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.

Responsibility to protect or Trojan Horse? The crisis in darfur and humanitarian intervention after Iraq

What does the world's engagement with the unfolding crisis in Darfur tell us about the impact of the Iraq war on the norm of humanitarian intervention? Is a global consensus about a "responsibility to protect" more or less likely? There are at least three potential answers to these questions. Some argue that the merging of strategic interests and humanitarian goods amplified by the intervention in Afghanistan makes it more likely that the world's most powerful states will act to prevent or halt humanitarian crises. Others insist that the widespread perception that the United States and its allies "abused" humanitarian justifications to legitimate its invasion of Iraq has set back efforts to build a global consensus about humanitarian action. A third group argues that the "responsibility to protect" inhibits the potential for abuse and, as a result, consensus is likely to strengthen post-Iraq for precisely this reason. Through a detailed study of the international engagement with Darfur, I suggest that the latter two arguments have merit but need to be adjusted. I argue that the humanitarian intervention norm has changed in two subtle ways. First, while the strength of the norm itself has not changed, the credibility of the United States and U.K. as "norm carriers" has been significantly undermined. Second, while the "responsibility to protect" has been invoked to support international activism, it has also re-legitimated anti-interventionist arguments.

Prosecution and radical discourse during the 1790s: The case of the Scottish sedition trials

This essay looks at the sedition trials in Scotland during the 1790s to examine how prosecution was exploited by radicals as a forum for political expression. As the government instituted a concerted campaign against radical activism, an increasing number of reformers faced trial on sedition and treason in this period. The courtroom emerged as an alternative venue for political discourse and this essay will explore some of the ways by which radicals challenged the dominant discursive and performative elements of trial proceedings. (c) 2005 Elsevier Ltd. All rights reserved.

Mapping civil society in former Yugoslavia

From the break up of the New Left into single issue groups at the end of the 1960s came a variety of groups representing the peace movement, environmental movement, student movement, women’s movement, and gay liberation movement. This explosion of new social movement activism has been heralded as the age of new radical politics. Many theorists and activists understand new social movements, as replacing the working class as an agent for progressive social change. Scholars and activists now alike debate the possibilities for revolutionary change in this era of multinational capitalism and new nationalisms. This paper examines some of the above claims in the context of the contemporary Serbian civil society. It explores the relationship between the civil society, activism, and narratives in Serbia. In particular, it examines the anti-Milosevic’ movement Otpor! (Resistance), and its discourse, practice and politics in public spaces, through an analysis of narratives of a set of roughly 20 interviews with Otpor! activists, aged 18-35. In the following discussion, then, I will focus on some of the particular dilemmas of contemporary Serbian popular movements - they are dilemmas to do with the growing complexity of media life in the Serbian spaces. I ground my debate on particular uses of the notion of civil society in the narratives of Otpor! activists, while I focus on the question of how do Otpor! activists relate to Leftist/radical politics and the idea of civil society.