Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Rights in the Australian Federation

Author(s): James Stellios

The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched Bill of Rights. Yet, Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.Aroney, Nicholas and Stellios, James, Rights in the Australian Federation (January 17, 2018). European Journal of Law Reform (2018). Available at SSRN: https://ssrn.com/abstract=3103493

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law

Rights in the Australian Federation

Author(s): James Stellios

The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched Bill of Rights. Yet, Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law

Tasmanian Dam Case

The Tasmanian Dam Case 30 Years On: An enduring legacy

Author(s): Heather Roberts, James Stellios

In one of the great contests between State and federal power, the Tasmanian Dam Case pitted the immovable object of Tasmania’s commitment to a massive hydro-electric project against the irresistible force of the Commonwealth’s determination to protect the environment.

Who would prevail? Was it more important to create jobs and provide cheap power, or to preserve the natural beauty of the Tasmanian wilderness? On whom did the Australian Constitution confer the power to decide this question?

By the narrowest of majorities, the High Court decided in 1983 that the Commonwealth had the final say, and upheld legislation that prohibited the construction of a dam on the Gordon River below the Franklin.

Because of the passions aroused by the case, the Court took the unprecedented step of issuing a statement explaining that its job was not to decide whether the proposed dam was a good idea or not, but to determine whether this was a matter of State or federal power. Yet this issue was just as hotly contested. Could any subject be brought within federal power merely by the presence of an international treaty on that subject? Would affirming this proposition destroy the intended balance between State and federal power? Would denying the proposition disable Australia from full participation in international affairs?

Three decades after the High Court’s decision, these and other questions of law and policy remain of vital importance. This book brings together a fascinating collection of commentaries on the impact of the decision, and how the hopes and fears following the decision have played out.

This stimulating and timely book contains reflections from then Commonwealth Attorney-General Gareth Evans, then High Court Justice Sir Anthony Mason and leading Indigenous lawyer Professor Mick Dodson. The book also examines some novel questions, such as whether the outcome of the case was inevitable, how similar issues have played out in Canada, and whether better conservation outcomes are more likely to come from the Commonwealth or the States. These and other chapters offer fresh perspectives on one of the most important cases in High Court history.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Australian Constitutional Law

Hanks Australian Constitutional Law Materials and Commentary, 10th Edition

Author(s): James Stellios, D Meagher

This book considers the concepts underlying our Constitution and explores constitutional decision-making in context. It reviews all of the important constitutional decisions of the High Court of Australia, and exposes the issues that arise in those decisions to a critical analysis. The book covers all major areas of study in both constitutional law and public law.

Updates for this edition include the two Williams cases in which the High Court reworked the executive power of the Commonwealth to contract and spend; recent cases developing the Kable principles and considering the validity of State laws against Chapter III implications; important recent cases on the implied freedom of political communication; recent cases on s 92 of the Constitution dealing with internet trade and commerce.

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Centre: CIPL

Research theme: Constitutional Law and Theory

The Centralisation of Judicial Power within the Australian Federal System

Author(s): James Stellios

This article considers the patterns of centralisation within the federal judicial system. While centralisation of legislative, executive and fiscal power within the federal system has been well documented, the architecture of judicial federalism has been the subject of less attention. The article, first, seeks to show that principles derived from Chapter III of the Constitution have, on the whole, exhibited broadly similar centralising characteristics and exerted centralising effects, and, secondly, offers explanations for this centralisation.

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Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law

Australian Constitutionalism and the UK-Style Dialogue Model of Human Rights Protection

Author(s): James Stellios

This paper considers the constitutional obstacles in Australia to the effective operation of a UK-style dialogue model of human rights protection. In Momcilovic v The Queen, the High Court of Australia relied upon separation of judicial power principles to frustrate the operation of dialogue models in Australia: whether enacted at the federal or State level. As a consequence, constitutionalism Australian-style – specifically, separation of powers implications – presents impenetrable obstacles to the effective operation of a UK-style dialogue model, and has locked in a limited role for the judiciary in the protection of rights.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law

Zine's The High Court and the Constitution

Zines's The High Court and the Constitution

Author(s): James Stellios

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. In this 6th edition of the book, by Dr James Stellios, analyses and critiques the High Court’s jurisprudence over that period. Changes have been made to all chapters to update the existing law. 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; and the High Court’s application of s 92 to national markets in the internet-based new economy.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Stellios, Australian Constitutional Law

Hanks Australian Constitutional Law Materials and Commentary

Author(s): James Stellios, Jennifer Clarke, Patrick Keyzer

Hanks Australian Constitutional Law - Materials & Commentary is the authoritative casebook for the study of constitutional law. This book considers the concepts underlying our Constitution and explores constitutional decision-making in context. The title reviews all of the important constitutional decisions of the High Court of Australia, and exposes the issues that arise in those decisions to a critical analysis.  Improvements for this edition include an integrated chapter on judicial power (Ch 9), separate consideration of s 92 (Ch 11), strengthening the public law focus of chapter 1, and reintroducing a detailed table of contents. New to this edition are reference of state powers to the Commonwealth and intergovernmental co-operation (Ch 1 and 5), national security and defence (Ch 3), and a complete re-write of chapter 8, 'The Executive'.

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Centre:

Research theme: Constitutional Law and Theory

Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights

Author(s): Will Bateman, James Stellios

The High Court’s decision in Momcilovic v The Queen is the first to consider the compatibility of the Charter of Human Rights and Responsibilities 2006 (Vic) with ch III of the Constitution. The decision will have significant implications for the continuing effectiveness of key provisions of the Charter, the Human Rights Act 2004 (ACT) and any future federal charter of human rights. This article analyses the decision and evaluates its implications for the dialogue model of statutory human rights protection in Australia. It also considers several controversial statements concerning the principles of federal jurisdiction that arise from the decision.

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Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law, Law and Technology, Regulatory Law and Policy

Book cover

The Federal Judicature: Chapter III of the Constitution Commentary and Cases

Author(s): James Stellios

A unique and accessible introduction to the federal judicial system established by Chapter III of the Constitution – the chapter at the centre of the constitutional structures of government in Australia. Its provisions create the federal judicature and define the way in which it operates. Its interpretation has had a pivotal role in the design and operation of all institutions of government at the Federal, State and Territory levels. However, despite its central place in Australia's constitutional framework, Chapter III is not widely understood. This book is designed as an introduction to this important part of the Constitution.

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Centre:

Research theme: Constitutional Law and Theory

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