The Federation Press

Blackshield and Williams Australian Constitutional Law and Theory

Commentary and Materials


The fifth edition of Australian Constitutional Law and Theory: Commentary and Materials has been thoroughly rewritten. Each chapter has thoroughly reviewed by both authors, with fresh choices made for extracts to bring the book up to date for new materials and scholarship. The commentary has also been rewritten to provide clearer explanation of concepts and case outcomes. Major new developments have been included by cutting back existing material to focus in more tightly on the key constitutional issues.

Major cases added since the last edition include: Attorney-General (Cth) v Alinta Ltd; Bennett v Commonwealth; Betfair Pty Ltd v Western Australia; Clarke v Commissioner of Taxation; Forge v Australian Securities and Investments Commission; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police; K-Generation Pty Ltd v Liquor Licensing Court; Lane v Morrison; Pape v Commissioner of Taxation; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2); Roach v Electoral Commissioner; Sweedman v Transport Accident Commission; Telstra Corporation Ltd v Commonwealth; Thomas v Mowbray; White v Director of Military Prosecutions; the Work Choices Case; Wurridjal v Commonwealth and XYZ v Commonwealth.

As this list indicates, the fifth edition includes the groundbreaking 2009 decision in Pape, as well as the other key decisions of this year such as Clarke, K-Generation, Lane and Wurridjal.

Significant changes in this new edition include:

  • A rewritten first chapter to provide a more accessible introduction to the subject
  • A rewritten and restructured chapter on characterisation to make this difficult area more accessible and to produce a more logical flow of concepts and material
  • The separation out of the material on the trade and commerce power into a new chapter on the economic powers
  • Major changes in the chapter on Indigenous peoples, such as to reflect the United Nations Declaration on the Rights of Indigenous Peoples and the Apology to Australia’s Indigenous Peoples
  • Changes to reflect legislative amendment in areas like citizenship law
  • Rewritten material on federalism, especially in regard to fiscal federalism due to the Intergovernmental Agreement on Federal Financial Relations in force from 1 January 2009
  • New material on the defence power as it relates to terrorism and national security
  • New material on the executive, such as in regard to the Crown and the nationhood power
  • The division of the material on the separation of judicial power into three chapters (titled: Separation of Judicial Power; Judicial and Non-Judicial Detention and The Judicial Process)
  • Revision of the material on human rights, such as to reflect the national charter of rights debate and the enactment of the Victorian Charter of Human Rights and Responsibilities


The happy collaboration of these two great legal scholars has made Australian Constitutional Law and Theory in the words of one reviewer, “the most comprehensive treatment of Australian Constitutional law available today.” I have read each edition of the book and, despite the presence of other outstanding constitutional treatises, I agree with that opinion. Unsurprisingly, however, because the authors have added much new material and significantly rewritten many subjects, they have cutback on a good deal of material that appeared in the fourth edition. This, I think, has resulted in a tighter focus on the key contemporary constitutional issues such as federalism and judicial power. But it would be a serious mistake to think that Australian Constitutional Law and Theory is or ever was simply a student’s casebook. Like its previous editions, it contains a wealth of material drawn from many writers and publications in addition to extracts from the cases, material which is often extensive and always relevant. In a review in the Law Institute Journal of Victoria, Michael Gronow said that, when he first read the extremely laudatory reviews on the back cover of a previous edition, he doubted whether any book could justify such enthusiasm. But he said he was wrong and that it was a book which one should own, read and revere, comments with which I entirely agree. - The Hon Michael McHugh’s launch speech, Friday 19 February 2010.

Reviews of previous editions:
The text is not limited to students; it is equally relevant to practitioners, researchers, government officials and politicians who need to appreciate and understand the principles and basis for our constitutional framework. ... The fourth edition is comprehensive in its coverage.CJ King, Victorian Bar News
A superb book. One of the best casebooks in any country that I have ever come across. - Greg Taylor, Monash University
[The third edition] is scholarly, informative, challenging and innovative. It certainly belongs on the shelf of anybody who is seriously interested in constitutional law. - Alternative Law Journal, Vol 28(1), February 2003
Blackshield and Williams’s new edition is a comprehensive guide to Australian constitutional law. Its real value, distinguishing it from similar texts, lies in its comprehensive coverage of Constitutionalism, Constitutional History, Sovereignty and Government. Further, the third edition introduces or expands material directly addressing issues of Human Rights, the Bill of Rights debate and Reconciliation. ...
[The book] provides an invaluable background resource for all things constitutional and governmental .... The third edition is a timely resource for Civil Libertarians who have an involvement in the processes of government. - Civil Liberty, Issue 189, June 2002
The book is much more than a casebook. It contains a wide range of materials, including excerpts from a broad range of writers and commentators. The contents of the book do provide, as the authors claim in their preface, ’the materials and commentary needed to understand the doctrines and theories behind the law’. More than that, it contains materials relevant to many questions of general interest such as the role of the courts, the appointment and removal of judges and the republican debate, to mention but a few. ... Indeed it is surprising how much the authors have succeeded in including in the book. That is all to the good. For too long, graduates have emerged from our Law Schools ill-equipped to participate in the contemporary controversies relating to topics which they have studied at the Law School. - Sir Anthony Mason AC KBE
A book of many useful and original insights. The authors helpfully stand back from the detail and reflect on the big questions - which is, after all, what constitutional law is usually about. - Justice Michael Kirby AC CMG
An excellent basis for teaching Australian constitutional law.Dennis Rose QC, Canberra Bulletin of Public Administration
A source book par excellence for students of Australian law, politics and government ... a careful, expert selection of extracts with high quality commentary and effective finding aids. - Alan Rose, Victorian Law Institute Journal
Students of constitutional law and politics will find it indispensable.The Australian Higher Education Supplement
The text is a rich well edited and widely sourced collection of materials capable of sustaining wide-ranging and extensive research perspectives and primary source material. - Peter Tsingos
Brilliant! The best Australian casebook I have read in any area of law. - Professor Neil Rees
A text which is dynamic and refreshing ... a comprehensive compilation. - Cynthia Sneddon, Newcastle Law Review
It has rapidly and deservedly become the leading available casebook for teachers and students of law interested in the theoretical dimension to the subject. - Craig Arnott, Law Text Culture
To the eyes of an Australian teacher of law this is an exciting variation on the legal casebook genre. Its choice of readings beyond the boundaries of black-letter law and the reflectively pedagogical way it introduces materials and discusses issues are ground-breaking. This time the range of sources is often inspired. - Penelope Pether, Alternative Law Journal
There is no doubt that the book will be of immense interest and utility to all readers. It is a mine of well-presented information relating to a variety of issues of the greatest importance to all Australians. - The Law Letter (Law Society of Tasmania)
It offers much more than the usual cases and materials text. In my view - and in the view of others - it is the most comprehensive treatment of Australian constitutional law available today. - David Hodgkinson, Ethos (Law Society of the ACT)
This is an exciting book. In only two years since the first edition, it has established itself as the leading Australian student casebook on its subject. It includes a wide-ranging and interesting collection of materials, and sparse but efficient commentary. It is a delight to leaf through, and even more of a delight to read carefully on a given topic...Students (and practicing lawyers) who read this book carefully will gain a rounded constitutional education. And they will have pleasure in doing so. When I first got the book, and read the extremely laudatory reviews on the back cover, I doubted whether any book could justify such enthusiasm. I was wrong. This is a book which one should own, read and revere. - Michael Gronow, Law Institute Journal (Victoria)

Table of Contents

The Westminster Constitution
Path to Independence
Indigenous Peoples
The Federal System
The Engineers’ Case
Constitutional Interpretation
Federal Parliament
State Constitutions
The Executive
The High Court
The Separation of Judicial Power
Judicial and Non-Judicial Detention
The Judicial Process
Economics Powers
Defence Power
International Law and the External Affairs Power
The Immigration and Aliens Powers
The Races Power
The Industrial Relations Power
Taxation and Excise
Appropriation and Grants
Intergovernmental Immunities
Civil and Political Freedoms
Economic Freedoms
Freedom of Political Communication
Freedom of Political Communication Applied
Constitutional Change

Of interest...