Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials
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Blackshield and Williams Australian Constitutional Law and Theory

Commentary and Materials

By George Williams, Sean Brennan, Andrew Lynch

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Format: Paperback, 1488 pages, 6th Revised edition Edition
Published In: Australia, 03 February 2014
FORTHCOMING NEW EDITION: SEMESTER 1, 2018 - contact academic@federationpress.com.au to register your interest. In its sixth edition, Australian Constitutional Law and Theory: Commentary and Materials has undergone a major rewrite. Every chapter has been reviewed and revised, with fresh choices made for cases and extracts to ensure that the book reflects the contemporary approach of the High Court and recent Australian and international scholarship. Particular attention has been paid to improving the accessibility of the book. Commentary has been rewritten to provide clearer explanation of concepts and case outcomes, and paragraph numbering has been introduced throughout the book to allow for the ready identification of specific points. Major cases added since the last edition include: Williams v Commonwealth (School Chaplains Case), Momcilovic v The Queen, Kirk v Industrial Court of New South Wales, Cadia Holdings Pty Ltd v New South Wales, New South Wales v Kable, Haskins v Commonwealth, Plaintiff M47-2012 v Director-General of Security, Assistant Commissioner Condon v Pompano Pty Ltd, South Australia v Totani, Wainohu v New South Wales, Roy Morgan Research Pty Ltd v Commissioner of Taxation, R v LK, Betfair Pty Ltd v Racing New South Wales, Sportsbet v New South Wales, JT International SA v Commonwealth, Hogan v Hinch, Wotton v Queensland, Monis v The Queen and Fortescue Metals Group Ltd v Commonwealth. As this list indicates, the sixth edition has been brought up to date for every significant legal development in the field. Other changes in this new edition include: Major revisions to the first chapters of the book to provide a more accessible introduction to the subject. The introduction of many new extracts from contemporary Australian and international scholarship, including material written by current members of the High Court on topics such as constitutional interpretation and proportionality. The complete revision of the chapter on constitutional change, including through the introduction of a new section on the forthcoming referendum on Aboriginal recognition in the Constitution. The development of a new chapter on human rights, which includes new material on subjects such as the principle of legality and the new regime for parliamentary scrutiny on human rights grounds of federal legislation. Major new additions on the separation of judicial power relating to matters such as challenges to State anti-bikie laws and the introduction of new limits on State legislative power to limit judicial review. A change in focus to hone in on contemporary debates by way of the addition of many extracts and the development of commentary in chapters such as those on constitutional interpretation, federalism The rewriting of the chapters on the implied freedom of political communication to pare back the pre-Lange material in favour of the clearer development of the law after that decision in light of recent cases decided by the High Court. Also available is the Abridged edition, click here for details.

Table of Contents

Print Table of Contents Part 1 - Australian Constitutionalism Chapter 1: Foundations1. Australia: A Constitutional Hybrid2. Political and Legal Constitutionalism3. Liberalism 4. Economic Liberalism5. Rule of Law6. Separation of Powers7. Grundnorm and Coup d'Etat (a) The Basic Norm (b) Coup d'Etat8. Further References Chapter 2: Origins and Influences1. Introduction2. The Evolution of the Westminster Constitution (a) Magna Carta (b) Parliament (c) Star Chamber and Common Law Courts (d) The Bloodless Revolution3. Westminster Government (a) Responsible and Representative Government â â (b) Parliamentary Sovereignty â (c) Constitutional Conventions â â (d) Courts and Private Lawâ â 4. The Constitution of the United States (a) Separations of Power - Horizontal and Vertical (b) Judicial Review 5. Further Referencesâ Chapter 3: Path to Independence 1. Colonisationâ 2. The Colonial Legislaturesâ 3. Federationâ 4. The Colonial Legacyâ 5. The Statute of Westminsterâ (a) Extraterritorialityâ (b) Repugnancyâ 6. Appeals to the Privy Councilâ 7. The Australia Actâ 8. Popular Sovereigntyâ 9. Further Referencesâ â Chapter 4: Indigenous Peoples 1. Introductionâ â 2. Aboriginal Peoples and the Constitutionâ â 3. Native Titleâ â 4. Indigenous Sovereignty (a) Perspectives on Sovereignty (b) The United States (c) The Australian Situation 5. Self-determinationâ â 6. Further References Part 2 - Constitutional Interpretation Chapter 5: Constitutional Interpretation 1. Literalism, Legalism and Judicial Choice â 2. The Jumbunna Principleâ 3. The Dead Hand and the Living Treeâ (a) Use of Historical Materialsâ (b) The Intention of the Framersâ (c) Textualismâ (d) Incremental Accommodationâ (e) Purposive Interpretationâ (f) Strategic Compromise?â 4. Coherence, Integrity and Postmodernityâ 5. Legal Culture, Gender and `Different Voices' â 6. Further Referencesâ Part 3 - The Federal System Chapter 6: Federalism and the Engineers Case1. Federalismâ 2. Australian Federalismâ 3. The Division of Legislative Powerâ 4. Implied Immunity of Instrumentalitiesâ 5. Reserved State Powersâ 6. The Engineers Caseâ 7. Further Referencesâ Chapter 7: Australian Federalism in Practice1. Intergovernmental relations 2. Co-operative Legislative Schemes â 3. Referrals of Powerâ 4. Powers of the United Kingdom Parliamentâ 5. Federal Financial Relations 6. Equal Treatment of Statesâ 7. Further References Chapter 8: Inconsistency between Commonwealth and State Laws 1. Meaning of 'Invalid' and `Prevail'â 2. The Tests of Inconsistencyâ 3. Self-executing Machine?â 4. Manufacturing Inconsistencyâ 5. Manufacturing Consistency â 6. Further References Chapter 9: The Territories 1. The Territoriesâ 2. Scope of the Territories Power 3. Limits on the Territories Power 4. Further References Part 4 - The Executive and Executive Power Chapter 10: The Executive 1. The Crownâ 2. The Governor-Generalâ 3. Executive Powerâ (a) Prerogative Powerâ (b) Nationhood Powerâ (c) Power Conferred by Statuteâ (d) Contracting and Spending 4. Control of the Executiveâ (a) Responsible Governmentâ (b) Constitutional Writsâ 5. Further Referencesâ Part 5 - The Judiciary and Judicial Power Chapter 11: The High Court 1. The Platonic High Courtâ 2. Appointment and Removal of Judgesâ (a) Appointmentâ (b) Removalâ 3. Jurisdiction â (a) Appellate Jurisdictionâ (b) Original Jurisdictionâ (c) `Matters'â (d) Standingâ (e) Justiciabilityâ 4. Remediesâ (a) Invalidityâ (b) Reading Down and Severance â 5. Deciding Constitutional Casesâ (a) Judicial Parsimonyâ (b) Precedent and Overrulingâ 6. Further References Chapter 12: Separation of Judicial Power 1. The Separation of Federal Judicial Powerâ 2. The Separation of State Judicial Powerâ 3. Defining Judicial Powerâ 4. Judicial Power and Administrative Tribunalsâ 5. Exceptions to the Boilermakers Caseâ (a) Military Tribunals (b) Delegation of Judicial Powerâ (c) Persona Designata Ruleâ 6. The Incompatibility Doctrineâ 7. Legislative Usurpation and Interferenceâ 8. Further Referencesâ Chapter 13: Judicial and Non-Judicial Detention 1. Introductionâ 2. The Incompatibility Doctrineâ 3. Protective Detentionâ 4. Immigration Detentionâ 5. Preventive Detentionâ 6. Control Orders 7. Further Referencesâ Chapter 14: The Judicial Process 1. Introductionâ â 2. Retrospectivityâ â 3. Fair Trialâ â 4. Equal Justiceâ â 5. Impartiality, Independence and Integrityâ â (a) Judges - Appointment and Conditions (b) Secrecy and Non-Disclosure (c) Decisional Independence (d) Supervisory Jurisdiction 6. Further Referencesâ Part 6 - The Parliament and Legislative Power Chapter 15: Federal Parliament 1. Introductionâ 2. Parliamentary Privilegeâ 3. Voting and Electionsâ (a) Voting â (b) Express Right to Voteâ (c) Implied Right to Voteâ (d) Voter Equalityâ (e) A Level Playing Field?â (f) Territory Senatorsâ 4. Eligibility for Electionâ 5. Resolving Deadlocksâ 6. Further Referencesâ Chapter 16: State Legislative Power 1. Introductionâ 2. State Legislative Powerâ (a) Peace, Welfare and Good Governmentâ (b) Constitutional Amendmentâ 3. Manner and Form Requirementsâ 4. Alternative Proceduresâ 5. The Ranasinghe Principleâ 6. Further Referencesâ Chapter 17: Characterisation 1. Characterisationâ 2. Dual Characterisationâ 3. Interaction between Heads of Powerâ 4. Subject Matter and Purpose Powersâ 5. Subject Matter Powersâ (a) Sufficient Connectionâ (b) The Role of Purposeâ (c) Incidental Powersâ 6. Proportionality - Purpose Powers and Limitationsâ (a) Purpose Powers (b) Beyond Purpose Powers? (c) Constitutional Limitations 7. Further Referencesâ Chapter 18: Economic Powers 1. The Trade and Commerce Powerâ (a) Scopeâ (b) Incidental Aspectâ 2. The Corporations Powerâ (a) Huddart Parker Overthrownâ (b) Which Corporations?â (c) Reach of the Powerâ 3. Further Referencesâ Chapter 19: Defence Power 1. Nature of the Powerâ 2. Warâ 3. Post-Warâ 4. Peaceâ 5. Military Justiceâ 6. Cold War: The Communist Party Caseâ 7. Terrorism and National Securityâ 8. Further Referencesâ Chapter 20: International Law and the External Affairs Power 1. Reception of International Law â 2. International Law and Constitutional Interpretationâ 3. External Affairsâ (a) Relations with Other Countriesâ (b) Matters External to Australiaâ (c) International Law Other than Treatiesâ 4. Implementing Treatiesâ (a) Entering into Treatiesâ (b) First Approachesâ (c) The Expanding Powerâ â (d) The Power Confirmedâ (e) International Recommendationsâ 5. Further Referencesâ Chapter 21: Immigration and Aliens Powers1. The White Australia Policyâ 2. `Once an immigrant always an immigrant'â 3. Naturalisation and Aliensâ (a) Citizenshipâ â (b) Persons Born in Britainâ â (c) Persons Born in Australiaâ 4. Further References Chapter 22: Races Power 1. Introductionâ 2. A Commonwealth Power in Relation to Aboriginal Peopleâ 3. Special Laws Deemed Necessary for the People of Any Race 4. For the Benefit of a Race?â 5. Further Referencesâ Chapter 23: Taxation and Excise 1. The Taxation Powerâ (a) What is a Tax?â (b) Fees for Servicesâ (c) Arbitrary Exactionsâ (d) Incidental Aspect â 2. Excise Dutiesâ (a) First Approachesâ (b) Widening Views of Exciseâ (c) The Tangled Web of Dennis Hotelsâ (d) Alcohol, Tobacco and Petrolâ (e) The Grip of Precedentâ (f) The States Lose $5 Billionâ 3. Further Referencesâ Chapter 24: Appropriations and Grants 1. The Appropriation Powerâ (a) `Purposes of the Commonwealth' (b) The AAP Caseâ (c) Section 81 Resolvedâ (d) Controls on Government Expenditureâ 2. The Grants Powerâ (a) The Early Casesâ (b) The Uniform Tax Casesâ (c) Limits on the Powerâ 3. Further References Part 7 - Limits on Power Chapter 25: Intergovernmental Immunities 1. Intergovernmental Immunitiesâ 2. Commonwealth Laws and the Statesâ (a) The Melbourne Corporation Principleâ (b) Restatement I: Two Principlesâ (c) Restatement II: One Principleâ 3. State Laws and the Commonwealthâ 4. Further Referencesâ Chapter 26: Human Rights 1. Human Rightsâ 2. Bills of Rights 3 The Common Law and the Principle of Legality 4. Trial by Juryâ 5. Freedom of Religion (a) Separation of Church and State (b) Section 116â 6. Rights of Out-of-State Residentsâ 7. Further Referencesâ Chapter 27: Economic Freedoms 1. Freedom of Interstate Trade, Commerce and Intercourseâ â (a) Isaacs, Dixon and Barwickâ â (b) The Whitfield Thunderboltâ (c) Cole's New Worldâ â (d) `Intercourse' among the Statesâ â 2. Acquisition of Property on Just Termsâ â (a) `Property'â â (b) Laws with Respect to the Acquisition of Propertyâ â (c) `Just terms'â â 3. Further Referencesâ â Chapter 28: Freedom of Political Communication 1. Introductionâ 2. The Murphy Catalystâ 3. Launch of the Implied Freedomâ 4. Expansion and Division 5. The Implied Freedom Confirmedâ 6. Further Referencesâ Chapter 29: Freedom of Political Communication: Testing Boundaries1. Expressive Conductâ 2. Movement and Association 3. The Politics of Protestâ 4. Electoral Mattersâ 5. The Judicial Process â (a) Criticising Judgesâ (b) Limitations from Ch III 6. Lange's Two Questionsâ (a) Burdens on Political Communication â (b) Legitimate Ends and Proportionate Means 7. Further References Part 8 - Constitutional Change Chapter 30: Constitutional Change 1. Amending the Constitutionâ 2. The Referendum Record 3. An Australian Republic?â 4. Aboriginal Peoples 5. Further Referencesâ 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

Reviews

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 Reviews of previous editions: 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)

EAN: 9781862879188
ISBN: 1862879184
Publisher: Federation Press
Age Range: 15+ years
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