The High Court and the Constitution
By: Leslie Zines
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.
AI Overview
"The High Court and the Constitution" by Leslie Zines is a seminal work that has undergone several editions, with the most recent one being the seventh edition, now attributed to both Zines and James Stellios. Here is a comprehensive overview of the book:
Key Themes
- Judicial Interpretation of the Constitution: The book delves into the judicial interpretation of the Australian Constitution, examining various aspects such as the commerce, corporations, and external affairs powers.
- Constitutional Principles: It explores the entrenched principles of judicial review, including Chapter III of the Constitution and its application at both the Commonwealth and State levels.
- High Court's Jurisdiction: The book provides an account of the High Court's constitutional jurisdiction over time, highlighting the shifting dynamics of the Court and its judicial characters.
- Methods, Techniques, and Attitudes: The final chapter focuses on the methods, techniques, and attitudes of the High Court in relation to the Constitution, offering a comprehensive analysis of how the Court approaches constitutional matters.
Plot Summary
The book is structured to provide a detailed examination of the Australian Constitution through the lens of judicial interpretation. It covers a broad range of topics, including:
- Commerce and Corporations Powers: The book analyzes how the High Court has interpreted these powers, which are crucial for understanding the economic and regulatory framework of Australia.
- External Affairs Powers: It explores how the High Court has interpreted the external affairs power, which is significant for Australia's international relations and its ability to implement international agreements.
- Judicial and Executive Powers: The book examines the relationship between the judicial and executive branches of government, particularly in the context of constitutional interpretation.
- Freedom of Interstate Trade: It discusses the freedom of interstate trade and how it has been interpreted by the High Court, which is essential for maintaining economic unity across different states.
- Intergovernmental Immunities: The book covers intergovernmental immunities, which are critical for understanding the balance of power between different levels of government in Australia.
- Representative Government: It explores the concept of representative government and how it is interpreted by the High Court, which is fundamental to democratic principles in Australia.
- Express and Implied Rights: The book examines both express and implied rights within the Constitution, which are essential for understanding individual freedoms and rights in Australia.
Critical Reception
The book has received positive reviews for its comprehensive and insightful analysis of the Australian Constitution through the lens of judicial interpretation. Here are some key points from the critical reception:
- Review by Stephen Free: The seventh edition, co-authored by James Stellios, has been praised for maintaining the intellectual legacy of Professor Leslie Zines while extending the analysis to recent developments. The review highlights the book's ability to explain both the entrenched principles of judicial review and the shifting dynamics of the High Court.
- Book Reviews: The initial edition of the book, published in 1987, was reviewed positively for its thorough examination of the High Court's role in interpreting the Constitution. The book was noted for its detailed analysis and comprehensive coverage of constitutional principles.
In summary, "The High Court and the Constitution" by Leslie Zines is a foundational text that has been updated to reflect recent developments in constitutional law. It provides a detailed and insightful analysis of the judicial interpretation of the Australian Constitution, making it a crucial resource for scholars and practitioners in the field of constitutional law.