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Blackshield and Williams Australian Constitutional Law and Theory

Blackshield and Williams Australian Constitutional Law and Theory

Commentary and Materials

7th edition

By George Williams, Sean Brennan and Andrew Lynch


This is the new and fully updated edition of the acclaimed and authoritative book on Australian constitutional law. Fresh material reflects the contemporary approach of the High Court including its emphasis on statutory interpretation as a tool of constitutional analysis. The book has also been fully revised and updated for major High Court and overseas decisions, including McCloy v New South Wales, Williams v Commonwealth (No 2), the Brexit Case and Plaintiff M68/2015 v Minister for Immigration. Always ‘much more than a casebook’ as Sir Anthony Mason said of a previous edition, the book also presents carefully selected extracts from a broad range of writers and commentators. As the reviewer for the Law Institute Journal said of the most recent edition, this book is ‘a great resource for practitioners wanting an authoritative guide to Australian constitutional law’ and a ‘must-have for law students who would like more depth of analysis’.

Key Features of the New Edition

  • Latest Decisions: The text incorporates full analysis of the High Court’s decisions in the important citizenship case (Re Canavan) and right to protest case (Brown v Tasmania) both handed down in late October 2017.
  • A new chapter on statutory interpretation and its connection to Australian constitutional law.
  • Substantial revisions to the chapter on constitutional change to take account of the Uluru Statement from the Heart and related developments up to late 2017.
  • Fresh perspectives on constitutional interpretation.
  • Consolidation of the material on the implied freedom of political communication into a single chapter, offering a more streamlined account of the doctrine’s development.
  • Major updates to the chapters on the High Court and judicial power.
  • Fully revised and updated for every major constitutional case since the 6th edition, including Commonwealth v Australian Capital Territory (Same Sex Marriage Case), Unions NSW v New South Wales, Plaintiff S156/2013 v Minister for Immigration, Kuczborski v Queensland, Williams v Commonwealth (No 2), Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship, Communications Union v Queensland Rail, Tajjour v New South Wales, McCloy v New South Wales, Australian Communications and Media Authority v Today FM, Duncan v Independent Commission Against Corruption, NAAJA v Northern Territory, Plaintiff M68/2015 v Minister for Immigration, Day v Australian Electoral Officer (SA), Alqudsi v The Queen, Murphy v Electoral Commissioner, Cunningham v Commonwealth, R (Miller) v Secretary of State (Brexit case), Plaintiff S195/2016 v Minister for Immigration and Border Protection, Re Culleton (No 2), Re Day (No 2), Knight v Victoria, and Graham v Minister for Immigration and Border Protection.

Also available is the Abridged edition, click here for details.


Preface to the Seventh Edition
Table of Extracts
Table of Cases
Table of Statutes

Part 1: Australian Constitutionalism

Chapter 1: Foundations

1. Australia: A Constitutional Hybrid
2. Political and Legal Constitutionalism
3. Liberalism
4. Rule of Law
5. Separation of Powers
6. Grundnorm and Coup d’Etat
             (a) The Basic Norm
             (b) Coup d’Etat
7. 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. Indigenous 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: 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) Textual Originalism and Evolution
            (d) Purposive Interpretation
            (e) Strategic Compromise?
4. Coherence, Integrity and Postmodernity
5. Legal Culture, Gender and ‘Different Voices’
6. Further References

Chapter 6: Statutory Interpretation and Constitutional Law

1. Introduction
2. The Constitutional Setting
3. The Principle of Legality
4. Disposing of Constitutional Cases
            (a) Judicial Parsimony
            (b) Reading Down and Severance
5. Constitutional Law and Statutory Drafting
6. Further References

Part 3: The Federal System

Chapter 7: 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 8: Australian Federalism in Practice

1. Intergovernmental Relations
2. Co-operative 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 9: The States

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

Chapter 10: The Territories

1. Introduction
2. Scope of the Territories Power
3. Limits on the Territories Power
4. Law-making by Self-governing Territories
5. Further References

Chapter 11: Inconsistency between Commonwealth and State Laws

1. Meaning of ‘Invalid’ and ‘Prevail’
2. The Tests of Inconsistency
            (a) Direct and Indirect Inconsistency
            (b) Concurrency
3. Self-executing Machine?
4. Manufacturing Inconsistency
5. Manufacturing Consistency
6. Further References

Part 4: The Executive and Executive Power

Chapter 12: The Executive

1. The Crown
2. The Governor-General
3. Executive Power
            (a) Prerogative Power
            (b) Nationhood Power
            (c) Power Conferred by Statute
            (d) Capacities of 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 13: 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. Deciding Constitutional Cases
            (a) Judicial Individualism and Institutionalism
            (b) Precedent and Overruling
            (c) Invalidity and Consequences
5. Further References

Chapter 14: 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 Exception
7. Legislative Usurpation and Interference
8. Further References

Chapter 15: Judicial and Non-Judicial Detention

1. Introduction
2. The Lim Principle
3. The Kable Doctrine – Incompatibility
4. Protective Detention
5. Immigration Detention
6. Preventive Detention
7. Control Orders
8. Further References

Chapter 16: 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 17: 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) Party Registration
            (f) Territory Senators
4. Eligibility for Election
5. Resolving Deadlocks
6. Further References

Chapter 18: 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 19: 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 20: 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 21: External Affairs Power

1. Introduction
2. External Affairs
            (a) Relations with Other Countries
            (b) Matters External to Australia
            (c) International Law Other than Treaties
3. Implementing Treaties
            (a) First Approaches
            (b) The Expanding Power
            (c) The Power Confirmed
            (d) International Recommendations
4. Further References

Chapter 22: 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 23: Races Power

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

Chapter 24: 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 25: Appropriation and Grants

1. The Appropriation Power
            (a) ‘Purposes of the Commonwealth’
            (b) The AAP Case
            (c) Section 81 Resolved
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 26: 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 27: Human Rights

1. Human Rights
2. Bills of Rights
3. Trial by Jury
4. Freedom of Religion
            (a) Separation of Church and State
            (b) Section 116
5. Rights of Out-of-State Residents
6. Further References

Chapter 28: 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 29: 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. The Scope of the Implied Freedom
            (a) The Politics of Protest
            (b) The Judicial Process
            (c) Refining the Second Lange Question
            (d) The Electoral Process
            (e) The Implied Freedom after McCloy
7. Movement and Association
8. Further References

Part 8: Constitutional Change

Chapter 30: Constitutional Change

1. Amending the Constitution
2. The Referendum Record
3. An Australian Republic?
4. Aboriginal and Torres Strait Islander 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



Australian lawyers are blessed with high-quality case books on constitutional law. While each of these books has its own merits, Blackshield and Williams is probably the best known in the field. It provides a comprehensive and reliable starting point for study or research in Australian constitutional law …
         This edition contains a new chapter on statutory interpretation and its relevance to constitutional law. There is also new material on proportionality, constitutional recognition of Indigenous peoples and decision-making in the High Court. The authors have also reorganised their treatment of the implied freedom of political communication. As would be expected, the book has been updated to cover all recent significant constitutional cases up to December 2017. All of these features are very useful as a reminder of constitutional developments in the past few years. …
         This book deserves its reputation as a high-quality overview of Australian constitutional law. I can recommend it to students, teachers and professionals alike.

Daniel Lovric, InPrint, Law Institute Journal Victoria, May 2018

This is the latest edition of this well-known text on Australian constitutional law. The last edition of the book was published in 2014, and as such – particularly given the degree of change in the constitution of the Court and in its approach since that time – this new edition has involved a thorough review of the existing material, and readers will find that the additions and revisions from the previous edition are extensive.
         The additions to the text are notable, both in terms of the new cases which are now included (for example, it deals with recent and notable decisions (of which there are too many to name for the purposes of this review) but also in the expansion upon existing topics, as well as a new chapter devoted to statutory interpretation and constitutional law.
         As Sir Anthony Mason said of a previous edition of this text, Australian Constitutional Law and Theory is “much more than a casebook”. The book is impressive in its scope and coverage, extending to the historical origins and influences of the Constitution, the philosophical basis for it, the key institutions established by it, as well as its content and interpretation. It also includes extracts not only from cases, but from other sources such as government reports, and other academic works.
         The text would make a valuable addition to any practitioner working in this field, or to law students who are looking for a more in-depth examination of the subject area.

Queensland Law Reporter 30 March 2018 [2018] 12 QLR

Reviews of previous editions:

It remains a great resource for practitioners wanting an authoritative guide to Australian constitutional law or a quick reference if a constitutional issue pops up in your practice.
Blackshield & Williams remains a must-have for law students who would like more depth of analysis and longer case notes than are provided in many of the comparable constitutional law texts. For practitioners, it is a great book to have on the shelf – you can dip into it when a constitutional issue arises and it will guide you to the key cases if you need more. Read full review...
Sky Mykyta, InPrint, Law Institute Journal Victoria, September 2014

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)


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Published 16 January 2018
Publisher The Federation Press
ISBN 9781760021511
Australian RRP $155.00
International Price $141.00
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Law - Constitutional

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