The Constitutional Prohibition on Religious Tests

By Beck, Luke | Melbourne University Law Review, August 2011 | Go to article overview

The Constitutional Prohibition on Religious Tests


Beck, Luke, Melbourne University Law Review


[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 ors 116 on the basis, first, that there were no remaining religious tests in the Australian colonies and, second, that it was outlandish to think that the Commonwealth would ever impose one. This article 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.]

CONTENTS

  I Introduction
 II History
    A English History
    B American History
    C Australian History
III What Is a Religious Test?
 IV The Nature of the Prohibition
  V What Is an Office and What Is a Public Trust?
 VI When Is an Office or Public Trust under the Commonwealth?
VII Conclusion

I INTRODUCTION

On 2 March 1898, Edmund Barton told delegates to the Constitutional Convention at Melbourne that in the Australian colonies 'we have wiped out every religious test' (1) and that 'it is not possible' that a religious test for a position of public trust would ever be required by the Commonwealth for which the Convention was drafting a constitution. (2) On both counts, the man who would become Australia's first Prime Minister and one of the first judges of the High Court of Australia was wrong. Not every religious test had been wiped out and the Commonwealth would in fact go on to require religious tests for public offices and positions of public trust. It still does.

Barton made his bold claims in the context of arguing against the need for the provision that became s 116 of the Constitution. The final clause of that provision, which may be conveniently called the religious tests clause, provides: 'and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.' The provision echoes a similarly worded clause in the United States Constitution (3) and was directed at a mischief that had a long and disreputable history.

This article seeks to demonstrate why it is that Barton was wrong and, in the process, explore the meaning of the religious tests clause. It begins by noting the history of religious tests and considers how it is that constitutional prohibitions against them came about in the United States and Australia. It then provides a close analysis of each part of the religious tests clause in the Australian Constitution using two contemporary examples: the appointment of military chaplains and the requirement that the Speaker of the House of Representatives and the President of the Senate participate in religious practices. The analysis will show that the constitutional prohibition has been violated.

II HISTORY

In the first judicial consideration of the religious tests clause, Fullagar J said that the provision 'was, of course, not enacted by men ignorant or unmindful of history'. (4) Understanding that history is essential to understanding the constitutional prohibition. The relevant history spans three continents and many centuries. As Fullagar J noted, that history includes the history of religious tests directed primarily against Catholics in England. (5) But, it also includes the American history of religious tests and the insertion into that country's Constitution of a provision almost identical to the prohibition on religious tests in s 116. There is also an Australian history of religious tests for positions of public trust and that history clearly shows that Barton's claim that all religious tests in Australia had been 'wiped out' by the time of Federation was wrong. …

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