitors.
In September 1997 the Commonwealth Government appointed the applicant one of the 36 non-parliamentary delegates to the Constitutional Convention. In February 1998 the applicant attended the Convention in Canberra.
In March 1998 the applicant entered into articles with a member of the firm of solicitors at which he had worked as a paralegal.
Once the applicant completes his articles he will have completed all requirements for admission to legal practice in this State.
The applicant now seeks an order under Rule 14.06 of Order 14 of Chapter II of the Supreme Court Rules that he be excused from taking the oath of allegiance prescribed by Rule 14.05 of that order. Those rules read:
"[II 14.05] Oaths - Forms 2-14A and 2-14B
14.05 (1) A person applying to be admitted to legal practice in Victoria shall take the oath of allegiance and an oath of office.
(2) The oath of allegiance may be in Form 2-14A and the oath of office may be in Form 2-14B.
[II 14.06] Excuse
14.06 (1) The Court may upon application excuse a person from taking the oath of allegiance.
(2) The application shall be made by originating motion and heard no later than 30 days before the first day of the month in which application for admission to legal practice is to be sought."
The rules were passed to enable the Court to meet the requirements of s.6(1)(c) of the Legal Practice Act 1996. Section 6(1) of the Act reads:
"6. Admission to legal practice
(1) The Supreme Court may admit a person to legal practice in Victoria if he or she -
(a) meets the requirements of the admission rules; and
(b) pays the admission fee; and
(c) takes the oath, or makes the affirmation, required by the Court."
The reason why the applicant seeks to be excused from complying with Rule 14.05 is set out in his affidavit sworn 23 February 1999 the relevant paragraphs of which read:
"18. I have a conscientious objection to taking an oath of allegiance to Her Majesty the Queen.
19. My objection is bona fide and unrelated to any disloyalty or lack of respect for either the laws of Australia or Her Majesty the Queen. Rather, my objection stems from my sincere and genuine belief that to take an oath is a solemn, serious and sincere act which should not be undertaken lightly or without full and proper consideration of its content and import.
20. Given my belief as to the solemn, serious and sincere nature of an oath, my conscientious objection to taking an oath of allegiance to Her Majesty arises as follows:
(a) I believe that Australia should adopt a republican form of government.
(b) I am committed to amendment of the Commonwealth Constitution so as to achieve that republican form of government and am an advocate for that cause. This is consistent with the role I have played to date as well as the role I have played in the Constitutional Convention referred to above and with the part I intend to take in the campaign prior to the forthcoming Constitutional referendum on the issue and the vote I intend to cast in that referendum.
(c) I believe that my advocacy for an Australian republic will be compromised by having made an oath of allegiance to Her Majesty the Queen. I would be troubled, having sworn my allegiance to Her Majesty as Queen of Australia, by advocating a cause which proposes the discontinuation of Her position as such. In this regard, it has been my experience that it is not uncommon for advocates of an Australian republic who have sworn an oath to the Queen in some capacity or other to be accused of inconsistency or hypocrisy in their position on the issue of the republic.
(d) Upon reflection, the particular oath of allegiance I would be required to swear on admission to legal practice is restrictive in that it requires that allegiance be sworn to Her Majesty the Queen and does not provide for allegiance to Her heirs and successors according to law.
21. I am genuinely troubled about swearing an oath of allegiance to Her Majesty the Queen when Her Majesty has little to do with the practical governance of Australia.
22. Since my status as an Australian citizen has not depended on my making an oath of allegiance to Her Majesty the Queen and I in fact delayed becoming a citizen until such time as I could make a commitment to Australia, I am genuinely troubled by any requirement that I make an oath to Her Majesty as Queen of Australia.
23. I make this application to this Honourable Court genuinely and sincerely. I have spent considerable time reflecting upon the matters of conscience upon which it is grounded. I am genuinely troubled by having to swear an oath:
(a) the substance of which I do not actually believe; and
(b) which is inconsistent with my stated beliefs as to the continuation of Her Majesty's position as the Australian Head of State."
The concept of allegiance was considered by Ormiston, J. (as he then was) in Nicholls v. Board of Examiners for Barristers and Solicitors [1986] V.R. 719. At p.728 his Honour said:
"Allegiance is a concept which is at the same time both obvious and subtle. Its precise nature has varied over the centuries in ways which it is unnecessary to discuss here. For those reasons it is undesirable to say more about the duty of allegiance than is necessary for the decision in this case. It should be observed, however, that it is not now an obligation peculiar to monarchical systems of government, whatever may have been its basis in Stuart times: cf. the Case of the Postnati:: Calvin's Case (1608) 7 Co. Rep. 1a; 2 State Trials 559; 73 E.R. 761 and Re the Stepney Election Petition (1886) 17 Q.B.D. 54. Secondly, the present case does not concern the oath of allegiance to be given by a subject, national or citizen. Even when an alien had virtually no rights, the correlative right of protection by the sovereign was sufficient to justify a duty of allegiance on the part of aliens, at least aliens from friendly countries, who lived within the realm. Since the disabilities of aliens have been largely abolished, except as to the right of entry into the country, their duty of allegiance, when they live within this country, cannot be disputed. On the other hand, I have found no authority, at least since the Middle Ages, which suggests that the taking of an oath of allegiance creates any new or different obligation on a resident foreign national. In making this latter observation, I am in no way referring to those oaths which are taken as part of a naturalization ceremony or which otherwise contain a renouncing of all other allegiance, as appears in the oaths in Schedules 2 and 3 to the Australian Citizenship Act 1948. I add that what I have said as to the status of aliens appears applicable to all those who do not owe a general duty of allegiance and I say nothing as to the effects of the repeal of the Aliens Act 1947 and the prospective repeal of the definition of 'alien' in the Australian Citizenship Act 1948 (Act No. 129 of 1984, s.4(2)(a)).
Consequently there would appear to be significant differences between the local duty of allegiance owed by aliens or non-citizens, and that owed by citizens or those who otherwise owe a general duty of allegiance. When Parliament amended s.5(2) of the Legal Profession Practice Act 1958, it chose to retain the obligation to take an oath of allegiance for those who wished to become admitted to practise, but gave a right to those applicants to seek exemption from that obligation. As was pointed out by the Chief Justice in Re Miller [1979] V.R. 381, at p.383, this appears to be a recognition by Parliament of the importance attaching to that obligation. It is therefore neither necessary nor desirable that any opinion should be expressed as to the right of persons other than aliens or non-citizens to seek exemption under the amended sub-section. The present applicant is a citizen of a foreign country and the considerations applicable to him are not necessarily considerations applicable to citizens of this country, nor to persons who may hold dual citizenship."
Australia is a constitutional monarchy. Rule 14.05 requires the applicant to swear an oath of allegiance to its Head of State Her Majesty The Queen.
The form of the oath in Form 2-14A reads:
"I swear by almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second by the grace of God Queen of Australia and Her other realms and territories Head of the Commonwealth."
In my opinion it is clear from the form of the oath that the applicant is required to swear allegiance to Her Majesty not as Queen of England or any other of Her realms but as Queen of Australia and Head of the Commonwealth.
In doing so he would be doing no more than swearing allegiance to the Head of State of the country of which he is now a citizen.
When he chose to come to Australia the applicant must have known full well that Australia is a constitutional monarchy with Her Majesty The Queen as its Head of State. He would also know that Australia is a member of the Commonwealth.
Once the applicant became a citizen of this country he assumed a duty of allegiance to Australia and to its Head of State. The requirement that he take an oath of allegiance as a condition of being admitted to practise is nothing more than a recognition of that duty. The taking of an oath of allegiance to Her Majesty as Queen of Australia amounts to no more, in my opinion, than taking an oath of allegiance to Australia.
The fact that the applicant is a dedicated republican is not to the point. The swearing of the oath will not change that fact nor will it prejudice the applicant in that regard.
By s.8(1) of the Legal Practice Act 1996 a person admitted to legal practice is an officer of the Supreme Court. Generally speaking that was not previously the case. See s.8 of the Legal Profession Practice Act 1958.
If the applicant is to become an officer of the Court I consider it is appropriate that he swear an oath of allegiance to the Head of State of this country in the same fashion as any other officer of the Court.
The applicant's application is refused.
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