FORTHCOMING FEBRUARY 2014
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.
Reviews of previous editions:
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 ? (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. Aboriginal 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 - Constitutional 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) Textualism? (d) Incremental Accommodation? (e) Purposive Interpretation? (f) Strategic Compromise?? 4. Coherence, Integrity and Postmodernity? 5. Legal Culture, Gender and ‘Different Voices’ ? 6. Further References?
Part 3 - The Federal System
Chapter 6: Federalism and the Engineers Case1. 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 7: Australian Federalism in Practice1. Intergovernmental relations 2. Co-operative Legislative 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 8: Inconsistency between Commonwealth and State Laws 1. Meaning of ’Invalid’ and ‘Prevail’? 2. The Tests of Inconsistency? 3. Self-executing Machine?? 4. Manufacturing Inconsistency? 5. Manufacturing Consistency ? 6. Further References
Chapter 9: The Territories 1. The Territories? 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 Crown? 2. The Governor-General? 3. Executive Power? (a) Prerogative Power? (b) Nationhood Power? (c) Power Conferred by Statute? (d) 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 11: 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. Remedies? (a) Invalidity? (b) Reading Down and Severance ? 5. Deciding Constitutional Cases? (a) Judicial Parsimony? (b) Precedent and Overruling? 6. Further References
Chapter 12: 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 Doctrine? 7. Legislative Usurpation and Interference? 8. Further References?
Chapter 13: Judicial and Non-Judicial Detention 1. Introduction? 2. The Incompatibility Doctrine? 3. Protective Detention? 4. Immigration Detention? 5. Preventive Detention? 6. Control Orders 7. Further References?
Chapter 14: 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 15: 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) A Level Playing Field?? (f) Territory Senators? 4. Eligibility for Election? 5. Resolving Deadlocks? 6. Further References?
Chapter 16: State Legislative Power 1. Introduction? 2. State Legislative Power? (a) Peace, Welfare and Good Government? (b) Constitutional Amendment? 3. Manner and Form Requirements? 4. Alternative Procedures? 5. The Ranasinghe Principle? 6. Further References?
Chapter 17: 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 18: 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 19: 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 20: International Law and the External Affairs Power 1. Reception of International Law ? 2. International Law and Constitutional Interpretation? 3. External Affairs? (a) Relations with Other Countries? (b) Matters External to Australia? (c) International Law Other than Treaties? 4. Implementing Treaties? (a) Entering into Treaties? (b) First Approaches? (c) The Expanding Power? (d) The Power Confirmed? (e) International Recommendations? 5. Further References?
Chapter 21: Immigration and Aliens Powers1. 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 22: Races Power 1. Introduction? 2. A Commonwealth Power in Relation to Aboriginal People? 3. Special Laws Deemed Necessary for the People of Any Race 4. For the Benefit of a Race?? 5. Further References?
Chapter 23: 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 24: Appropriations and Grants 1. The Appropriation Power? (a) ‘Purposes of the Commonwealth’ (b) The AAP Case? (c) Section 81 Resolved? (d) Controls on Government Expenditure? 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 25: 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 26: Human Rights 1. Human Rights? 2. Bills of Rights 3 The Common Law and the Principle of Legality 4. Trial by Jury? 5. Freedom of Religion (a) Separation of Church and State (b) Section 116? 6. Rights of Out-of-State Residents? 7. Further References?
Chapter 27: 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 28: 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. Further References?
Chapter 29: Freedom of Political Communication: Testing Boundaries1. Expressive Conduct? 2. Movement and Association 3. The Politics of Protest? 4. Electoral Matters? 5. The Judicial Process ? (a) Criticising Judges? (b) Limitations from Ch III 6. Lange’s Two Questions? (a) Burdens on Political Communication ? (b) Legitimate Ends and Proportionate Means 7. Further References
Part 8 - Constitutional Change
Chapter 30: Constitutional Change 1. Amending the Constitution? 2. The Referendum Record 3. An Australian Republic?? 4. Aboriginal 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
Tertiary; University or College
Number Of Pages: 1488
Published: 3rd February 2014
Weight (kg): 2.068