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Oaths Modernisation Bill (Consistent) [2005] NZBORARp 14 (26 April 2005)
Last Updated: 6 April 2021
Oaths Modernisation Bill
26 April 2005
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT
1990:
OATHS MODERNISATION BILL 2005 – PCO 6268/7 Our Ref:
ATT114/1371
- We
have vetted this Bill for consistency with the New Zealand Bill of Rights Act
1990 ("the BORA"). We consider that the Bill is consistent
with the rights and
freedoms contained in the BORA.
- The
Bill will "modernise" a range of statutory oaths, one statutory declaration, and
the words of affirmation that may be used instead
of an oath. It provides Maori
translations for all of the oaths, and in relation to the amendments to
affirmations and a declaration,
that are contained in the Bill. The Bill also
includes some other related and largely technical amendments.
- In
reaching the conclusion that the Bill is consistent with the BORA we have
considered two possible issues of inconsistency, which
are set out
below.
Allegiance to the Sovereign
- A
number of the revised wordings for oaths and affirmations that are contained in
the Bill require the swearing or affirmation of
the individual’s "true
allegiance to Her [or His] Majesty [specify the name of the reigning Sovereign,
as in: Queen Elizabeth
the Second], Queen [or King] of New Zealand, her [or his]
heirs and successors". (See for example, new ss 17, 18, 20, and 21 of the
Oaths
and Declarations Act 1957; new regulation 3 of the Defence Regulations 1990; and
new s 37(1) of the Police Act 1958.)
- In Roach
v Canada (Minister of State for Multiculturalism and Citizenship) (CA)
[1994] 2 FC 406 the appellant challenged the validity of the oath required under
the Canadian Citizenship Act 1985 which required the deponent to
swear "true
allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs
and Successors." In particular, it was
alleged that this oath of allegiance
impacted on the appellant’s republican beliefs and was contrary to his
rights to freedom
of expression, freedom of peaceful assembly, freedom of
association, and his equality rights.
- A
majority of the Federal Court of Appeal upheld the lower Court’s striking
out of the appellant’s claim. In reaching
this conclusion, MacGuigan JA
said that the appellant’s rights:
"...cannot conceivably be
limited by the oath of allegiance, since the taking of the oath in no way
diminishes the exercise of those
freedoms. The fact that the oath "personalizes"
one particular constitutional provision has no constitutional relevance, since
that
personalization is derived from the Constitution itself .... That part of
the Constitution relating to the Queen is amendable, and
so its amendment may be
freely advocated, consistently with the oath of allegiance, either by
expression, by peaceful assembly or
by association."
- MacGuigan
JA concluded that the appellant could not "use his dream of a republican
Constitution as a legal basis for denying the legitimacy
of the present form of
government".
- Similarly,
in McGuinness v United Kingdom (application no. 39511/98,
unreported judgment 18 February 1999) the European Court of Human Rights
considered the requirement for
a successful electoral candidate to swear an oath
of allegiance to the sovereign before taking up his or her seat or availing him
or herself of the facilities of the House. The Court held that the requirement
for elected representatives to swear such an oath
of allegiance "forms part of
the constitutional system of the ....State which ....is based on a monarchical
mode of government."
In other words, the Court saw the oath as merely
representing a affirmation of loyalty to the constitutional principles which
support
the workings of representative democracy in the United Kingdom.
- On
the basis of these judgments we have concluded that there is no prima
facie issue of inconsistency with the BORA arising by virtue of the
wording of any oath or affirmation that includes allegiance to the Queen.
As the
Courts in Roach and McGuinness recognised, any
such requirement can be seen as a requirement to affirm or swear loyalty to the
constitutional framework within which
the office-holder will
operate.
Potential impact on freedom of religion
- Section
4(1) of the Oaths and Declarations Act 1957 provides that:
"Every
person shall be entitled as of right to make his affirmation, instead of taking
an oath, in all places and for all purposes
where an oath is required by law,
and every such affirmation shall be of the same force and effect as an
oath."
- Accordingly,
affirmation is an alternative option for any person not wishing to swear an
oath.
- However,
we note that the inclusion of oaths, and not the ceremonies or practices of
other religious beliefs, might be argued to give
rise to issues of inconsistency
with the BORA (as being discriminatory under s 19 or as impacting on the right
to manifest religious
beliefs under s 15).
- In R
v Anderson (2001) CanLII 20027 (MBP.C.) 2 February 2001, the Manitoba
Provincial Court considered a challenge to the constitutionality of certain
provisions of the Manitoba
Evidence Act. Under these provisions a Court may
administer to every witness an oath or affirmation or some alternative
administrative
ceremony which the witness considers binding. In particular, the
presence of the option of swearing an oath on the Bible was challenged
on the
basis that it infringed the right to freedom of religion, conscience and belief
protected by s 2(a) of the Charter of Rights
and Freedoms.
- The
Court held that the inclusiveness of the legislation (i.e. the availability of
affirmation or other ceremonies to bind the witness):
"...need to be
seen as an attempt by the government to ensure that the provisions in the Act
which were designed to ensure truth telling
were also reconcilable with the
pluralistic values that underlies the Charter."
- The
Court did not consider that the purpose of the impugned provisions was
religious; rather, their objective was ensuring, as far
as possible, that
witnesses testifying in Court will tell the truth.
- A
further challenge to the same provisions of the Manitoba Evidence Act was
considered in R v Robinson (2004) CanLII 31391 (MBP.C.) 23
January 2004. In that case, counsel for the accused argued that religious
privacy was at stake. In other words, it was not the
availability of swearing an
oath on the Bible that was offensive per se, but rather, the fact that a witness
was effectively required
to reveal his or her conscience.
- The
Court in Robinson concluded that there is no requirement for a
witness to demonstrate any kind of religious practice in order to testify, and
nor is
a witness compelled to make any religious statements or reveal his or her
conscience in order to give evidence. It also held that
the provisions in
question did not breach the equality rights protected by s 15 of the
Charter.
- To
the extent that any issues of inconsistency with the BORA arise due to the
inclusion of oaths but not the ceremonies or practices
of other religious
beliefs, these are justified limitations on the rights concerned because of the
availability of affirmation as
an alternative to swearing an
oath.
Conclusion
- We
consider that the Oaths Modernisation Bill is consistent with the BORA. To the
extent that any issue of inconsistency with the
BORA arises due to the inclusion
of oaths, and not the ceremonies or practices of other religious beliefs, we
consider that these
are justified limitations on the rights concerned.
- Finally,
we note that this advice is based on PCO 6268/7. We have been advised that a
further version will be prepared prior to LEG’s
consideration of the Bill.
In the event that any of the changes included in the final version give rise to
significant BORA issues,
we will provide you with further
advice.
Yours sincerely
Val Sim Crown Counsel
|
Allison Bennett Associate Crown Counsel
|
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Oaths
Modernisation Bill. It should not be used or acted upon for any other purpose.
The advice does no more than
assess whether the Bill complies with the minimum
guarantees contained in the New Zealand Bill of Rights Act. The release of this
advice should not be taken to indicate that the Attorney-General agrees with all
aspects of it, nor does its release constitute a
general waiver of legal
professional privilege in respect of this or any other matter. Whilst care has
been taken to ensure that
this document is an accurate reproduction of the
advice provided to the Attorney-General, neither the Ministry of Justice nor the
Crown Law Office accepts any liability for any errors or omissions.
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