The (limited) significance of the individual in section 117 state residence discrimination.

• Jurisdiction: Australia
• Date: 01 August 2008
• Author: Simpson, Amelia

[The High Court of Australia has yet to resolve a clash of paradigms that pervades the reasoning in Street v Queensland Bar Association, the leading case on the Constitution's s 117 prohibition of discrimination on the basis of interstate residence. Some of the seven separate judgments in that case characterised s 117 as a non-discrimination rule grounded in intrinsic concern for the individual Others understood the provision in instrumental terms, viewing its protection of individuals as nothing more than a vehicle for securing federal-structural goals. Neither view clearly prevailed in Street or in subsequent cases. This article explains why a federal-structural understanding of s 117 should be favoured, for reasons of constitutional principle and of consistency with other areas of constitutional law. It also considers what this means for the application of s 117 in the future with regards to the kinds of evidence, reasoning and comparative guidance that will be most pertinent to s 117 decision-making.]

CONTENTS I Introduction II The Nature of the s 117 Non-Discrimination Rule A Drafting and Early Interpretation B The Great Leap Forward: Street v Queensland Bar Association C Underlying Disagreement: Are Individuals Valued Intrinsically or Instrumentally? D Sidestepping the Problem: Case Law since Street III The Case for the Federal-Structural View of s 117 A Popular Sovereignty and the Argument Based on Consent B Constitutional Paradigm Shifts, Legitimacy and Consistency C Poor Prospects for an Individual Rights View of s 117 IV The Future Direction of s 117 A A Focus on Collective, Federal-Structural Interests B Seeking Guidance in Comparative Law V Conclusion I INTRODUCTION

The High Court of Australia's most recent encounter with s 117 of the Constitution--in Sweedman v Transport Accident Commission ('Sweedman') (1)--did nothing to resolve the conceptual confusion that the Court introduced into this area in the landmark case of Street v Queensland Bar Association ('Street'). (2) This article explores the nature of the fundamental disagreement that permeates Street and explains how the High Court should resolve that disagreement.

While Street was a revolutionary case, modernising and breathing life into a previously emaciated corner of the Constitution, the intense contestation of ideas that took place around the key issues is reflected in seven separate judgments. Later judicial deliberations and scholarship have understandably approached this multiplicity of judgments as a minefield to be negotiated with the greatest care. (3)

To the extent that s 117 scholarship has engaged with the difficulties inherent in Street, it has generally focused upon the most obvious locus of disagreement among the seven judgments: the nature and scope of the exceptions (4) to the operation of s 117. (5) This article focuses instead on a different schism, one that is analytically prior to the concern with exceptions and that goes to the very root of Australia's constitutional system.

This prior disagreement relates to the nature and source of the non-discrimination rule itself. In exploring it, I will employ the distinction between valuing individual rights intrinsically and valuing them instrumentally. Essentially, I will contend that some of the judgments delivered in Street view s 117 as a non-discrimination rule grounded in concern for the individual, thus valuing the protection of individuals intrinsically. Meanwhile, others understand the provision in principally instrumental terms, viewing its protection of individuals as nothing more than a vehicle for securing federal-structural goals.

Those familiar with Australian constitutional law will recognise immediately that my subject matter here is just one corner of a broader story played out in the High Court over the last 20 years. That story is the attempt by some judges during the period of the Mason Court to instil a new understanding of the Australian constitutional compact, one in which individuals would be a central concern and the rights of individuals would be accorded intrinsic worth. (6) As others have noted, these efforts were partly leavened by the suggested emergence of 'popular sovereignty' after the Australia Act reforms. (7) However, these developments also involved enthusiasm for progressivist tools of constitutional interpretation, as well as a revisionist view of constitutional history. (8)

While those efforts have faltered and the 'new constitutional law' (9) has been rejected in other areas of the High Court's constitutional jurisprudence, this resolution has yet to be reached in the s 117 context. Although many would say, instinctively, that the current Court would reject any footing for s 117 inspired by individual rights, the Court has been curiously reluctant to confirm this position; it has passed up two opportunities since Street to clarify the nature of the provision and remove resulting uncertainties about its application, (10) Moreover, in the most recent case of Sweedman a majority of the Court provided some nourishment to the position in Street that focused on individual rights, with a roundabout endorsement of Gaudron J's views in Street. It may be that deep-rooted ambiguity in the Street decision has been overlooked, due in part to the complicating choice of law issues arising in the cases heard since Street. These have forged unlikely alliances and distracted the Court from the problems bedevilling its s 117 jurisprudence. In any case, a clean-up of the area is overdue.

This article is organised as follows. In Part II, I explain the Court's approach to s 117 both before and after Street, and examine in more detail the reasoning in that case, drawing out two distinct positions regarding the purpose and nature of the provision. I then proceed in Part III to explain why an instrumentally-reasoned, federal-structural understanding of s 117 should be favoured for reasons of constitutional principle and of consistency with other areas of the Court's constitutional jurisprudence. Finally, in Part IV, I consider what that clarification would mean for the application of s 117 in the future as to the kinds of evidence, reasoning and comparative guidance that will be most relevant to a s 117 analysis. In concluding, I stress that my position does not amount to a rejection of the value of deontological constitutional rights, either generally or specifically in relation to discrimination. Rather, my analysis of s 117 simply reveals it as an unsuitable repository for that aspiration.

II THE NATURE OF THE S 117 NON-DISCRIMINATION RULE

A Drafting and Early Interpretation

Section 117 is unique among the non-discrimination provisions in the Australian Constitution in that it is directed specifically to the position of individuals. It provides that:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in any other State. A draft provision widely recognised as the forerunner to s 117 was proposed by Andrew Inglis Clark and added to the original draft Bill by the drafting subcommittee of the 1891 Convention. That provision read:

A State shall not make or enforce any law abridging any the [sic] privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction, the equal protection of the laws. (11) That draft was inspired by and modelled on two provisions contained in the United States Constitution--the art IV [section] 2 'Privileges and Immunities Clause' and the Fourteenth Amendment 'Equal Protection Clause'. (12) However, this broadly cast protection against discrimination was ultimately rejected in favour of something much more narrowly focused. The provision was pruned severely and eventually deleted at the 1898 Melbourne Session of the Convention Debates, where the present text of s 117 was later adopted. The Debates indicate that most of the framers accepted the received English wisdom that representative democracy provided sufficient protection for individuals. (13) On the specific question of discrimination, a majority of framers at the 1898 Convention were reluctant to fetter the new states' capacity to discriminate on the basis of race, as had been common practice in the pre-Federation colonies)4 It was for this reason that s 117, as finally adopted, prohibited discrimination on only one ground--out-of-state residence.

The High Court's early consideration of s 117 gave the provision a very narrow construction. In the first case invoking s 117, Davies v Western Australia, (15) the Court upheld an estate tax that applied at a higher rate to beneficiaries not 'residents of and domiciled in Western Australia', (16) As the criterion of operation was residence and domicile, rather than residence alone, s 117 was considered inapplicable. Some 70 years later in Henry v Boehm, (17) the Court rejected a s 117 challenge to South Australian Rules of Court that regulated lawyers' admission to practice. Applicants previously admitted in another state were required to reside in South Australia for at least three months before filing for admission there. Such applicants were then granted conditional admission and had to reside in South Australia for a further 12 months in order to qualify for absolute admission. (18) These rules were challenged by a Victorian solicitor seeking admission in South Australia. A majority of the Court, with only Stephen J dissenting, found that s 117 was not triggered because the residence requirements applied equally to residents of South Australia previously admitted elsewhere. It was this narrow and formalistic interpretation that confronted the Mason Court when s 117 came before it in Street.

B The Great Leap Forward." Street v Queensland Bar Association

Street is widely regarded as one the...