No. 254 Sitting period 16 - 25 August 2011 26 August 2011 Occasional Note

Swearing-in of Senators and Members Outside of General Elections

A number of jurisdictions within Australia and the Commonwealth stipulate that new members must be sworn in before ‘taking their seat’. In many cases this is a constitutional requirement. After an election, by-election or filling of a casual vacancy, and upon the return of the writs, certificates of election or certificates of choice, new members and senators are required to swear an oath or make an affirmation or pledge and sign the Roll before taking their allocated seat and participating in chamber proceedings.

In particular circumstances the members or senators are also ‘introduced’ to the chamber as part of the swearing-in process. This ‘introduction ceremony’ involves a new member being admitted to the chamber from either outside the chamber, below the Bar or at the Bar. The new member is accompanied by two members from the same political party to the Table, from where they are sworn-in.

The jurisdictions that adopt versions of this ‘introduction ceremony’ include the United Kingdom, the Canadian House of Commons, both houses of Australia’s Federal Parliament and the New South Wales Legislative Assembly. They all refer to the House of Commons (UK) resolution of 23 February 1688 as the basis for the ceremony. It states:

That upon new members coming into the House, they be introduced to the Table between two members, making their obeisances as they go up, that they may be better known to the House.

These jurisdictions, however, only apply the ‘introduction ceremony’ to members elected at a by-election or senators who fill casual vacancies. Members and senators elected at general or periodical elections are not required to participate in this process. This has been the case since 1736. Even if such members are late or absent from the swearing in ceremony at the opening of Parliament, they are not subject to an ‘introduction ceremony’ because they are taken as having been returned at the beginning of the Parliament when no such introduction is customary.

Is the 'introduction ceremony' mandatory?

Jurisdictions that use the ‘introduction ceremony’ approach it in different ways. The Canadian House of Commons considers the process a ‘ceremonial’ one. The NSW Legislative Assembly does not consider the ceremony to be mandatory. The right of a member to sit and vote in these jurisdictions is not affected if an introduction does not take place.

Procedural texts for the House of Commons (UK) and the House of Representatives in Australia make reference to the ‘introduction ceremony’ as being ‘in line with ancient order and custom’, but it is only in the House of Commons (UK) where the ‘introduction ceremony’ appears to be a requirement before a member can ‘take their seat’. Erskine May indicates that a member returned as a result of a by-election must be ‘introduced’ to the House before they can be sworn-in and take their seat. The only exception is if the order for such a ceremony is dispensed with by the House. Previous inquiries by both Houses in the UK suggest the ‘introduction ceremony’ will be retained for the foreseeable future.
Although the impact on the legitimacy of the member or senator’s ability to take their seat is not stated with regard to the House of Representatives or the Senate, both Australian chambers have continued to use the ‘introduction ceremony’ for by-elections and casual vacancies. The reasons given for this appear to be for the purpose of identification and/or custom.

The current edition of House of Representatives Practice makes reference to the fact that ‘this custom is derived from the House of Commons’ such ‘that they may be the better known to the House’. Australian Senate Practice (6th ed) states that the reason for this ceremony is ‘that in early Commons times there was the possibility of impersonation’. There is no mention of the introduction ceremony in any subsequent editions.
Satisfying the identification issue

The New Zealand Parliament (which does not have an ‘introduction ceremony’) satisfies the identification issue by requiring that the Clerk receive, and the Speaker view, a copy of the writ for the election endorsed with the member’s name on it, prior to the member being admitted and sworn-in. This enables the Speaker to be satisfied that a ‘person appearing at the Bar to take the oath or affirmation has been duly elected as a member of Parliament’.

The perspective held by the Canadian House of Commons and the NSW Legislative Assembly also suggests that the process of ‘identification’ is satisfied as a result of the provision of the writs or certificates of election/choice and that the ‘introduction ceremony’ is not for the purpose of ‘identification’.

Summary

The requirement that a senator be admitted to the chamber and sworn-in prior to ‘taking their seat’ is cemented in statute in the majority of jurisdictions, although the requirement for an 'introduction ceremony' is not. In some jurisdictions, the majority of which are upper houses, this ceremony has not been considered, while in others it is considered optional or customary. The United Kingdom is the only jurisdiction where it appears a member is unable to take their seat or be sworn in unless they have taken part in an ‘introduction ceremony’.
This suggests that, apart from a desire to follow custom or convention, the need for an ‘introduction ceremony’ at the federal level in Australia is unnecessary if there is confidence that the election writ and/or certificate of choice is an acceptable method of identifying the new member or senator.

(Research Section)

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