Freedom of Religion and Belief in India and Australia: An Introductory Comparative Assessment of Two Federal Constitutional Democracies

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, that protection is far from comprehensive. Instead, unlike its Indian counterpart, the Australian federal democracy depends upon a piecemeal collection of Constitutional, legislative, and common law provisions which, when taken together, seem to achieve plenary protection for free exercise. Still, while India protects free exercise within a comprehensive constitutional framework, and while Australia does so in a disjointed and fragmentary way, both arrive at the same place: a constitutionalism characterized by secularism/separation of church and state combined with a corresponding comprehensive protection for free exercise

Introduction: seeing further over the horizon - A world of limitless possibilities

Dale Stephens and Paul Babi

“There’s a Moment When All Old Things Become New Again”: The Canadian Oil and Gas Royalty – A Modern Rent Charge

While American law recognizes the oil and gas royalty as a real property interest, Canadian law, although based on the American experience, is not as clear. This Article argues that the oil and gas royalty, an integral part of the investment necessary to the operation of the Canadian oil and gas industry, represents a modern example of the rent charge, a proprietary interest in land with origins in medieval common law. The Article makes this claim for two reasons: one is pragmatic, the other theoretical-pedagogical. First, pragmatically, as the value of oil and gas rises precipitously in response to the global supply crunch created by the Russian invasion of Ukraine, exploration for and production of Canadian reserves will expand. Therefore, the owners of those oil and gas reserves will seek to ensure their share in the resulting revenue; recognition as a rent charge provides that security. And second, theoretically- pedagogically, while the oil and gas royalty may be representative of a dying industry in the midst of a world transitioning from fossil-fuel dependency into a clean renewable energy future, the analysis that demonstrates it to be a proprietary interest in land is valuable for what it reveals about real property: its ability to adapt to changing circumstances. Outlining this analytical method provides important guidance as to the flexibility and organic development of the law of real property in accommodating future novel legal relationships. In demonstrating this analysis, the Article provides a framework within which to consider the legal characterization of the oil and gas royalty interest in both Canadian and American law. But more importantly, the Article is prospective, providing a methodology capable of use in considering the proprietary status of new legal relationships which may emerge as part of a clean energy future

Breaking the silence: Law, theology and religion in Australia

Review essay. ['Theology and Law: Partners or Protagonists?' edited by Parker, Christine and Preece, Gordon (2005).]The collection of essays found in Theology and Law: Partners or Protagonists? makes a valuable contribution to the exploration of the relationship between law and religion. Still, there is a flaw with the volume: it fails to define and distinguish ‘theology’ and ‘religion’. Drawing a distinction between the two terms has methodological implications. This review essay offers a means of distinguishing the two terms, from which two methodological approaches flow: ‘law and religion’ and ‘theology and law’. A volume devoted solely to the latter would make a significant and unique contribution to existing Australian legal literature, while one devoted to the former would merely add to a relatively well-established body of research. While this review essay argues that the volume is directed more to law and religion than theology and law, it also concludes that the volume is significant and important because it opens a sustained and focused dialogue between religion (which includes theology) and law.Paul Babi

The Thing and Judicial Methodology in Resolving Novel Property Claims: It Matters When It Matters

This article explores, in a very preliminary way, two issues that emerge when Bruce Ziff’sidentification of two judicial methodologies in resolving novel property claims is coupledwith the two currently dominant theories of property. First, that there is an intuitivecorrespondence, or correlation, between judicial approach and theory of property producestwo correlatives — the attributes-property as things correlative, and the functional-propertyas relations correlative. And, second, in neither of the two correlatives is the thing orsubject-matter of property merely a dispensable backdrop to the inquiry; rather, for both,the thing remains absolutely essential to understanding what property is and concluding thatit exists in any given case. But less certainty exists as to when a court must take account ofthe thing in the context of a discrete novel property claim. Perhaps the most that can beclaimed is that it matters when it matters.P.T. Babi

The Form and Formation of Constitutionalism in India

Published: 7 April 2022To allow for the effective functioning of a state, measures are necessary to limit the power of government, securing to the people certain fundamental human rights. These limitations are frequently referred to as ‘constitutionalism’. This essay explores the nature of constitutionalism found in India, and specifically as it has evolved through judicial interpretation—the process whereby judicial decisions have given meaning and content to the written constitution. In this way, the judiciary has balanced the power of government with the rights of the people. Constitutionalism is indispensable to effective governance, balancing power with right.Paul T. Babie and Arvind P. Bhan

No Amendment? No Problem: Judges, “Informal Amendment,” and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill

No Amendment? No Problem: Judges, Informal Amendment, and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill

Protecting Religious Speech as Expressive Conduct in the Constitutions of Australia, United States, and India

This article explores the protection of religious expressive conduct in the constitutions of Australia, the United States, and India. It contains four parts. The first examines the protection for religious free exercise or freedom of religion or belief. The second examines the protection of free speech which, when combined with the guarantee for free exercise, extends to cover religious expressive conduct. The third part considers the standards used in each jurisdiction for analyzing claimed violations of religious expressive conduct, so as to allow for a balance between the individual freedom and the community interest in being protected against individual excesses in the name of free exercise. The final part concludes with some brief comparative reflections on the approach taken by these three jurisdictions to the constitutional protection of religious expressive conduct.Arvind P. Bhanu, Paul T. Babie, And Gian-Luca Stirlin

Investigation of the relationship between CPTED principles and people's feeling of safety: a pilot study in the City of Adelaide

While CPTED concepts and principles have been incorporated into urban design policy from the federal level to that of local council, there is little research in Australia, or elsewhere, that evaluates and critiques CPTED principles in relation to urban design and people’s feelings of safety and comfort. This paper presents a pilot research project that explores the link between CPTED principles and people’s feelings of safety and comfort in an urban precinct of Adelaide, South Australia. The research combines a micro-scale analysis of the built environment using GIS mapping and a series of interviews and this paper will focus on the built environment survey methods and results. The research found that while many of the CPTED principles were identified in the urban fabric of this precinct, what makes people feel safe was not necessarily and foremost directly related to the built environment design. The main factors that contributed positively to people’s feelings about the area are the presence of activity, familiarity with the surroundings and maintenance of the area, building, or space. It is expected that the approach and methods implemented to conduct this pilot research can be adopted in a wider scale research in other parts of the City and elsewhere.Veronica Soebarto, Helen Bennetts, Susan Oakley, Paul Babi