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
Date Written: March 29, 2017
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
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