The Federation Press

The High Court and the Constitution


It is over eleven years since the previous edition was published by Butterworths (Lexis Nexis). This edition therefore includes information, analysis and critique of the High Court’s jurisprudence during that period. Some of its main highlights are:

(a) the reformulation and development of the implied freedom of communication on governmental matters, and the establishment of the right to vote in federal elections;
(b) the restriction on Parliament’s power to interfere with due process and judicial method as administered by the courts, and similar restrictions on the power of the State Parliaments in respect of their courts as a result of the Kable doctrine;
(c) judicial disagreement regarding questions of administrative detention as typified by the Al-Khateb case. The exercise by federal judges as persona designata, and by State courts, of non-judicial functions;
(d) the extent of the corporations power following the WorkChoices case;
(e) recent developments relating to restrictions on the power of the Commonwealth to bind the States and of the States to affect or bind the Commonwealth
(f) the effect of the attainment of Australian sovereignty and other practical considerations on the interpretation of such constitutional concepts as “aliens”, “subject of the Queen” and “foreign power”, and on the interpretation of the residuary power in s51(xxxviii);
(g) the changed approach of the present court to Commonwealth-State cooperative legislative schemes;
(h) more generally, the attitude and method of the Gleeson Court as compared with that prevailing at the time the fourth edition was published.

Changes have been made to all chapters and encompass other matters such as attempts to reformulate to some degree the principles of characterisation, the freedom of interstate intercourse, a number of problems associated with the relationship of s61 and the common law, trial by jury and the freedom from discrimination of persons resident in other States under s117.


Reviews of previous editions

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

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

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)

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)

Table of Contents

The Struggle for Standards
Characterisation: The Subject Matter of a Power
Characterisation: Matters incidental to the Subject of a Power
Incidental Power: Trade and Commerce
The Corporations Power
Section 92: The Search for a Theory
Section 92: The ‘Individual Right’ Theory
Section 92: The Triumph of the Free Trade Theory
The Separation of Powers
The Judicial Power of the Commonwealth
“The Stream Cannot Rise Above its Source” – The Doctrine in the Communist Party Case
The Crown and the Executive Government
Australia as a Nation in External and Internal Affairs
Intergovernmental Relations
Representative Government
Constitutional Rights
The High Court: Methods, Techniques and Attitudes

Of interest...