Principles of Australian public law

In this relatively short book, David Clark sets out to fill what he perceives to be a gap in the presently available writing on Australian public law by achieving two distinct objectives. The first is to remedy 'one of the oddest limitations of current public law writing in Australia' by detailing the history and operation of the state and territory constitutions as well as their philosophical underpinnings. The other is to explore certain areas of federal public law, such as the laws applicable to the constitution and operation of the Commonwealth Parliament and non-judicial bodies such as the Ombudsman, which are often not dealt with in leading constitutional and administrative law texts. It is acknowledged by the author that attempting to cover such a wide range of topics is a 'high-wire act'. Fortunately, apart from one slight stumble, Clark manages to keep his balance and has produced a useful précis of a number of the institutions and concepts that are fundamental to the orderly functioning of Australian society.

The Constitutional (In)Validity of Religious Vilification Laws: Implications for Their Interpretation

A study is conducted to determine whether religious vilification laws are contrary to the implied freedom of political communication affirmed in the High Court's decision in Lange v Australian Broadcasting Corporation. He feels that to the extent that religious vilification laws are interpreted with principles, they are likely to leave sufficient place for freedom of religious discussion that happens to be relevantly political, at the same time the implied freedom of political means that the prohibitions imposed by religious vilification laws need to be interpreted narrowly and the exceptions construed widely, in order to leave room for political communication.

Judicial (in)activism in Australia's secular commonwealth

his article addresses two aspects of Australia's soft secular government. The first aspect explains how, and asks why, judges have been inactive in helping to draw the contours of secular government in Australia. The principal reason is that much of the social regulation that provokes the interest of faith-based groups is the constitutional concern of the States, and no State Constitution claims to coordinate relations between church and state. Moreover, the electorate has twice refused to pass referenda, in 1944 and 1988, for extending a constitutional demand of secular governance to the States. However, this is not so for the Commonwealth. It falls under the restrictions of section 116 of the federal Constitution, which states: The Commonwealth shall not make any law for establishing any religion ('the establishment clause') or for imposing any religious observance, or for prohibiting the free exercise of any religion ('the free exercise clause'), and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. As will be explained, while methods of legal interpretation suggest that section 116's establishment clause could place mild demands of non-discrimination on the federal Parliament, judicial inactivity in policing such demands on the Commonwealth, paradoxically, has arguably been secured by judicial activism in the High Court. A second aspect of secular government addressed is the High Court's disposal of 'the separation of church and state' as a constitutional principle in Australia. The contrast, of course, is to the United States, where for sixty years 'separation' has been given uneven recognition as a rule of constitutional law, and has undoubtedly driven the development of hard forms of secular governance in that country. The centrepiece of American secular government is the 1971 decision in Lemon v Kurtzman, where the US Supreme Court held that valid legislation had to pass three tests, ie: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion .. . finally, the statute must not foster 'an excessive government entanglement with religion. The third 'entanglement' prong of Lemon is the modern, less ambitious, form of the 'wall of separation', prohibiting too close an engagement between church and state. As this paper will demonstrate, 'entanglement's' destiny shows how unlikely it is that 'separation' can survive as a meaningful constitutional principle in the USA. And, it will also be argued that 'separation' has even poorer prospects for import to Australia.