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.

Having your day in court:judicial opportunity and tactical choice in Anti-GMO campaigns in France and the United Kingdom

Investigating the recent direct action campaigns against genetically modified crops in France and the United Kingdom, the authors set out to understand how contrasting judicial systems and cultures affect the way that activists choose to commit ostensibly illegal actions and how they negotiate the trade-offs between effectiveness and public accountability. The authors find evidence that prosecution outcomes across different judicial systems are consistent and relatively predictable and consequently argue that the concept of a “judicial opportunity structure” is useful for developing scholars’ understanding of social movement trajectories. The authors also find that these differential judicial opportunities cannot adequately account for the tactical choices made by activists with respect to the staging of covert or overt direct action; rather, explanations of tactical choice are better accounted for by movement ideas, cultures, and traditions.

Audience design in the police interview:the interactional and judicial consequences of audience orientation

Police-suspect interviews in England & Wales are a multi-audience, multi-purpose, transcontextual mode of discourse. They are conducted as part of the initial investigation into a crime, but are subsequently recontextualised through the judicial process, ultimately being presented in court as evidence against the interviewee. The communicative challenges posed by multiple future audiences are investigated by applying Bell’s (1984) audience design model to the police interview, and the resulting "poor fit" demonstrates why this context is discursively counter-intuitive to participants. Further, data analysis indicates that interviewer and interviewee, although ostensibly addressing each other, may orientate to different audiences, with potentially serious consequences. As well as providing new insight into police-suspect interview interaction, this article seeks to extend understanding of the influence of audience on interaction at the discourse level, and to contribute to the development of theoretical models for contexts with multiple or asynchronous audiences.

An analysis of police interview discourse and its role(s) in the judicial process

This study analyses the current role of police-suspect interview discourse in the England & Wales criminal justice system, with a focus on its use as evidence. A central premise is that the interview should be viewed not as an isolated and self-contained discursive event, but as one link in a chain of events which together constitute the criminal justice process. It examines: (1) the format changes undergone by interview data after the interview has taken place, and (2) how the other links in the chain – both before and after the interview – affect the interview-room interaction itself. It thus examines the police interview as a multi-format, multi-purpose and multi-audience mode of discourse. An interdisciplinary and multi-method discourse-analytic approach is taken, combining elements of conversation analysis, pragmatics, sociolinguistics and critical discourse analysis. Data from a new corpus of recent police-suspect interviews, collected for this study, are used to illustrate previously unaddressed problems with the current process, mainly in the form of two detailed case studies. Additional data are taken from the case of Dr. Harold Shipman. The analysis reveals several causes for concern, both in aspects of the interaction in the interview room, and in the subsequent treatment of interview material as evidence, especially in the light of s.34 of the Criminal Justice and Public Order Act 1994. The implications of the findings for criminal justice are considered, along with some practical recommendations for improvements. Overall, this study demonstrates the need for increased awareness within the criminal justice system of the many linguistic factors affecting interview evidence.

Cuba's Judicial System and Transition: Lecture by Antonio G. Rodiles and Amelia Maria Rodríguez Cala

This flyer promotes the event "Cuba's Judicial System and Transition: Lecture by Antonio G. Rodiles and Amelia Maria Rodríguez Cala" cosponsored by the FlU College of Law and the Vaclav Hável Initiative for Human Rights and Diplomacy.

Ateliê biográfico de formação profissional: prática socioeducativa em Escola Judicial

In recent decades, debates have intensified about (auto) biographical narratives as devices of socio-educational practices, aligned to the educational setting of the XXI century which have stimulated a new educational perspective woven with epistemological and methodological training throughout life. Towards that scenario, the continued training in Judicial School has occupied important space for constitutional effectiveness and, on the other hand, has grown the demands of expanding knowledge and enhancing training practices, in turn, judicial practices. The aim is to analyze the reflective Group through "Professional Training biographical Workshop" with Bailiffs such as socio-educational practices in socio Judicial School, in the city of Natal /RN. It has highlighted the questions that guided this study: 1. What paths of experiences and knowledge shared by the Law Officials, Federal Appraisers in "Professional Training biographical Workshop" as reflective Group? 2. How is organized the reflective Group as practice in socio-professional training setting? 3. What contributions narratives of themselves bring to the bailiff in reflective Group on Judicial School? The theoretical assumptions are supported in the lifelong training in methodological and epistemological dimension of (auto) biographical knowledge (JOSSO, 2008, 2010, 2012; PINEAU, 2005, 2006; DOMINICÉ, 2010; DELORY-MOMBERGER, 2006, 2008; FREIRE, 1987, 1996, 2001; PASSEGGI, 2008; 2010; 2011; 2012). In 2009, 09 (nine) civil servants in post of Federal Appraiser Justice Official, law graduates participated in this research through eight (08) "Biographical Workshops of Professional Training", consisting of biographical practices and scenarios, enabling oral and written narratives about a memory that has meaning, relationship and tessituras between files, facts and feelings that reveal the perception of self and other, as well as mobilize and weave the training process. The experiences of speaking, writing and reading were constituted of spaces that facilitating the reconstruction of the trajectory of training and career awareness-making, helping to re-signify labor relations and lead to their own professional design. From this study, the reflective properties of groups have emerged, consisting of Reflexivity, Experience, Historicity, Reversibility, dialog and formability processes, with paths to social and educational practices in which professionals identify the meaning and significance of self and of the profession that are exercising. The expectation is to continue with the spirit of research to emerge from the participants responses to training practices in Judicial School, aligned with the new knowledge of understanding the human being, not only an object of his work, but also a social subject, co-participant in the process of re-signifying life and work in a permanent way.

A conduta judicial ética teórica e aplicada contida em princípios e regras deontológicos abrangidos pelo sistema constitucional

Research on Legal Deontology dedicated to theoretical and applied ethics on judicial conduct grounded in legal principles and rules set out in the Constitution of the Federative Republic of Brazil and the Organic Law of the National Judiciary, also contemplating propositional instruments covered by the constitutional system, which conveys behavioural paradigms inserted in the Bangalore Principles of Judicial Conduct, in the Universal Statute of the Judge and in the Latin-American Code of Judicial Ethics, as well as highlight the influence of those instruments in the Brazilian Ethical Code of the Magistrates and in the official complementary training of judges in charge of Judiciary Schools. The study provides the theoretical influxes of moral norm, passing by behavioural social norm to consolidate the ideal standards of judicial conduct into legal standards and related instruments. The Legal Deontology directed to the ethical judicial conduct is confronted with the stereotype that society expressed in relation to the judge's person, who is the political agent that interprets the law for making decisions which directly influences the realization of access to justice, that is constitutionally guaranteed to all. Core values inserted in the constitutional system intended to discipline the judicial conduct are presented and analysed under a critical view, since they are enclosed in prescriptive language that conveys behavioural aspects open to interpretation and which compliance is revealed as a proposition focused on promoting a better solution of interest’s conflicts under the responsibility of those who constitute the distinctive corporation of the Judiciary. The theme’s contextualization also focuses on applied ethics, based on the approach of normative and propositional instruments of deontological content, still focusing on the study of real cases examined by the Brazilian National Council of Justice, as part of its correctional goals.

Problemas en torno al consentimiento sexual en el tratamiento judicial de los delitos sexuales, Bs. As. 1866-1921

En los últimos años, los delitos sexuales se han convertido en objeto de preocupación para la sociedad; esto se vio reforzado por las nuevas formas de pensar y vivir las relaciones humanas inter e intra-género/s y especialmente las elecciones sexuales. En este trabajo la autora propone volver a poner en debate algunas cuestiones que hacen al problema de la definición judicial y a la comprensión del consentimiento en el contexto específico delitos sexuales (delitos contra la honestidad) en el ámbito de la provincia de Buenos Aires, entre 1866 y 1921, habida cuenta de la importancia que este concepto tiene en los expedientes así como en el tratamiento doctrinario de la violencia sexual. Se propone poner en tensión las ideas sociales y culturales que aparecen reflejadas en las fuentes citadas respecto de qué es, cómo se otorga y cuándo puede hablarse de un efectivo consentimiento. En particular ella hará eje en la problemática en relación a la situación de los menores de edad varones y mujeres en tanto víctimas posibles y reales de estos ilícitos. Planteará la discusión en torno al límite jurídico de 12 años como "edad del consentimiento" y las construcciones jurídicas en relación a la capacidad/incapacidad de los menores para asentir sexualmente