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

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.