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

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.The paper begins in part II by providing some general background to s 116. Part III outlines the approach adopted by this paper for determining the meaning of the expression ‘under the Commonwealth’. The paper then turns in part IV to identifying two potential meanings of the word ‘under’ based on the case law considering the religious tests clause and on a textualist analysis of the use of that word in various parts of the Constitution. In part V, the paper identifies various senses in which the religious tests clause might be using the term ‘the Commonwealth’ based on a textualist analysis of the use of that expression in various parts of the Constitution. Part VI considers the various possible interpretations of the expression ‘under the Commonwealth’ based on the possible permutations of the meanings of ‘under’ and ‘the Commonwealth’. It assesses whether each interpretation is meaningful, avoids undesirable and perverse outcomes, reconciles the existing cases and is consistent with s 116’s drafting history. Using these criteria, the paper comes to an interpretation by a process of elimination. Part VII of the paper offers some concluding remarks.