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The Constitutional Prohibition on Religious Tests

30 Pages Posted: 23 Jul 2011 Last revised: 27 Aug 2013

Luke Beck

Western Sydney University, School of Law

Date Written: July 1, 2011

Abstract

Section 116 of the Australian Constitution sets out four important guarantees of religious freedom. The fourth clause of that section provides that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. During the Convention Debates, the religious tests clause was described as being the least necessary clause of s 116 on the basis that there were no remaining religious tests in the Australian colonies and that it was outlandish to think that the Commonwealth would ever impose one. This paper seeks to explore the meaning of the religious tests clause and refute those two suggestions. It seeks to show that at the time of Federation religious tests remained in the Australian colonies. It also seeks to show that the Commonwealth today, albeit unconstitutionally, requires the satisfaction of religious tests for certain public positions.

Keywords: religious test, religious tests clause, Test Act, Corporations Act, oath, affirmation, Roman Catholic Relief Act, clergy disqualification, section 116, article VI clause 3, public trust, office or public trust under the Commonwealth, office or public trust under the United States

Suggested Citation

Beck, Luke, The Constitutional Prohibition on Religious Tests (July 1, 2011). Melbourne University Law Review, Vol. 35, No. 2, pp. 323-352, 2011. Available at SSRN: https://ssrn.com/abstract=1893424

Luke Beck (Contact Author)

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

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