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Zines's The High Court and the Constitution

Zines's The High Court and the Constitution

6th edition

By James Stellios

CONTENTSREVIEWS

It has been seven years since the last edition of Professor Zines’s classic book, 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 6th edition of the book, by Dr James Stellios, contains analysis and critique of the High Court’s jurisprudence over that period. Changes have been made to all chapters to update the existing law. However, the most significant updates relate to:

  • The reformulation of the Commonwealth’s executive power to contract and spend following the High Court’s decisions in Pape and the two Williams cases;
  • The High Court’s continuing development of Chapter III principles, particularly its renewed interest in the Kable limitation on State Parliaments;
  • The uncertainties appearing in recent High Court cases on the implied freedom of political communication;
  • The High Court’s application of s 92 to national markets in the internet-based new economy.

________________________________________________

From the Launch in Sydney...

“It is a very great pleasure to launch the 6th edition of The High Court and the Constitution and to congratulate James Stellios on his success in maintaining, and perhaps enhancing, the very high quality of Leslie Zines’ previous editions. … it remains for me to state expressly what has been implied in every sentence of this speech. This is a great book. It is truly an Australian classic which is of value to both sophisticated lawyers, students and those who are interested in the Australian Constitution and the High Court and how each of them works.” Read launch speech...

From the Launch Speech by The Hon Sir Anthony Mason AC KBE GBM


CONTENTS

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


REVIEWS

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. Read full review...

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. Read full review...

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:

  1. 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; 
  2. recent decisions relating to s 92 of the Constitution, in the context of the modern economy and internet commerce; and 
  3. 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

Reviews of earlier editions:

[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

   

Published 29 May 2015
Publisher The Federation Press
Hardback/752pp
ISBN 9781760020248
Australian RRP $165.00
International Price $150.00
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Law - Constitutional


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