The (Limited) Significance of the Individual in Section 117 State Residence Discrimination

Posted: 20 Aug 2008

Abstract

The High Court has yet to resolve a clash of paradigms pervading the reasoning in Street v Queensland Bar Association, the leading case on the Constitution's s 117 prohibition of interstate residence discrimination. Some among the seven separate judgments in that case view s 117 as a non-discrimination rule grounded in intrinsic concern for the individual. Others understand 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 that means for s 117's application in the future, as to the kinds of evidence, reasoning, and comparative guidance that will be most pertinent.

Keywords: Australian constitutional law, section 117, High Court of Australia

Suggested Citation

Simpson, Amelia, The (Limited) Significance of the Individual in Section 117 State Residence Discrimination. Melbourne University Law Review, August 2008, ANU College of Law Research Paper No. 08-32, Available at SSRN: https://ssrn.com/abstract=1236762

Amelia Simpson (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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