The (Limited) Significance of the Individual in Section 117 State Residence Discrimination
Posted: 20 Aug 2008
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
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