2013 - Vol 38(1) - Is Justice Invisible?

alternative law journal, vol 38(1) coverLanguage of the law

The spirit of justice

Legal activism

Responsible government, federalism and the School Chaplaincy Case

Graeme Orr and Will Isdale

God’s okay, it’s Mammon that’s troublesome

With its intermingled themes of politics, religion and constitutional law, the school chaplaincy case of Williams v Commonwealth (‘Williams’) was bound to ruffle feathers.1 In it, the High Court held unconstitutional the mechanism for funding — but not the substance — of the National School Chaplaincy Program. The decision however was all about Mammon, not God. It left the Commonwealth scrambling to reinforce the constitutionality of a whole range of directly-funded Commonwealth schemes. With further litigation mooted, the school chaplaincy saga is by no means over. The Court may yet again find that the program is not properly constituted, and needs to be channeled through state education departments. The Williams decision represents a significant development in constitutional law concerning the Commonwealth executive’s power to spend. It casts uncertainty over a myriad of nationally funded endeavours, like direct funding of universities.

(2013) 38(1) AltLJ 3


The Churches, the ACL and the National Human Rights Consultation

Hugh Crosthwaite

During the 2009 National Human Rights Consultation (‘NHRC’) the Australian Christian Lobby (‘ACL’) was influential. The ACL, purportedly representing Christian values in Australia, lobbied strongly against the creation of a human rights law. The thesis of this article is that, on the question of whether or not human rights in Australia should be protected by an Act enumerating legally enforceable human rights (‘HRA’), the ACL’s reasoning and conclusions were largely inconsistent with the views of the national representative bodies of the three largest Christian churches in Australia and, as such, lacked quality. This article will demonstrate the thesis by, first, describing the NHRC and the ACL; second, by showing that Christian denominations are themselves the best authorities on their own beliefs; third, by analysing the NHRC submissions written by the national representative bodies of the three largest Christian churches in Australia; and fourth, by showing that the NHRC submission made by the ACL was, on key issues, inconsistent with those of the national church organisations.

(2013) 38(1) AltLJ 8


Institutional Responses to Child Sexual Abuse: The Constitutionality of a Royal Commission

Luke Beck

On 12 November 2012, the Prime Minister, Julia Gillard, announced that a national Royal Commission into the apparent institutional cover-up of child sexual abuse by religious and other organisations would be held. The Royal Commission was formally established on 11 January 2013. However, national Royal Commissions cannot be held into any subject the federal government thinks deserves such an inquiry. The Australian Constitution imposes limits on the subjects that can be inquired into and how such inquiries may be conducted. This article sets out the background to the Royal Commission and examines whether it is constitutional.

(2013) 38(1) AltLJ 14


Climate change litigation and the awfulness of lawfulness

Nicole Rogers

sroth exhibit a thClimate change litigation is occurring with increasing frequency across many varied categories of law and, according to Justice Brian Preston, ‘it is likely that the avenues used to litigate climate change-related matters will continue to expand.’1 Yet the reactive precedent-bound nature of judge-made law means that such litigation is frequently unsuccessful. Borrowing a catchy phrase from authors Sam Blay and Ryszard Piotrowicz,2 I am describing this structural impediment to radical change through judicial interpretation as the awfulness of lawfulness.

(2013) 38(1) AltLJ 20


Self-determination and Queensland’s Child Protection System

Aimee McVeigh

The over-representation of Aboriginal 
and Torres Strait Islander children

Aboriginal and Torres Strait Islander (‘A&TSI’) children in Queensland are grossly over-represented in the child protection system (‘CPS’). The Newman government’s inquiry into the child protection system, announced on 29 June 2012, responds in part to this issue.1 The Commission of Inquiry has been asked to make recommendations in relation to the strategies required to reduce the over-representation of Indigenous children in the CPS.2 This article will argue that any strategies that are developed should be determined by Aboriginal and Torres Strait Islander peoples using the framework provided by international human rights law. To illustrate the failure of well-intentioned measures that do not assist Indigenous peoples because they are imposed on them rather than determined by them, the current Queensland CPS is examined. Ultimately, by drawing on other jurisdictions, this article argues that a radical transformation designed, developed and implemented by Aboriginal and Torres Strait Islander peoples in Queensland should be considered.

(2013) 38(1) AltLJ 25


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