The Federation Press

Blackshield and Williams Australian Constitutional Law and Theory

Commentary and Materials


In its sixth edition, Australian Constitutional Law and Theory: Commentary and Materials has undergone a major rewrite. Every chapter has been reviewed and revised, with fresh choices made for cases and extracts to ensure that the book reflects the contemporary approach of the High Court and recent Australian and international scholarship. Particular attention has been paid to improving the accessibility of the book. Commentary has been rewritten to provide clearer explanation of concepts and case outcomes, and paragraph numbering has been introduced throughout the book to allow for the ready identification of specific points.

Major cases added since the last edition include: Williams v Commonwealth (School Chaplains Case), Momcilovic v The Queen, Kirk v Industrial Court of New South Wales, Cadia Holdings Pty Ltd v New South Wales, New South Wales v Kable, Haskins v Commonwealth, Plaintiff M47-2012 v Director-General of Security, Assistant Commissioner Condon v Pompano Pty Ltd, South Australia v Totani, Wainohu v New South Wales, Roy Morgan Research Pty Ltd v Commissioner of Taxation, R v LK, Betfair Pty Ltd v Racing New South Wales, Sportsbet v New South Wales, JT International SA v Commonwealth, Hogan v Hinch, Wotton v Queensland, Monis v The Queen and Fortescue Metals Group Ltd v Commonwealth. As this list indicates, the sixth edition has been brought up to date for every significant legal development in the field.
Other changes in this new edition include:

  • Major revisions to the first chapters of the book to provide a more accessible introduction to the subject.
  • The introduction of many new extracts from contemporary Australian and international scholarship, including material written by current members of the High Court on topics such as constitutional interpretation and proportionality.
  • The complete revision of the chapter on constitutional change, including through the introduction of a new section on the forthcoming referendum on Aboriginal recognition in the Constitution.
  • The development of a new chapter on human rights, which includes new material on subjects such as the principle of legality and the new regime for parliamentary scrutiny on human rights grounds of federal legislation.
  • Major new additions on the separation of judicial power relating to matters such as challenges to State anti-bikie laws and the introduction of new limits on State legislative power to limit judicial review.
  • A change in focus to hone in on contemporary debates by way of the addition of many extracts and the development of commentary in chapters such as those on constitutional interpretation, federalism
  • The rewriting of the chapters on the implied freedom of political communication to pare back the pre-Lange material in favour of the clearer development of the law after that decision in light of recent cases decided by the High Court.

Also available is the Abridged edition.


Reviews of previous editions:

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

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

Part 1 - Australian Constitutionalism

Chapter 1: Foundations
1. Australia: A Constitutional Hybrid
2. Political and Legal Constitutionalism
3. Liberalism
4. Economic Liberalism
5. Rule of Law
6. Separation of Powers
7. Grundnorm and Coup d’Etat
(a) The Basic Norm
(b) Coup d’Etat
8. Further References

Chapter 2: Origins and Influences
1. Introduction
2. The Evolution of the Westminster Constitution
(a) Magna Carta
(b) Parliament
(c) Star Chamber and Common Law Courts
(d) The Bloodless Revolution
3. Westminster Government
(a) Responsible and Representative Government    
(b) Parliamentary Sovereignty  
(c) Constitutional Conventions    
(d) Courts and Private Law   
4. The Constitution of the United States
(a) Separations of Power – Horizontal and Vertical
(b) Judicial Review
5. Further References 

Chapter 3: Path to Independence
1. Colonisation 
2. The Colonial Legislatures 
3. Federation 
4. The Colonial Legacy 
5. The Statute of Westminster 
(a) Extraterritoriality 
(b) Repugnancy 
6. Appeals to the Privy Council 
7. The Australia Act 
8. Popular Sovereignty 
9. Further References   

Chapter 4: Indigenous Peoples
1. Introduction   
2. Aboriginal Peoples and the Constitution   
3. Native Title   
4. Indigenous Sovereignty
(a) Perspectives on Sovereignty
(b) The United States
(c) The Australian Situation
5. Self-determination   
6. Further References
Part 2 - Constitutional Interpretation

Chapter 5: Constitutional Interpretation
1. Literalism, Legalism and Judicial Choice  
2. The Jumbunna Principle 
3. The Dead Hand and the Living Tree 
(a) Use of Historical Materials 
(b) The Intention of the Framers 
(c) Textualism 
(d) Incremental Accommodation 
(e) Purposive Interpretation 
(f) Strategic Compromise? 
4. Coherence, Integrity and Postmodernity 
5. Legal Culture, Gender and ‘Different Voices’  
6. Further References 
Part 3 - The Federal System

Chapter 6: Federalism and the Engineers Case
1. Federalism 
2. Australian Federalism 
3. The Division of Legislative Power 
4. Implied Immunity of Instrumentalities 
5. Reserved State Powers 
6. The Engineers Case 
7. Further References 

Chapter 7: Australian Federalism in Practice
1. Intergovernmental relations
2. Co‐operative Legislative Schemes  
3. Referrals of Power 
4. Powers of the United Kingdom Parliament 
5. Federal Financial Relations
6. Equal Treatment of States 
7. Further References

Chapter 8: Inconsistency between Commonwealth and State Laws
1. Meaning of ’Invalid’ and ‘Prevail’ 
2. The Tests of Inconsistency 
3. Self-executing Machine? 
4. Manufacturing Inconsistency 
5. Manufacturing Consistency  
6. Further References

Chapter 9: The Territories
1. The Territories 
2. Scope of the Territories Power
3. Limits on the Territories Power
4. Further References
Part 4 - The Executive and Executive Power

Chapter 10: The Executive
1. The Crown 
2. The Governor-General 
3. Executive Power 
(a) Prerogative Power 
(b) Nationhood Power 
(c) Power Conferred by Statute 
(d) Contracting and Spending
4. Control of the Executive 
(a) Responsible Government 
(b) Constitutional Writs 
5. Further References 
Part 5 - The Judiciary and Judicial Power

Chapter 11: The High Court
1. The Platonic High Court 
2. Appointment and Removal of Judges 
(a) Appointment 
(b) Removal 
3. Jurisdiction  
(a) Appellate Jurisdiction 
(b) Original Jurisdiction 
(c) ‘Matters’ 
(d) Standing 
(e) Justiciability 
4. Remedies 
(a) Invalidity 
(b) Reading Down and Severance  
5. Deciding Constitutional Cases 
(a) Judicial Parsimony 
(b) Precedent and Overruling 
6. Further References

Chapter 12: Separation of Judicial Power
1. The Separation of Federal Judicial Power 
2. The Separation of State Judicial Power 
3. Defining Judicial Power 
4. Judicial Power and Administrative Tribunals 
5. Exceptions to the Boilermakers Case 
(a) Military Tribunals
(b) Delegation of Judicial Power 
(c) Persona Designata Rule 
6. The Incompatibility Doctrine 
7. Legislative Usurpation and Interference 
8. Further References 

Chapter 13: Judicial and Non-Judicial Detention
1. Introduction 
2. The Incompatibility Doctrine 
3. Protective Detention 
4. Immigration Detention 
5. Preventive Detention 
6. Control Orders
7. Further References 

Chapter 14: The Judicial Process
1. Introduction   
2. Retrospectivity   
3. Fair Trial   
4. Equal Justice   
5. Impartiality, Independence and Integrity   
(a) Judges – Appointment and Conditions
(b) Secrecy and Non-Disclosure
(c) Decisional Independence
(d) Supervisory Jurisdiction
6. Further References 
Part 6 - The Parliament and Legislative Power

Chapter 15: Federal Parliament
1. Introduction 
2. Parliamentary Privilege 
3. Voting and Elections 
(a) Voting  
(b) Express Right to Vote 
(c) Implied Right to Vote 
(d) Voter Equality 
(e) A Level Playing Field? 
(f) Territory Senators 
4. Eligibility for Election 
5. Resolving Deadlocks 
6. Further References 

Chapter 16: State Legislative Power
1. Introduction 
2. State Legislative Power 
(a) Peace, Welfare and Good Government 
(b) Constitutional Amendment 
3. Manner and Form Requirements 
4. Alternative Procedures 
5. The Ranasinghe Principle 
6. Further References 

Chapter 17: Characterisation
1. Characterisation 
2. Dual Characterisation 
3. Interaction between Heads of Power 
4. Subject Matter and Purpose Powers 
5. Subject Matter Powers 
(a) Sufficient Connection 
(b) The Role of Purpose 
(c) Incidental Powers 
6. Proportionality – Purpose Powers and Limitations 
(a) Purpose Powers
(b) Beyond Purpose Powers?
(c) Constitutional Limitations
7. Further References 

Chapter 18: Economic Powers
1. The Trade and Commerce Power 
(a) Scope 
(b) Incidental Aspect 
2. The Corporations Power 
(a) Huddart Parker Overthrown 
(b) Which Corporations? 
(c) Reach of the Power 
3. Further References 

Chapter 19: Defence Power
1. Nature of the Power 
2. War 
3. Post-War 
4. Peace 
5. Military Justice 
6. Cold War: The Communist Party Case 
7. Terrorism and National Security 
8. Further References 

Chapter 20: International Law and the External Affairs Power
1. Reception of International Law  
2. International Law and Constitutional Interpretation 
3. External Affairs 
(a) Relations with Other Countries 
(b) Matters External to Australia 
(c) International Law Other than Treaties 
4. Implementing Treaties 
(a) Entering into Treaties 
(b) First Approaches 
(c) The Expanding Power   
(d) The Power Confirmed 
(e) International Recommendations 
5. Further References 

Chapter 21: Immigration and Aliens Powers
1. The White Australia Policy 
2. ‘Once an immigrant always an immigrant’ 
3. Naturalisation and Aliens 
(a) Citizenship   
(b) Persons Born in Britain   
(c) Persons Born in Australia 
4. Further References

Chapter 22: Races Power
1. Introduction 
2. A Commonwealth Power in Relation to Aboriginal People 
3. Special Laws Deemed Necessary for the People of Any Race
4. For the Benefit of a Race? 
5. Further References 

Chapter 23: Taxation and Excise
1. The Taxation Power 
(a) What is a Tax? 
(b) Fees for Services 
(c) Arbitrary Exactions 
(d) Incidental Aspect  
2. Excise Duties 
(a) First Approaches 
(b) Widening Views of Excise 
(c) The Tangled Web of Dennis Hotels 
(d) Alcohol, Tobacco and Petrol 
(e) The Grip of Precedent 
(f) The States Lose $5 Billion 
3. Further References 

Chapter 24: Appropriations and Grants
1. The Appropriation Power 
(a) ‘Purposes of the Commonwealth’
(b) The AAP Case 
(c) Section 81 Resolved 
(d) Controls on Government Expenditure 
2. The Grants Power 
(a) The Early Cases 
(b) The Uniform Tax Cases 
(c) Limits on the Power 
3. Further References
Part 7 - Limits on Power

Chapter 25: Intergovernmental Immunities
1. Intergovernmental Immunities 
2. Commonwealth Laws and the States 
(a) The Melbourne Corporation Principle 
(b) Restatement I: Two Principles 
(c) Restatement II: One Principle 
3. State Laws and the Commonwealth 
4. Further References 

Chapter 26: Human Rights
1. Human Rights 
2. Bills of Rights
3 The Common Law and the Principle of Legality
4. Trial by Jury 
5. Freedom of Religion
(a) Separation of Church and State
(b) Section 116 
6. Rights of Out-of-State Residents 
7. Further References 

Chapter 27: Economic Freedoms
1. Freedom of Interstate Trade, Commerce and Intercourse   
(a) Isaacs, Dixon and Barwick   
(b) The Whitfield Thunderbolt 
(c) Cole’s New World   
(d) ‘Intercourse’ among the States   
2. Acquisition of Property on Just Terms   
(a) ‘Property’   
(b) Laws with Respect to the Acquisition of Property   
(c) ‘Just terms’   
3. Further References   

Chapter 28: Freedom of Political Communication
1. Introduction 
2. The Murphy Catalyst 
3. Launch of the Implied Freedom 
4. Expansion and Division
5. The Implied Freedom Confirmed 
6. Further References 

Chapter 29: Freedom of Political Communication: Testing Boundaries
1. Expressive Conduct 
2. Movement and Association
3. The Politics of Protest 
4. Electoral Matters 
5. The Judicial Process  
(a) Criticising Judges 
(b) Limitations from Ch III
6. Lange’s Two Questions 
(a) Burdens on Political Communication  
(b) Legitimate Ends and Proportionate Means
7. Further References
Part 8 - Constitutional Change

Chapter 30: Constitutional Change
1. Amending the Constitution 
2. The Referendum Record
3. An Australian Republic? 
4. Aboriginal Peoples
5. Further References 
Part 9 - Appendix

1. Australian Constitution
2. Colonial Laws Validity Act 1865 (Imp)
3. Statute of Westminster Adoption Act 1942 (Cth)
4. Australia Act 1986 (Cth)
5. Justices of the High Court of Australia
(a) The Justices
(b) Composition of the Court

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