Beyond the Scientology case : towards a better definition of what constitutes a religion for legal purposes in Australia having regard to salient judicial authorities from the United States of America as well as important non-judicial authorities
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The changing relationship between the State and religion in Australia: 1788 to modern Australia. What has changed? What is the same? And what does that tell us?
The State and religion interact in a myriad of ways, one of them being their legal relationship. The purpose of this thesis is to both identify and analyse changes in this relationship in Australia over time. In identifying and analysing these changes the thesis demonstrates that changes in the legal relationship are not isolated incidents. Instead they are the result of individual changes, linked together in a continuum stretching back to the arrival of the first fleet in 1788 and forward into modern Australia. Previous work in this area has focused on either individual changes or on specific time periods. This approach misses broader patterns in the legal relationship between the State and religion because it does not link together these individual events and time periods. This thesis begins to remedy this oversight. When the legal relationship is viewed across Australia’s entire 225 years history these patterns emerge. Three cases studies demonstrate this continuum of change; State restrictions on religion, religion in education and State funding of religion. Each of the three case studies has their own unique pattern of change. First, State restrictions on religion shift from overt restrictions on entire religions towards more covert restrictions which are couched in neutral language and which target particular practices rather than the religion as a whole. Second, the pattern of religion in education is one of two journeys. In the 19 century the picture is one of a gradual reduction in the involvement of religion in education resulting in the establishment of a Sate runs system of secular education and the removal of State funding to religious schools. In the second half of the 20 century this situation is reversed with a gradual increase in religious involvement in education culminating with the creation of the National school Chaplaincy program (NSCP) in modern Australia. Third, the State funding of religion is a tug of war for control of both the quantum of funding and how that funding may be spent. While these patterns are interesting of themselves the thesis goes further. It also identifies a macro pattern that can be seen across all three case studies. This is a pattern of re-occurrence. In all three case studies there are periods of apparent stability in which there is little or no change in the legal relationship between the State and religion. However these periods of stability do not last forever. With changes in the religious composition of Australia d in the State itself the issues of how the State and religion should interact in the various case studies reemerges. With this re-emergence comes legal change in the relationship. The question of how the State and religion should interact is so fundamental that it cannot be settled once and for all. Instead it is re-negotiated as both the state and religion themselves change over time.
Translating Legal Language and Comparative Law
Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator is interested in the text itself as it was written down in a document, i.e. the translator needs to go back to the frozen moment when a legal document was constructed and finalised. The lawyer, in contrast, is very much interested not only in the text of the legal document but also in the contextual surroundings of the text. In fact, for legal interpretation, sometimes the key-elements for the interpretation come from outside of the text itself. This paper concludes that legal translation is in many cases closer to transcreation than it is to traditionally understood translation.