The Vatican ambassador appointment: unconstitutional?

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.