The Australian Constitution's Religious Tests Clause as an Anti-Discrimination Provision

Monash University Law Review, Vol. 42, No. 3, pp. 545-578, 2017

34 Pages Posted: 3 Apr 2017  

Luke Beck

Western Sydney University, School of Law

Date Written: March 29, 2017

Abstract

This article argues that the religious tests clause of s 116 of the Australian Constitution should be conceived of as an anti-discrimination provision embracing a distinction between direct and indirect religious tests equivalent to the distinction between direct and indirect discrimination in other bodies of law. In other words, a religious test exists where there is discrimination, either directly or indirectly, on the ground of religion. The article develops this interpretation using a functionalist comparative analysis with other bodies of law, including European human rights law, American equal protection jurisprudence and Australian anti-discrimination law.

Keywords: Religious Test, Indirect Discrimination, Religious Discrimination, Comparative Constitutional Law, Freedom of Religion

Suggested Citation

Beck, Luke, The Australian Constitution's Religious Tests Clause as an Anti-Discrimination Provision (March 29, 2017). Monash University Law Review, Vol. 42, No. 3, pp. 545-578, 2017. Available at SSRN: https://ssrn.com/abstract=2943105

Luke Beck (Contact Author)

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

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