The establishment clause: A search for meaning

Mortensen, Reid (2014) The establishment clause: A search for meaning. University of Queensland Law Journal, 33 (1). pp. 109-129. ISSN 0083-4041


The article is a critique of the current interpretation of the establishment clause of section 116 of the Australian Constitution. Following the Defence of Government Schools (DOGS) Case in 1981, the prevailing view of the establishment clause is that, in effect, it does nothing. It was for this reason that, in the Schools Chaplains Case (Williams v Commonwealth (No 1)), the litigants and the High Court of Australia did not even consider that the establishment clause was relevant - even though it plainly speaks to questions of church and state. The author argues that this understanding of the establishment clause is wrong, on the basis of interpretation of section 116 before the DOGS Case and the unorthodox methods of adjudication taken by the High Court in that case. He offers a principle of non-discrimination as a coherent approach to giving meaning to the establishment clause.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: The article was one of the contributions to the After Williams Colloquium, held at the University of Southern Queensland, 4 October 2013. Published Version deposited In accordance with publisher copyright policy.
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 31 Aug 2014 04:41
Last Modified: 04 Jul 2016 06:23
Uncontrolled Keywords: constitutional law, religion and the law, school chaplains, section 116, Australian Constitution
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940499 Justice and the Law not elsewhere classified

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