The Federation Press

Zines’s The High Court and the Constitution


It has been seven years since the last edition of Professor Zines’s classic book, The High Court and the Constitution. In that time the High Court has handed down a range of important decisions transforming, extending and developing existing constitutional law principles. The 6th edition of the book, by Dr James Stellios, contains analysis and critique of the High Court’s jurisprudence over that period. Changes have been made to all chapters to update the existing law. However, the most significant updates relate to:

  • The reformulation of the Commonwealth’s executive power to contract and spend following the High Court’s decisions in Pape and the two Williams cases;
  • The High Court’s continuing development of Chapter III principles, particularly its renewed interest in the Kable limitation on State Parliaments;
  • The uncertainties appearing in recent High Court cases on the implied freedom of political communication;
  • The High Court’s application of s 92 to national markets in the internet-based new economy.


Reviews of earlier editions:

[T]his long overdue edition [5th edition] of Professor Zines’s seminal work on the High Court and the Constitution … encapsulates and explains [develoments since 1997] with a clarity that is uncharacteristsic of works of this nature. - Australian Banking and Finance Law Bulletin

The High Court and the Constitution [4th edition] has made itself indispensable to teachers, students and practitioners of Australian Constitutional Law. There is no better book on the subject. - UNSW Law Journal

This publication … has become the epitome of where to look to identify where the thinking of the High Court is, compared with where it was in the past. …
Professor Zines has frequently been complimented on his previous works and I can do no better than urge anyone with a love of our Constitution to take the time to further their understanding by reading this [4th] edition. It will undoubtedly leave you with a greater understanding of where the High Court is at and how it has got there. On scale of 10, this is accorded a 9.5. - The Law Letter (Tasmania)

The fourth edition of The High Court and the Constitution may be characterised, like the previous editions, chiefly as a work of style and scholarship. The author’s keen intellect and mastery of the subject matter is evident throughout, from the arrangement of the chapters to the content of the addenda. …
The clear strength of the book for practitioners, academics and students alike is the clever combination of materials and approaches. This is no work of dry exposition. The text is enlivened by critique, opinion and a keen historical sense which illuminates the perennial and neoteric issues of federal constitutional law and institutional life. The High Court and the Constitution continues as a deservedly authoritative constitutional text, in the very best tradition of that term. - Law Institute Journal (Victoria)

The High Court and the Constitution [3rd edition] has been at the forefront of constitutional scholarship, study and commentary since it was first published. - Sir Anthony Mason, in Future Directions in Australian Constitutional Law

Table of Contents

Table of Cases

1. The Struggle for Standards
2. Characterisation: The Subject Matter of a Power
3. Characterisation: Matters Incidental to the Subject of a Power
4. Incidental Power: Trade and Commerce
5. The Corporations Power
6. Section 92: The Search for a Theory
7. Section 92: The "Individual Right" Theory
8. Section 92: The Triumph of the Free Trade Theory
9. The Separation of Powers
10. The Judicial Power of the Commonwealth
11. “The Stream Cannot Rise Above its Source” – The Doctrine in the Communist Party Case
12. The Crown and the Executive Government
13. Australia as a Nation in External and Internal Affairs
14. Intergovernmental Relations
15. Representative Government
16. Constitutional Rights
17. The High Court: Methods, Techniques and Attitudes


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