The Vatican ambassador appointment: unconstitutional?

On 29 April 2012 it was formally announced by means of a joint media release from the Prime Minister and the Minister for Foreign Affairs that John McCarthy QC has been appointed Australia's ambassador to the Holy See.

In describing Mr McCarthy's experience the media release noted that he is a senior lawyer who has been actively involved in 'public and church affairs' and that in 2006 he 'was appointed Knight Commander of the Order of St Gregory the Great (KCSG) by the Holy See for services to the Catholic Church in Australia and to the wider Australian community.' This award is commonly known as a 'Papal Knighthood.'

In my published letter in the Sydney Morning Herald on 27 April 2012 I pointed out that s.116 of the constitution says 'no religious test shall be required as a qualification for any office or public trust under the Commonwealth.' I argued that Mr McCarthy's appointment would seem to 'contravene the intention of that clause' in so far as no one else, it would appear, was considered for the position and the appointment seemed to turn largely the fact that Mr McCarthy is a Catholic.

By mentioning Mr McCarthy's Catholic connections, the government's media release seems to confirm this. Why else would they refer to these connections if they did not consider them to be significant in their decision to appoint him?

Leaving aside the question of whether there should be an ambassador to the Vatican at all, in this article, I explore the appointment further. I conclude that it is very possible this appointment is unconstitutional and the Prime Minister and the Minister for Foreign Affairs have made a serious legal mistake.

There is no doubt that an ambassador is an 'office' under the Commonwealth.The Australian Year Book of International Law of 1989 cites Senator Robert Ray: 'On 11 December Senator Macklin asked me a question about the Australian Embassy to the Holy See, and the possible need for a resident ambassador. The Government maintains a resident charge d'affaires at the Embassy in the Holy See. He is an experienced officer, and his work is backed up by regular visits to the Vatican by our Ambassador, resident in Dublin.' (Emphasis added).

So, what is a 'religious test'?

This question arose twice last year. Firstly, in an article 'The Constitutional Prohibition of Religious Tests' by Luke Beck published in the Melbourne University Law Review, Vol. 35 2011.

The question of what is a religious test also arose last year in Williams v The Commonwealth which was heard in the High Court 9-11 August. This case concerned, in part, whether there was a religious test for chaplains appointed to public schools by religious organisations such as Scripture Union Queensland and Access Ministries in Victoria. Chaplains are funded by the Commonwealth. The Court is yet to arrive at a decision.

Luke Beck writes that in an unreported 1950 High Court case,Crittenden v Anderson, the question of a religious test, arose. Beck writes that Crittenden 'sought to challenge the respondent's [Anderson's] election to the House of Representatives on the ground that [Anderson] had acknowledged allegiance to a foreign power contrary to s.44(i) of the Constitution. The respondent was a Catholic and the foreign power in question was the 'Papal State''.

The judge hearing the case dismissed it on the grounds that what Crittenden was contending was a religious test prohibited by s.116 i.e. a person's religion could not be held against him to deny him a Commonwealth position.

On that reasoning, one might conclude that it would be wrong to argue that John McCarthy's appointment to the Vatican is unconstitutional because to reject him on the grounds of his Catholicism is applying a similar religious test as in Crittenden v Anderson. It could be argued that the fact that Mr McCarthy is a committed Catholic is irrelevant.

However, in another letter on this subject to the Herald on April 27 Tony Brownlow pointed out 'You reported that John McCarthy was well qualified to be Australia's envoy to the Vatican because he is a committed Catholic and past president of the St Thomas More Society. That is akin to saying that someone is suited to be ambassador to China because he or she is a committed communist and past president of the local Communist Party branch.'

Brownlow argued 'surely the position should go to someone from the Department of Foreign Affairs'. I believe he was arguing that someone with a proven record of representing Australia's interests, based, not on their religious affiliation, but on their training and experience, would be more suitable.

There is another consideration. The website Concordat Watch points out that in 1917 'the Foreign Office issued a memorandum saying that Britain's representative to the Vatican 'should not be filled with unreasoning awe of the Pope' and the post was filled by a non-Catholic.' In 2005 this practice was reversed by Prime Minister Tony Blair, a convert to Catholicism. He could do this without reflection as there is no constitutional provision, like s.116, in Britain.

Second, to go to that point, in Williams v The Commonwealth, the plaintiff's barrister, Bret Walker SC, on 11 August 2011 provided an empirical definition of 'religious test':

In our submission, a religious test is a concept which will include the singling out of one for favour, the singling out of one for disfavour, the singling out of more than one for favour, the singling out of more than one for disfavour and, in our submission, a way in which either of those possibilities may come about will include, classically, the qualification or disqualification of certain persons for holding an office under the Commonwealth.

So, it could be argued, while it may be unconstitutional to use a person's religion as a grounds todeny them a position under the Commonwealth, it could be equally unconstitutional to use a person's religion as a ground to appoint them to a position.

Following this reasoning McCarthy's appointment is contentious as it appears a case of favouring someone becauseof their religion.

It would be an interesting exercise to take this matter to the High Court for their consideration. It would be fascinating to hear the Commonwealth's argument that the appointment of John McCarthy as ambassador to the Vatican was not a case of, as Bret Walker SC expressed it, 'the singling out of one for favour'.

Finally, there is a very important point of principle here: the rule of law. The Prime Minister and the Minister of Foreign Affairs should be seen to be upholding it. Given there is credible doubt about the constitutionality of Mr McCarthy's appointment it could be the wrong decision to proceed as if that doubt does not exist.