Religion as Politics not Law: the Religion Clauses in the Australian Constitution1

Abstract

The Australian Constitution provides for the protection of religious freedom and prohibits establishment in very similar terms to the United States Constitution. Yet while Australian judges have often stated the importance of religious freedom in a democratic state and have defined religion in a broad, culturally sensitive way, they have taken a narrow approach to the scope of religious freedom and to the meaning of establishment. The end result is that the courts have played very little role in determining the boundaries of acceptable government or legislative behaviour in the regulation of religion. Instead, the key decisions have been left to the political branches of government, which have been given a broad scope of power to engage in all but the most direct and egregious breaches of religious freedom. This article begins with an overview of the history of the drafting of the religion clauses of the Australian Constitution and then gives a detailed analysis of the way in which those clauses have been interpreted by the High Court. It concludes that the approach of the High Court in interpreting the religion clauses narrowly, as a constraint on government power rather than a right, has limited the capacity of the Court to participate meaningfully in the key legal questions around religious freedom. While this approach might have been workable in the past, the growing complexity of regulating religion means that the courts need to be able to develop more sophisticated legal approaches to questions of religious freedom.     

A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights1

Abstract

The article examines the strategies the European Court of Human Rights (ECHR) employs to apply the concept of neutrality in relation to Article 9 (freedom of religion or belief) of the European Convention on Human Rights. Having explored the theoretical background of the concept of neutrality and its specific application in the case law, the authors argue that neutrality is often used to display a bias towards a particular world view or societal paradigm, rather than representing unbiased perspectives of legal reasoning. The article studies the specific justifications for such biased approaches in the context of relevant ECHR cases and argues that in this way neutrality has discredited itself as a credible legal tool and as a form of legal argumentation. Furthermore the difficulty of handling the complexities of Article 9 claims by applying the principle of neutrality has led to a stronger trend of avoiding Article 9 by dealing with Article 9 claims through other Convention articles. Finally the authors discuss possible new approaches to legal reasoning which could take on board the dynamics of freedom of religion or belief through independent reasoning beyond the myth of neutrality.     

40,000 memories in young teenagers: Psychometric properties of the Autobiographical Memory Test in a UK cohort study

Although the Autobiographical Memory Test (AMT) is widely used its psychometric properties have rarely been investigated. This paper utilises data gathered from a 10-item written version of the AMT, completed by 5792 adolescents participating in the Avon Longitudinal Study of Parents and Children, to examine the psychometric properties of the measure. The results show that the scale derived from responses to the AMT operates well over a wide range of scores, consistent with the aim of deriving a continuous measure of over-general memory. There was strong evidence of group differences in terms of gender, low negative mood, and IQ, and these were in agreement when comparing an item response theory (IRT) approach with that based on a sum score. One advantage of the IRT model is the ability to assess and consequently allow for differential item functioning. This additional analysis showed evidence of response bias for both gender and mood, resulting in attenuation in the mean differences in AMT across these groups. Implications of the findings for the use of the AMT measure in different samples are discussed.     

Dual processes,evolution and rationality

In three experiments we tested hypotheses derived from the goal specificity literature using a real-world physics task. In the balance-scale paradigm participants predict the state of the apparatus based on a configuration of weights at various distances from the fulcrum. Non-specific goals (NSG) have been shown to encourage hypothesis testing, which facilitates rule discovery, whereas specific goals (SG) do not. We showed that this goal specificity effect depends on task difficulty. The NSG strategy led to rule induction among some participants. Among non-discoverers, SG participants were faster and more accurate on difficult problems than NSG participants. The use of misleading exemplars (scale configurations that obscured the rule governing outcomes) led to fixation on inappropriate hypotheses for NSG but not SG participants. When more diagnostic learning exemplars were used, NSG non-discoverers still performed worse than SG participants on difficult problems. SG participants also outperformed NSG participants on a post-test of difficult problems. These findings qualify the generality of goal specificity effects.     

Matching bias and set sizes: A discussion of Yama (2001)

Yama (2001) has presented an ingenious series of experiments in which he attempts to separate two accounts in the literature of the cause of “matching bias” in conditional reasoning. One account is that the bias arises from the way in which people process negations and the other is that it is due to the larger set sizes associated with negative propositions, rather than negation per se. Yama's experiments show influences of both negation and set size, from which he concludes that both factors contribute to the matching bias that is normally observed. In this note, it is argued that this conclusion is at odds with other findings in the literature, particularly those investigating implicit negation as the cause of the bias. Introducing explicit negations has been shown to remove matching bias completely and not partially, as Yama's account must predict. A possible reconciliation is proposed in terms of subtle contextual differences introduced by Yama's experiments.     

Supposition and representation in human reasoning

We report the results of three experiments designed to assess the role of suppositions in human reasoning. Theories of reasoning based on formal rules propose that the ability to make suppositions is central to deductive reasoning. Our first experiment compared two types of problem that could be solved by a suppositional strategy. Our results showed no difference in difficulty between problems requiring affirmative or negative suppositions and very low logical solution rates throughout. Further analysis of the error data showed a pattern of responses, which suggested that participants reason from a superficial representation of the premises in these arguments and this drives their choice of conclusion. Our second experiment employed a different set of suppositional problems but with extremely similar proofs in terms of the rules applied and number of inferential steps required. As predicted by our interpretation of reasoning strategies employed in Experiment 1, logical performance was very much higher on these problems. Our third experiment showed that problems that could be solved by constructing an initial representation of the premises were easier than problems in which this representation was not sufficient. This effect was independent of the suppositional structure of the problems. We discuss the implications of this research for theories of reasoning based on mental models and inference rules.     

Background beliefs and evidence interpretation

In this paper we argue that it is often adaptive to use one's background beliefs when interpreting information that, from a normative point of view, is incomplete. In both of the experiments reported here participants were presented with an item possessing two features and were asked to judge, in the light of some evidence concerning the features, to which of two categories it was more likely that the item belonged. It was found that when participants received evidence relevant to just one of these hypothesised categories (i.e. evidence that did not form a Bayesian likelihood ratio) they used their background beliefs to interpret this information. In Experiment 2, on the other hand, participants behaved in a broadly Bayesian manner when the evidence they received constituted a completed likelihood ratio. We discuss the circumstances under which participants, when making their judgements, consider the alternative hypothesis. We conclude with a discussion of the implications of our results for an understanding of hypothesis testing, belief revision, and categorisation.     

"Pulling Teeth and Torture" : Musical Memory and Problem Solving

A concert pianist the second author videotaped herself learning J.S. Bach's Italian Concerto Presto, and commented on the problems she encountered as she practised. Approximately two years later the pianist wrote out the first page of the score from memory. The pianist's verbal reports indicated that in the early sessions she identified and memorised the formal structure of the piece, and in the later sessions she practised using this organisation to retrieve the memory cues that controlled her playing. The practice and recall data supported this account. Both were organised by the formal structure of the music. Practice segments were more likely to start and stop at boundaries of the formal structure than at other locations, and recall was higher for the beginnings of sections than for later portions. Like other forms of expert memory, pianistic memory appears to be based on use of a highly practised retrieval scheme which permits rapid retrieval of information from long-term memory.     

Situational variables related to aggression in institutional settings

For decades, aggressive behavior among psychiatric inpatients has been identified as disruptive to the therapeutic environment and a workplace hazard. Most previous research has focused on individual patient risk factors with less attention paid to the situational, environmental, or therapeutic milieu factors that could influence violence rates. This review outlines the prominent areas discussed in situational factor research and presents recent theoretical models that integrate these factors. Based on the identified shortcomings in the available literature, suggestions for future research directions are offered.