This is the new and fully updated edition of the acclaimed and authoritative book on Australian constitutional law.
Fresh material reflects the contemporary approach of the High Court including its emphasis on statutory interpretation as a tool of constitutional analysis.
The book has also been fully revised and updated for major High Court and overseas decisions, including McCloy v New South Wales, Williams v Commonwealth (No 2), the Brexit Case and Plaintiff M68/2015 v Minister for Immigration.
Always 'much more than a casebook' as Sir Anthony Mason said of a previous edition, the book also presents carefully selected extracts from a broad range of writers and commentators.
As the reviewer for the Law Institute Journal said of the most recent edition, this book is 'a great resource for practitioners wanting an authoritative guide to Australian constitutional law' and a 'must-have for law students who would like more depth of analysis'.
Key Features of the New Edition
- The text incorporates full analysis of the High Court's decisions in the important citizenship case (Re Canavan) and right to protest case (Brown v Tasmania) both handed down in late October 2017.
- A new chapter on statutory interpretation and its connection to Australian constitutional law.
- Substantial revisions to the chapter on constitutional change to take account of the Uluru Statement from the Heart and related developments up to late 2017.
- Fresh perspectives on constitutional interpretation.
- Consolidation of the material on the implied freedom of political communication into a single chapter, offering a more streamlined account of the doctrine's development.
- Major updates to the chapters on the High Court and judicial power.
Fully revised and updated for every major constitutional case since the 6th edition, including
Commonwealth v Australian Capital Territory (Same Sex Marriage Case), Unions NSW v New South Wales, Plaintiff S156/2013 v Minister for Immigration, Kuczborski v Queensland, Williams v Commonwealth (No 2), Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship, Communications Union v Queensland Rail, Tajjour v New South Wales, McCloy v New South Wales, Australian Communications and Media Authority v Today FM, Duncan v Independent Commission Against Corruption, NAAJA v Northern Territory, Plaintiff M68/2015 v Minister for Immigration, Day v Australian Electoral Officer (SA), Alqudsi v The Queen, Murphy v Electoral Commissioner, Cunningham v Commonwealth, R (Miller) v Secretary of State (Brexit case), Plaintiff S195/2016 v Minister for Immigration and Border Protection, Re Culleton (No 2), Re Day (No 2), Knight v Victoria, and Graham v Minister for Immigration and Border Protection.
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
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
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