We Australians may well be proud of the seamless transfer of power to the new government, of the way in which John Howard conceded defeat, the way he and Mrs Howard received Kevin Rudd and Ms Therese Rein at the Lodge and the way in which Mr. Rudd reciprocated, and in particular, his generous acknowledgement of the contributions John Howard had made to the nation.
The swearing in of the new government was delayed until Monday 3 December 2007 to allow Mr. Rudd to choose his ministry, Mr. Howard remaining as caretaker PM.
Before he swore in the new Prime Minister, the Governor-General, Major-General Jeffery, said "I must … formally ask you for your assurance that you have been elected leader of the party holding the majority of seats in the House of Representatives, that you can form a government and that you will have confidence of the House of Representatives.''
Mr Rudd replied: "Your Excellency, I am pleased to advise you that we have such a position and provide you with that assurance.''
Major-General Jeffery then said: "In that case I shall now accept the resignation of the Honourable Prime Minister John Howard which has the effect of terminating all the appointments of the former government. By the powers conferred on me by the constitution, I am therefore pleased to swear you in as Australia's 26th Prime Minister.''
Then the Governor-General indicated that he had “chosen and summoned” Mr. Rudd to be an Executive Councillor, and swore him in under section 62 of the Constitution. (The form of the Executive Councillor’s Oath is not prescribed by the Constitution, but by the Governor-General acting on the advice of the Prime Minister.) The Governor-General then swore in Mr. Rudd as Prime Minister, an office not separately designated under the Constitution.
Taking the office of a Minister normally involves swearing an Oath of Allegiance, or making a similar affirmation. The Constitution (section 64) says the Governor-General “may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. “
No oath of office is prescribed under the Constiution for a minister. This Oath should not be confused with the Oath or Affirmation required to be made by a Member of Parliament or Senator. Under section 42 of the Constitution “Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule..” This involves swearing or affirming to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law.” Until recently the Oath for ministers was similar. It was changed by the Keating government, but Mr Howard restored the Oath to Queen, but one without any reference to Her heirs and successors. Mr. Rudd and his ministers swore an oath to “well and truly serve the Commonwealth of Australia, her lands and her people in the office of (Prime) Minister …”
This was no doubt done on Mr. Rudd’s advice. But Mr Rudd could not have technically given that advice until he became an Executive Councillor. No doubt this advice was relayed earlier, perhaps through or with the approval of the caretaker. Just as the governor-General did not accept Mr. Howard’s resignation until Mr. Rudd could give him the assurances sought, so the Governor-General could not accept Mr Rudd’s advice on the Oath until he was an Executive Councillor.
This may seem pedantic, but in moments of stress, confusion and crisis, the following of these protocols can be crucial.
The exclusion of the reference to The Queen in the ministerial oaths in no way changes the Constitution, or the allegiance each and every one of The Queen’ s Ministers of State for the Commonwealth owes to The Queen, and through her, to the people. So why do this? If this were a republic, the media would be outraged if a prime minister were to introduce a monarchist oath. The politicians make a mistake to assume the people will do what they, the politicians, demand.
After the Prime Minister was sworn in, the Governor-General reminded those present of the antiquity of our democracy, and the important role of the Executive Council plays in giving him advice founded in fact and in accordance with the law. As the Constitution says, the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. The Federal Executive Council exists to advise the Governor-General in the government of the Commonwealth. Provided their advice is in order, the Ministers take political responsibility for the advice they give. It is here that the Constitution places a significant check and balance on the Ministers.
The Governor- General acting on the advice of the Prime Minister, then swore in each of the Ministers.
This was, once again, a peaceful and relatively simple transition in power by the Australian Crown in the way that only the Westminster system ensures.