To renew democracy, let’s start by bringing meaning to the ministerial oath of office

The swearing-in ceremony for new ministers is a seminal part of the modest pageantry of Australian democracy. After an election, soon to be ministers arrive polished and dignified, some unusually and even surprisingly so. Grown women and men sit patiently in school-children-like rows as the Governor-General invites each to take the oath or affirmation of office.

After the ceremony, a class photo is taken. In it the mask of solemnity sometimes slips to reveal a very human excitement. This is understandable. After all, these few people have arrived at the pinnacle of Australian executive governance. The fate of the nation genuinely rests in their hands.

What’s in an oath?

The oath or affirmation itself is simple. Ministers commit “to well and truly serve the people of Australia” while bearing “true allegiance to Her Majesty the Queen”.

The current oath is a relatively recent construction, first used in 2013. Over time, Australian prime ministers have seen fit to alter wording of the oath. This has recently involved an unbecoming game of ping-pong over whether to emphasise allegiance to The Queen or to the Commonwealth of Australia – a question far too important to be left to prime ministerial whim.

By convention, ministers are also summoned by the Governor-General to serve as Federal Executive Councillors – a position they hold for life. In practice, though, the Council involves a small select group of ministers from the sitting government. The Council is a hidden, but critical, part of our democracy. It provides the connection point between the temporary power of an elected government and enduring constitutional authority of the Governor-General.

Those summoned to serve as Councillors take a separate oath or affirmation. Under it they commit to “advise the Governor-General to the best of [their] judgement” consistent with the “good government of Australia”. Councillors are further enjoined to “not disclose the confidential deliberations of the Council”. Transparency in democracy has its limits.

Australia’s modest approach contrasts with that of the US. The US Presidential oath is given before a large, apparently hard to count, public audience in a ceremony of pomp and no little circumstance. The oath calls on the President-elect to solemnly swear or affirm to “faithfully execute the Office of President” and to “preserve, protect and defend the Constitution”.

In reality these oaths (used now to include affirmations) play little formal role in either democracy. They are not legally enforceable, at least not directly. Performance against an oath is not monitored. Yet the taking of an oath of office remains an enduring tradition of government – one that dates back to Roman times.

The value of the oath lies in the nature of the commitment it entails and the trust this creates. For a minister, the oath is (or at least should be) a deep personal commitment about future behaviour. Fulfilling your oath cannot be outsourced, nor ducked.

For the rest of us, the oath is intended to provide confidence that, whatever else is happening politically and personally, the overarching focus of a minister will be on well and truly serving the Australian people. It is an obligation that sits above self interest or party interest.

Translating oath to practice

Direct comparisons between Australia and the US can be hard to sustain. Our systems of government represent quite different branches of a similar tradition.  Yet both rest on a core principle that electorally-derived power must be used in the interests of the people. For Australian ministers to well and truly serve the people of Australia, they must use their power to promote the interests of the people.

Defining the interests of the people is no mean feat. It requires ministers and governments to balance reasonably-held differences in claims and views amongst the population, both now and into the future. At the same time, government must position and protect the nation and its institutions in an complex and rapidly changing world. As our recent experience with the pandemic shows, priorities can change quickly. Expertise and evidence, while important and valuable, never provides a single simple answer for ministers or government to follow.

Democracy is by nature designed to resolve these tensions via a contest of ideas. Democracy’s challenge is to promote societal harmony while embracing the robust diverse views this contest requires. Contest cannot be allowed to become stalemate. Compromise is needed. This is no easy task even at the best of times.  And these are not the best of times.

Australian ministers have no detailed guide to follow in well and truly serving the people of Australia or in providing advice consistent with the good governance of Australia. No idiots guide exists to help US Presidents to faithfully execute their office and preserve, protect and defend the constitution. Even if such a guide was written, it could not have the power and authority of Xi Jinping’s The Governance of China series. Democracies simply do not work that way.

Rules do exist, incorporating a mix of lessons from the past and aspirations for the future. Ministers are subject to the laws of the land, not least the Constitution. But laws alone do not a democracy make. Softer guardrails are also needed to ensure that a government formed to serve the people, acts in the interests of the people.

It is here where the oath of office becomes important. Good government relies heavily on the formation of positive conventions which guide the behaviour of those in power. The conventions are both an expression of, and a way of fulfilling, the oath of office. When they break down, democracies can die.

The existence of conventions provides a supple backbone to the laws which formally define our democracy. While ministers have no yellow brick road to follow in discharging their oath of office, conventions provide plenty of road signs to help them.

Conventions are inherently fragile. Breaking a convention in a democracy has no automatic consequence. Censure and sanction can only occur via an act of self regulation from those fulfilling their oath of office or from the people at an election.

By convention, the Prime Minister plays a special role in overseeing the behaviour of other ministers. This is despite no law which requires it, and an oath of office which is no different to the ministers for which the Prime Minister must be responsible.

Where are we heading?

Experts are increasingly concerned about the health of democracy here and elsewhere. This concern is heightened by the apparent and actual successes of China as an alternative system, but is not explained by it. A wave of independent thinkers are now convinced that the triangle of oaths, conventions and laws is no longer delivering the good governance the Australian people deserve.

When considered together, these warnings are of a creeping, rather than catastrophic, failure. Their manifestations – a chipping away of our Constitutional integrity, boundary pushing on the administration of grants, weakening commitments to transparency, gridlock in policy development, a lack of accountability around ministerial advisers, and a weakened public service – all undermine our democracy. The frog of democracy is heating, slowly perhaps, but heating nonetheless.

The ultimate protection in democracy is the ability of people to change government peacefully. It is a powerful, but limited, protection. In the most recent US Presidential election an (almost) peaceful transition of power held firm in the face of the most powerful person on earth failing to observe oath, convention, and possibly law. Less mature and robust democracies have broken under similar pressure.  

Relying on elections to police our quest for good governance should be our last resort, not our first. Ministers of any political persuasion, at any level of government, who argue that ‘the people did not vote us out’ as a defence for not following the practices of good government are failing their oath of office.

The same goes for defences based on pure legality. The fact that a ministerial act is legal does not mean it is well and truly serving the Australian people.

These tests, if normalised, would seriously undermine our democracy. Elections can not possibly act as referenda on the thousands upon thousands of decisions undertaken by ministers during a term of office. Nor can the courts. To think otherwise is democratic folly.

The formal rules of the game are clearly important and a strong case exists for enhancing the formal rules and institutions governing the behaviour of ministers. For the Commonwealth, a properly constituted corruption commission would be a good start. But rules alone are not enough.

The people have a right to expect that ministers and governments will behave within the tolerances of good governance – to well and truly serve the people – without recourse to an election or the enforcement of rules. Our debates, especially those at election time, should not be about how government is operating, but about what government should be delivering for the people it serves.

Towards a better democratic future

Australia is not the United States. Trumpian disregard for the oaths, conventions and laws of good government, which we need to remember came within a whisker of being endorsed electorally by the people, is much less likely here. We are also a long way from endemically bad government. But Australia’s direction of democratic travel is not healthy and the risk of bad practice being normalised is concerningly high.

At a time where Australia wishes to promote the virtues of democracy abroad, we need to arrest the growing gap between oath and practice at home. It is time to reinvest in the structures and behaviours needed to deliver the democracy the Australian people deserve, rather than the democracy they can tolerate.

A good first step would be to lift responsibility for defining the wording of the oath out of the hands of the Prime Minister and place it more directly into the hands of the people.

This could be done a number of ways. One approach would be for government to form an oath commission, drawn 80/20 from invitees drawn by sortition and appointed experts, to consider and propose the wording of a new oath. Final approval could rest with the Governor-General on advice from Executive Council.

Prime Ministers should, by convention, retain the right to convene an oath commission each parliamentary term. In practice, however, commissions are likely to be established only rarely – at times when democratic renewal is needed.

Bringing new meaning to the oath of office is not the only thing we need to do, nor even the most important. But it does matter and could provide a powerful start to the deeper conversation we need to have about the operation of our democracy into the future.

Sean Innis is Principal of Damala St Consulting. Sean is a Fellow of the Australian Studies Institute at The Australian National University and Senior Fellow of ADC Forum.

This article was first published in The Mandarin on 13 October 2021.