Preface to the Seventh 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. 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
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
Index
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
