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

Abstract

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 tos 117 decision-making. Show more