It has been seven years since the publication of the 6th edition of Professor Zines’s classic book on Australian constitutional law, 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 7th edition of the book, by Professor James Stellios, contains analysis and critique of the High Court’s jurisprudence over that period. Revisions have been made to almost all chapters to update the existing law. The most significant revisions relate to:
- The new developments on the implied freedom of political communication, including the adoption of structured proportionality;
- The alignment of the intercourse and trade and commerce limbs of s 92 in the context of border closures to address the COVID-19 pandemic, and the acceptance of structured proportionality in that context;
- The acceptance of a reciprocal intergovernmental immunities doctrine;
- The High Court’s continuing development of Chapter III principles;
- The interpretative method of the Court, including in cases on dual citizenship; and
- The updated analysis of principles of characterisation, particularly in relation to the aliens power and incidental power.
Preface
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
Index
The book is highly recommended. It is a snapshot of where the law is now, a novelisation of the history of the body of case law surrounding some of the most contentious areas of constitutional law. This text employs literary devices and suspense between pages, snippets of history and anecdotes, bringing life to what some may consider a dry history. This edition will be a useful and engaging text both for practitioners and those with an interest in constitutional law and the role of the High Court.
Alexandra Feeney, Queensland Lawyer, Vol 40 (2024)
The focal point of ‘rights’ in modern legal debate makes the chapter concerning constitutional rights particularly interesting. Divided between the express constitutional guarantees (provided for in ss 51(xxxi), 80, 116 and 117 of the Constitution) and implied rights, the chapter comprehensively addresses how constitutional rights are to be understood and applied. Read full review…
Kate Slack, Chapter III (Law Council of Australia), Autumn edition 2023
Here Stellios is uniquely qualified to explain the principles emerging from the case law. The work of Stellios on Chapter III is rightly regarded as authoritative, and here it finds expression in a lengthy and commanding chapter on judicial power. There is a detailed account of Kable v Director of Public Prosecutions (NSW) and the long line of cases which followed, developing the concept of the institutional integrity of the Courts as an important check on legislative power. Read full review…
Stephen Free, UNSW Law Journal Forum, [2023] No 1
The book’s analysis of Spence v Queensland (2019) 268 CLR 355 is illuminating, not least because the analysis of the scope of Commonwealth legislative power in the sixth edition of the book was relied on by each of the Justices of the High Court in their respective decisions in Spence. Read full review…
Kate Slack, Hearsay, Issue 90: Dec 2022.
Reviews of earlier editions:
This is part historical account, part critique, of the High Court’s interpretation of the Constitution since Federation. The book, in production since 1981, is an arduous labour of collection and analysis of High Court decisions over that period. The manner in which the vast array of judgments are synthesised, evaluated and compared is truly remarkable. It is a classic.
For practitioners, it will best serve as a reference tool to assist in understanding the more important elements of the Constitution. It does not need to be read continuously: you will find more than enough stimuli leafing through a few pages on any given topic.
Leigh Howard, InPrint, Law Institute Journal Victoria, April 2016
As the present author says in his preface, this iconic work has over its various editions offered students, practitioners, judges and policy-makers a sophisticated and deep analysis of the cases matched by an exceptional ability to place constitutional law in its broader context, evaluating doctrinal principles against constitutional values and policy considerations.
It is a fine thing that this iconic work has been brought up to date. The work still demands a place on the thinking Australian lawyer’s shelves.
Acting Justice Peter W Young AO, Australian Law Journal, April 2016
The five previous editions of this text have provided a unique insight into Australian constitutional law. This latest edition brings the work up to date with recent developments in this area, including:
- the decisions in Pape v Commissioner of Taxation ((2009) 238 CLR 1) and the Williams cases ((2012) 248 CLR 156 and (2014) 88 ALJR 701), which concerned the scope of the executive power in s 61 of the Constitution to contract and spend;
- recent decisions relating to s 92 of the Constitution, in the context of the modern economy and internet commerce; and
- the further development of the Kable principle.
Professor James Stellios notes in the preface to the book that this updated edition was intended to be a collaborative effort between himself and Professor Zines. This was no longer possible after Professor Zines’ passing in 2014.
However, the new edition produced by Professor Stellios, guided in some respects, as he has mentioned, by Professor Zines’ insights, remains a comprehensive and definitive work on Australian constitutional law, and how it has been applied and interpreted by the High Court.
Queensland Law Reporter – 22 January 2016 – [2016] 02 QLR
Since its first edition, authored by the late Professor Leslie Zines and published in 1981, this influential book has provided a comprehens ive and sophisticated critique of the High Court’s elucidation and elaboration of the text of the Constitution. Although this edition was originally intended as a collaborative effort by Professor Zines with Associate Professor James Stellios, Stellios assumed responsibility for the new edition on Professor Zines’ passing away in 2014. Whilst maintaining much of the original text, Stellios has made numerous and notable contributions, including to the book’s consideration of the High Court’s fast developing jurisprudence regarding the federal separation of powers and its manifestation in the Kable principle; of the scope of executive power, in light of the High Court’s decisions in the Pape and Williams cases; and of the implied freedom of political communication. It may be said that, with this new edition and author, this book is well placed to remain a classic and thought-provoking text of value to sophisticated lawyers or students, interested in the Australian Constitution and its elucidation and elaboration by the High Court.
Queensland Law Reporter – 25 September 2015 – [2015] 37 QLR
[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
