The Opposition is seeking legal counsel regarding independent senator Lidia Thorpe's admission that she mispronounced 'heirs' as 'hairs' during her 2022 oath of allegiance.
"I swore allegiance to the Queen's hairs," Thorpe told ABC's Afternoon Briefing on Wednesday.
"If you listen close enough, it wasn't her 'heirs', it was her 'hairs' that I was giving my allegiance to, and now that, you know, they are no longer here, I don't know where that stands."
The issue was raised after during his visit to Canberra, yelling: "You are not my King."
Thorpe's recent comments have prompted questions regarding a potential breach of her parliamentary oath, leading to speculation about the possibility of her losing her seat in the Senate.
What is the oath of allegiance?
Oaths or affirmations of allegiance are promises required in certain situations to be made to Australia's official head of state,
After King Charles' coronation in May 2023, the oath now reads: "I, [full name], do swear that I will be faithful and bear true allegiance to His Majesty King Charles the Third, His heirs and successors according to law. So help me God."
The affirmation uses the same wording but without any religious language.
Luke Beck, professor of Constitutional Law at Monash University, said: "Parliamentarians can choose between a religious oath and a secular affirmation. But they cannot otherwise choose the words because of what the constitution says."
"The only way to change this would be by referendum," he told SBS News.
While this might be the case at the federal level, at the state and territory level there are exceptions.
For instance, in the ACT, a 1995 legislative change gave parliamentarians the option of pledging loyalty to the people of the territory.
Just over a decade later, similar changes were passed in NSW.
What is section 42 of the constitution?
Senate Opposition leader Simon Birmingham said Thorpe's revelation raises doubts about her eligibility to participate in Senate proceedings.
"Section 42 of the constitution requires that a senator make and subscribe the oath or affirmation before taking the senator's seat in the Senate. A senator must, therefore, be sworn in before sitting in the Senate or participating in its proceedings," he said in a statement.
According to the Odgers' Australian Senate Practice — a guide to the procedure and practice of the Australian Senate — senators must make and sign the oath or affirmation at the first Senate sitting they attend after being elected.
"A senator must therefore be sworn in before sitting in the Senate or participating in its proceedings, but there is nothing to prevent a senator performing other official functions before taking the oath or affirmation," it reads.
Is Thorpe's seat in danger?
In 2022, when being sworn in as a Greens senator for Victoria, Thorpe was instructed to redo her oath of allegiance after originally referring to the "colonising Queen".
On Thursday, speaking to Nine's Today program, she said that, in her accepted oath, she pledged allegiance to the late Queen's "hairs" rather than her "heirs".
"You might remember that Thorpe originally tried to make an affirmation using words she chose and that the Senate president required her to take the affirmation again properly," Beck said
"But now it turns out she did not do that — or at least so she says.
"So, as well as not following the constitutional rule, Thorpe has also failed to follow the express request of the Senate president."
The federal Opposition has said it is examining the senator's eligibility to sit in the Senate and take part in upper house proceedings under section 42 of the constitution.
"The Coalition will explore options and consider legal opinions as to the implications of Senator Thorpe's admission," Birmingham said.
Thorpe has so far rejected the Opposition's calls for her to resign from the upper house, saying: "No-one can kick me out".
Senate may require Thorpe to make official statement
Meanwhile, Foreign Minister Penny Wong has described Thorpe's recent comments as "an unusual thing".
"I have to say, we're all part of an institution that is the parliament and our democracy, and within that, we have very different views," she told ABC television.
However, Wong said Thorpe needed to "reflect on the institution of which she is a part and how she wishes to play a role in that institution".
Beck said this is an internal issue and "dealing with it is a matter entirely for the Senate".
"The Senate may well require Thorpe to make an official statement to the Senate explaining her actions and clarifying whether she changed any words in the affirmation," he said.
"One option available to the Senate is to insist that Thorpe make the affirmation properly and, if she doesn't, refuse to allow her to participate in proceedings in accordance with the constitution.
"Then Thorpe runs the risk of triggering section 20 of the constitution, which says a senator loses their seat if a senator fails to attend the Senate for two consecutive months without permission."
Opposition considering censure motion
The Opposition is considering moving a censure motion against Thorpe when the upper house sits again in November.
A censure motion is a symbolic gesture that enables politicians to express their disagreement with another member without any practical consequences.
In late 2022, after revelations that he had secretly sworn himself into five cabinet portfolios.
Graeme Orr, a professor and an expert on the Law of Politics at the University of Queensland, told SBS News that "it's a bit like being reprimanded".
"It is an expression of serious disapproval," he said.
Orr believes Thorpe's remarks are unlikely to jeopardise her parliamentary seat, as she has signed a written oath.
"It's not as heavy as in centuries past when there was a shared belief in the immortal soul that God would punish you if you made a false oath.
"She [Thorpe] has also had to subscribe, which is just a Latin word that means to write under. So, she has actually signed the allegiance.
"Crossing fingers behind your back or thinking you are pronouncing words a bit cute doesn't mean the oath is not made once uttered or subscribed. It doesn't have any formal consequences, but it would feed into any broader censure motion."
With additional reporting from the Australian Associated Press.
