When Is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?

Monash University Law Review, Vol. 41, No. 1, pp. 17-39, 2015

23 Pages Posted: 3 Dec 2015

See all articles by Luke Beck

Luke Beck

Monash University - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: December 1, 2015

Abstract

The religious tests clause of s 116 of the Australian Constitution prohibits religious tests for any office or public trust ‘under the Commonwealth.’ The few cases decided by the High Court concerning the religious tests clause, including most recently Williams v Commonwealth (‘School Chaplains Case’), provide no explanation of what the expression ‘under the Commonwealth’ might mean. This paper seeks to develop an interpretation of the expression ‘under the Commonwealth’ as it is used in the religious tests clause that is meaningful, avoids undesirable and perverse outcomes, reconciles the existing cases and is consistent with s 116’s drafting history. The paper argues that an office or public trust will be ‘under the Commonwealth’ for the purposes of the religious tests clause when the office or public trust stands in a familial relationship with the federal government, understood as encompassing not just its executive arm but also its legislative and judicial arms.

Keywords: office under the Commonwealth, officer of the Commonwealth, office or public trust, religious test, religious tests clause, section 116, religion

Suggested Citation

Beck, Luke, When Is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution? (December 1, 2015). Monash University Law Review, Vol. 41, No. 1, pp. 17-39, 2015. Available at SSRN: https://ssrn.com/abstract=2697313

Luke Beck (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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