Leading constitutional law scholars George Williams, Sean Brennan and Andrew Lynch are joined by Rebecca Ananian-Welsh and Peta Stephenson for the 8th edition of this acclaimed book on Australian constitutional law.
The book has been fully revised and updated to include the most recent High Court and overseas decisions, including NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023), Benbrika v Minister for Home Affairs (2023), Farm Transparency International Ltd v New South Wales (2022), Alexander v Minister for Home Affairs (2022), Chetcuti v Commonwealth (2021), Palmer v Western Australia (2021), LibertyWorks Inc v Commonwealth (2021), Love v Commonwealth (2020) and Work Health Authority v Outback Ballooning (2019) and Spence v Queensland (2019).
Key features of the new edition
– a new executive summary at the start of each chapter introducing readers to key points;
– a two-colour design making it easier to engage with the text;
– up-to-date analysis of High Court cases in areas including the executive, separation of judicial power, inconsistency, immigration and aliens powers, and implied freedom of political communication;
– new material on the Voice to Parliament and the 2023 referendum; and
– carefully selected extracts from a broad range of writers and commentators.
Preface to the Eighth Edition
Acknowledgments
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. Why are Constitutions Obeyed?
4. Rule of Law
5. Separation of Powers
Chapter 2: Origins and Influences
1. The Evolution of the Westminster Constitution
(a) Magna Carta
(b) Parliament
(c) Star Chamber and Common Law Courts
(d) The Glorious Revolution
2. Westminster Government
(a) Responsible and Representative Government
(b) Parliamentary Sovereignty
(c) Constitutional Conventions
(d) The Courts, Property and Liberty
3. The Constitution of the United States
(a) Divisions of Power – Horizontal and Vertical
(b) Judicial Review
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
Chapter 4: Indigenous Peoples
1. Introduction
2. The Constitution and the Franchise Before Mabo (No 2)
3. The Significance of Mabo (No 2)
4. Indigenous Sovereignty
(a) Perspectives on Sovereignty
(b) The United States
(c) Australia
5. Self-determination
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) Dynamic Interpretation
(e) Strategic Compromise?
4. Legal Culture, Gender and ‘Different Voices’
Chapter 6: Statutory Interpretation and Constitutional Law
1. Intention and the Tool to Ascertain It
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
PART 3: THE FEDERAL SYSTEM
Chapter 7: Federalism and the Engineers Case
1. Australian Federalism
2. The Division of Legislative Power
3. Implied Immunity of Instrumentalities
4. Reserved State Powers
5. The Engineers Case
6. The Significance and Legacy of Engineers
Chapter 8: Australian Federalism in Practice
1. Intergovernmental Relations
2. Co-operative Schemes
3. Referrals of Power
4. Former Powers of the United Kingdom Parliament
5. Federal Financial Relations
6. Equal Treatment of States
Chapter 9: The States
1. State Constitutions
2. State Legislative Power
(a) Peace, Welfare and Good Government
(b) Constitutional Amendment
3. Manner and Form Requirements
4. Alternative Procedures
Chapter 10: The Territories
1. The Territories
2. Scope of the Territories Power
3. Limits on the Territories Power
4. Self-government
Chapter 11: Inconsistency between Commonwealth and State Laws
1. Meaning of ‘Invalid’, ‘Prevail’ and ‘Laws’
2. The Concept of Inconsistency
3. Manufacturing Inconsistency
4. Manufacturing Consistency
PART 4: THE EXCUTIVE AND EXECUTIVE POWER
Chapter 12: The Executive and Executive Power
1. The Crown
2. The Governor-General
3. The Executive Power of the Commonwealth
(a) Prerogative Power
(b) Nationhood Power
(c) Capacities of Contracting and Spending
(d) Executive Power Conferred by Statute
4. Control of the Executive
(a) Responsible Government
(b) Constitutional Writs
PART 5: THE JUDICIARY AND JUDICIAL POWER
Chapter 13: The High Court
1. Inception
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) Precedent and Overruling
(b) Invalidity and Consequences
Chapter 14: Separation of Federal Judicial Power
1. Federal Judicial Power May Only Be Exercised by Courts
2. Federal Courts May Only Exercise Judicial Power
3. Defining Judicial Power
4. Judicial Power and Administrative Tribunals
5. Exceptions to Boilermakers
(a) Military Tribunals
(b) Delegation of Judicial Power
(c) Persona Designata Rule and Incompatibility Limit
6. Legislative Usurpation and Interference
Chapter 15: Chapter III and the States
1. The Separation of State Judicial Power
2. Incompatibility and the Kable Doctrine
(a) Kable v Director of Public Prosecutions (NSW)
(b) Aftermath and Scope
3. Defining and Essential Characteristics of Courts
(a) Judicial Appointments and Conditions
(b) Duty to Give Reasons
(c) Decisional Independence
(d) Supervisory Jurisdiction
4. Federal Jurisdiction in State Courts and Tribunals
Chapter 16: Chapter III and Restrictions on Liberty
1. Foundations: Lim and Kable
2. Protective Detention
3. Immigration Detention and Citizenship Revocation
(a) Immigration Detention
(b) Citizenship Revocation
4. Preventative Justice
(a) Continued Detention of Serious Offenders
(b) Preventative Justice Broadened: Risk-Based Control and Detention
Chapter 17: Judicial Process
1. Foundational Principles
2. Retrospectivity
3. Equal Justice
4. Procedural Fairness
(a) Fair Criminal TriaL
(b) Secrecy and Adversarial Justice
PART 6: THE PARLIAMENT AND LEGISLATIVE POWER
Chapter 18: Federal Parliament
1. Composition of the Federal Parliament
2. Voting and Elections
(a) Voting
(b) Express Right to Vote
(c) Implied Right to Vote
(d) Voter Equality
(e) Party Registration
(f) Territory Senators
3. Eligibility for Election
4. Resolving Deadlocks
Chapter 19: Characterisation and Proportionality
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, Incidental Power and Limitations
(a) Purpose Powers
(b) Purpose and the Implied Incidental Power
(c) Constitutional Limitations
Chapter 20: Economic Powers
1. The Trade and Commerce Power
(a) The Meaning of ‘Trade and Commerce’
(b) The Distinction between Interstate and Intrastate Trade and Commerce
2. The Corporations Power
(a) Which Corporations?
(b) What is the Scope of the Corporations Power?
Chapter 21: Defence Power
1. General Principles
2. War
3. Post-War
4. Peace
5. The Communist Party Case
6. Terrorism
Chapter 22: External Affairs Power
1. Incorporation of International Law
2. External Affairs
(a) Matters External to Australia
(b) Relations with Other Countries
(c) International Law Other than Treaties
3. Implementing Treaties
(a) First Approaches
(b) The Expanding Power
(c) The Powers Confirmed
(d) International Recommendations
Chapter 23: Immigration and Aliens Powers
1. The Immigration Power
2. Naturalisation and Aliens
(a) Citizenship
(b) Persons Born in the UK and Colonies
(c) Persons Born in Australia
(d) Aboriginal People
Chapter 24: Races Power
1. The Races Power from Federation to 1967
2. Towards a Commonwealth Power Regarding Aboriginal People
3. Special Laws Deemed Necessary for People of Any Race
4. For the Benefit of a Race?
5. The Legacy of the 1967 Referendum
Chapter 25: Taxation and Grants
1. The Taxation Power
(a) What is a Tax?
(b) Fees for Services
(c) Arbitrary Exactions
2. The Grants Power
(a) Uniform Tax Cases
(b) Limits on the Power
PART 7: LIMITS ON POWER
Chapter 26: Intergovernmental Immunities
1. Intergovernmental Immunities
2. State Immunity from Commonwealth Laws
(a) The Melbourne Corporation Principle
(b) Restatement I: Two Limbs
(c) Restatement II: One Principle
3. Commonwealth Immunity from State Laws
Chapter 27: Human Rights
1. Human Rights
2. Bills of Rights
3. Trial by Jury
4. Freedom of Religion
5. Rights of Out-of-State Residents
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
Chapter 29: Freedom of Political Communication
1. The Murphy Catalyst
2. Launch of the Implied Freedom
3. Expansion and Division
4. The Implied Freedom Confirmed
5. Development of the Implied Freedom
(a) Communication Beyond Speech
(b) Need for a Burden on ‘Pre-existing Rights’?
(c) Legitimate Means and Legitimate End
(d) Redefining the Second Lange Question
6. The Implied Freedom after McCloy
7. Movement and Association
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 Voice
Index
Reviews of previous editions
The insightful commentary and incorporation of a wide range of constitutional scholarship is what sets this book apart from many others in the field.
The new edition maintains the status of this book as “much more than a casebook” as Sir Anthony Mason said of a previous edition. …
In short, this is a really useful, authoritative reference on Australian constitutional law for any practitioner’s library.
Chris McGrath, Hearsay, September 2018, 83
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.
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, Law Institute Journal Victoria
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
