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Tuesday, 3 December 1974
Page: 3059


Senator MURPHY (New South WalesAttorneyGeneral) - May I endeavour to justify my argument in relation to the example which Senator Sir Magnus Cormack raised. He referred to barristers. The only oath or affirmation which a barrister is required to make in New South Wales, in any event, is one of allegiance; no other. In the case of a solicitor, it is true -


Senator Jessop - What does allegiance mean?


Senator MURPHY - The oath of allegiance which appears in the Constitution. The honourable senator asks what it means. I suppose that question would give rise to a very long discussion in the courts, and I suppose it has done so on occasions. I think there was a treason case in which there was considerable discussion on it. But leave that matter aside for the moment. The only oath or affirmation one is required to make is one of allegiance. It is true that solicitors also are required to make an oath or affirmation that they will in effect perform their duties properly.


Senator Marriott - So do boy scouts, do they not?


Senator MURPHY - I am not as familiar with the boy scout movement as the honourable senator appears to be. Consider the example of the barrister. The question of barristers was put to me some time ago- if Senator Greenwood casts his mind back I think he will agree that it was in the time he was Attorney-General- by the senior judge of one of our courts. I can check the matter but my recollection- I was reminded of this fairly recently- is that the proposal was that this be deleted from the requirements in relation to a barrister.

The reason behind this was that there were people from, say, Papua New Guinea and other places who might want to come here, study for their course and be admitted. This was causing embarrassment and it was serving no really useful purpose. I recall that when I saw this I said: 'I will carry this out but one thing I am determined to do is to show from where the suggestion emanated'. Otherwise it would be put that we were in some revolutionary way trying to oppose the legal profession for no purpose. It is the fact that one finds all sorts of difficulties occurring to no good purpose. We have the obligation, whether in regard to a barrister, a solicitor or an employee of the Public Service, to ensure that they observe the law. This requirement still remains in the Public Service Act. That they will carry out all their duties is spelled out in various ways, and I do not need to refer to those requirements again because they are set out in section 55 and section 56 of the Act. We have the provisions in the Crimes Act which also cover their conduct. There is no need to require them to take this oath with provision for some kind of vague obligation or offence if it were broken.

We have the example of the States of Australia, which to this day do not have the requirement of the taking of an oath or an affirmation. This being so, all State Liberal and Labor governments and their parliaments have lived with this situation and have not found the necessity to have this requirement. Apparently practical difficulties are caused to some people whom we might want to be officers of the Public Service and who happen to have another nationality. Why bring in this requirement that they take an oath which might cause them to be stateless, which is the penalty of becoming an officer of this Service? It is demonstrably not necessary. It is not desirable. Every purpose which it could achieve is achieved by putting specific requirements in the law. Those requirements are there, and I say this is just an endeavour to turn back the clock. We have now reached the position where no government in Australia has a law which requires its employees to take this oath or affirmation. Why should we re-introduce it?


Senator Sir Magnus Cormack - What about a justice of the peace? He has to take an oath.


Senator MURPHY - I am talking about employees. I suppose one may cite the case of a justice of the peace. I would think that such cases ought to be examined. I think it will become apparent to everyone that much of this kind of material will disappear from the law, and probably it ought to disappear in the case of a country with a large migrant population. What is happening is that commonsense and the necessities of life are getting us to rely upon the specific provisions, specific offences, and specific obligations, instead of these vague kinds of oaths which cause difficulty to those who may have another nationality.







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