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.

Establishing representative no-take areas in the Great Barrier Reef : Large scale implementation of theory on marine protected areas

The Great Barrier Reef Marine Park, an area almost the size , of Japan, has a new network of no-take areas that significantly improves the protection of biodiversity. The new marine park zoning implements, in a quantitative manner, many of the theoretical design principles discussed in the literature. For example, the new network of no-take areas has at least 20% protection per bioregion, minimum levels of protection for all known habitats and special or unique features, and minimum sizes for no-take areas of at least 10 or 20 kat across at the smallest diameter Overall, more than 33% of the Great Barrier Reef Marine Park is now in no-take areas (previously 4.5%). The steps taken leading to this outcome were to clarify to the interested public why the existing level of protection wets inadequate; detail the conservation objectives of establishing new no-take areas; work with relevant and independent experts to define, and contribute to, the best scientific process to deliver on the objectives; describe the biodiversity (e.g., map bioregions); define operational principles needed to achieve the objectives; invite community input on all of The above; gather and layer the data gathered in round-table discussions; report the degree of achievement of principles for various options of no-take areas; and determine how to address negative impacts. Some of the key success factors in this case have global relevance and include focusing initial communication on the problem to be addressed; applying the precautionary principle; using independent experts; facilitating input to decision making; conducting extensive and participatory consultation; having an existing marine park that encompassed much of the ecosystem; having legislative power under federal law; developing high-level support; ensuring agency Priority and ownership; and being able to address the issue of displaced fishers.

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd

Principle issues considered in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd - whether it was necessary to show a cause of action for an interlocutory injunction to be granted - whether a right to privacy existed - whether the ABC was protected in this case by an implied constitutional freedom - majority rejected a wide interpretation on grounds upon which an interlocutory injunction could be granted - recognition of the possibility of a tort of invasion of privacy under Australian law by five of the six judges.