This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define their status and society by reference to their relationship with the land, this article considers the ultimately unsuccessful attempt to protect their spiritual beliefs as an incident of native title law. It reviews a line of intellectual property cases which have been a more fruitful source of protection, as well as the possibilities of the protection of the spiritual beliefs of indigenous peoples under racial vilification laws. With changes to the Australian Constitution to recognize the particular rights of Aboriginal and Torres Strait Islander Peoples currently under consideration, the article concludes with the speculation that specific Federal legislation could achieve the protection of their spiritual beliefs.
{"title":"Protecting the Spiritual Beliefs of Indigenous Peoples: Australian Case Studies","authors":"M. Blakeney","doi":"10.2139/SSRN.2269630","DOIUrl":"https://doi.org/10.2139/SSRN.2269630","url":null,"abstract":"This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define their status and society by reference to their relationship with the land, this article considers the ultimately unsuccessful attempt to protect their spiritual beliefs as an incident of native title law. It reviews a line of intellectual property cases which have been a more fruitful source of protection, as well as the possibilities of the protection of the spiritual beliefs of indigenous peoples under racial vilification laws. With changes to the Australian Constitution to recognize the particular rights of Aboriginal and Torres Strait Islander Peoples currently under consideration, the article concludes with the speculation that specific Federal legislation could achieve the protection of their spiritual beliefs.","PeriodicalId":41835,"journal":{"name":"Washington International Law Journal","volume":"24 1","pages":"391-427"},"PeriodicalIF":0.5,"publicationDate":"2013-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73378603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper extends the empirical analysis of the determinants of judicial behavior by considering the Taiwanese case. Taiwan is a particularly interesting case because the establishment and development of constitutional review corresponds to a political transition from an authoritarian regime dominated by one party to an emerging democracy. We test the attitudinal hypothesis by making use of a new dataset of ninety-seven decisions issued by the Taiwanese constitutional court in the period 1988-2008. The attitudinal hypothesis is that the Taiwanese constitutional judges respond to party interests, either because their preferences coincide with the appointer or because they want to exhibit loyalty to the appointer. Our econometric analysis does not provide strong evidence for the attitudinal hypothesis. We provide an explanation. Faced with a transition from a one-party political regime to a democracy, the Taiwanese Grand Justices needed to assert their independence from the other branches of government and gain credibility, thus dissenting more often, periodically and individually voting against the interests of the dominant party.
{"title":"Explaining Constitutional Review in New Democracies: The Case of Taiwan","authors":"Nuno Garoupa, V. Grembi, S. Lin","doi":"10.2139/SSRN.1433805","DOIUrl":"https://doi.org/10.2139/SSRN.1433805","url":null,"abstract":"This paper extends the empirical analysis of the determinants of judicial behavior by considering the Taiwanese case. Taiwan is a particularly interesting case because the establishment and development of constitutional review corresponds to a political transition from an authoritarian regime dominated by one party to an emerging democracy. We test the attitudinal hypothesis by making use of a new dataset of ninety-seven decisions issued by the Taiwanese constitutional court in the period 1988-2008. The attitudinal hypothesis is that the Taiwanese constitutional judges respond to party interests, either because their preferences coincide with the appointer or because they want to exhibit loyalty to the appointer. Our econometric analysis does not provide strong evidence for the attitudinal hypothesis. We provide an explanation. Faced with a transition from a one-party political regime to a democracy, the Taiwanese Grand Justices needed to assert their independence from the other branches of government and gain credibility, thus dissenting more often, periodically and individually voting against the interests of the dominant party.","PeriodicalId":41835,"journal":{"name":"Washington International Law Journal","volume":"34 1","pages":"1-40"},"PeriodicalIF":0.5,"publicationDate":"2010-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84728808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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