Henry v Boehm

Henry v Boehm - [1973] HCA 32 - HCA 1973 case summary — Zoe

[29]

It seems to me that it was fundamental to the plaintiff's argument that a resident of a State within the meaning of that expression in s. 117, cannot reside elsewhere than in that State for any substantial period of time without necessarily ceasing to be relevantly a resident of that State. In my opinion, as indeed I have earlier said, s. 117 seems to be built on the concept that by reason of some degree of permanence of residence a subject of the Queen has become and is qualified for the purposes of this section as a "resident in any State". In this respect I do not accept the view that a person who happens at any moment to reside in a State is therefore for that reason a resident of that State. Section 117 appears to be dealing with the case of a person who not being a resident of the legislating State, is present in it. He may not whilst there be subject to any disability or discrimination because he is a resident in another State. It follows that a person may reside pro tem in one State while being a resident of another. A person who may thus properly be said to be a resident of a State does not in my opinion cease to be such if he resides out of that State with no intention of abandoning his "residence" there but for some purpose quite consistent with the maintenance of his State residence. Thus, in my opinion, the plaintiff, a resident of Victoria, would not cease to be resident in Victoria within the meaning of that description in s. 117 if he resided in South Australia merely for the purposes of his admission as a practitioner in that State. The Rules, in my opinion, do not require him to become a resident of South Australia or to abandon Victoria as his State of residence. But perhaps, more relevantly the rules do not lay any disability or discrimination upon the plaintiff because he is a resident of Victoria. In other words, residence is not made the basis of any disability or discrimination let alone any disability or discrimination to which a person resident in South Australia is not equally subject. In the words of the section, the plaintiff is not, in my opinion, subjected by the rules to any disability or discrimination which would not equally apply to him if he were a resident of South Australia.

[39]

The contention to which counsel for the plaintiff returned again and again in the course of argument is that the rules would require the plaintiff, a resident of Victoria, to go to South Australia and reside there, whereas they would operate differently if he were already a resident of South Australia. It is not, however, any part of the operation of the rules that a person seeking admission must give up his residence in another State and go to South Australia, notwithstanding that, in certain circumstances, a remote consequence of the rules would mean a change of residence. A resident of Victoria might, for instance, have lived in South Australia for a month before he decided to make an application for admission there. In such a case, although still a resident of Victoria, the applicant would be in exactly the same position as if he were a resident of South Australia. He would have to stay there for a further fifteen months. Indeed, at the basis of the argument for the plaintiff was the assumption that a person cannot live in one State while being resident in another State. It may be that s. 117 assumes that a person is resident in one State and not in two or more States, but, be that as it may, the word "resident" does not carry any implication that a person may not be absent. The requirement of residence in the rules is, however, different. The rules speak of "residing continuously" and in so doing impose a real limitation upon a person resident in South Australia. Such a person, having been admitted in Victoria, who spent some part of the three months prior to his application for admission as a barrister and solicitor of the Supreme Court of South Australia out of that State, would not comply with the rules, notwithstanding that during the whole of the three months he would have remained a resident of South Australia for the purposes of s. 117. To take the instant case, the plaintiff could qualify for conditional admission in South Australia while remaining a resident of Victoria for the purposes of s. 117 and for other purposes, notwithstanding that he was living in South Australia for the three months prior to his admission. In short, a person could reside continuously in South Australia for the purposes of the rules while still remaining a resident of Victoria. It is this continuous residence that the rules require whether the person applying by virtue of a previous admission is resident in South Australia or in another State.

[55]

One thing that is clear from the words of the section itself, and from the decision in Davies and Jones v. Western Australia [1] , is that s. 117 does not prohibit discrimination generally. A law of one State will be valid notwithstanding that it subjects a person who is resident in another State to a disability or discrimination, provided that the disability or discrimination would be equally applicable to that person if he were resident in the former State. What the section proscribes is a disability or discrimination based solely on the ground of residence in another State: Davies and Jones v. Western Australia, per Barton J. [2] , and per O'Connor J. [3] . It follows that a discrimination in favour of a person who not only resides within the State but also satisfies some additional condition or requirement would not infringe the constitutional guarantee (at least, according to O'Connor J. in Davies and Jones v. Western Australia [4] , if that other condition or requirement was substantial, by which it may have been meant that the imposition of the additional condition or requirement should not have been a merely colourable attempt to disguise the fact that the discrimination was really based on residence alone). For example, a State could validly give special taxation concessions to residents of particular areas, such as residents in the tropics. Such a law would effect a discrimination, but a person resident in another State who complained of it would be met with the answer that the law would be equally applicable to him if he were resident in the legislating State. Similarly, in my opinion if a State law discriminated between persons not because of residence alone but on the ground of residence for a specified period, it might again be said, if a person resident in another State complained of the law, that it would be equally applicable to him if he were resident in the State that had enacted the law. It is unnecessary to consider whether, in accordance with the suggestion made by O'Connor J., in some cases the specification of a period of residence might, having regard to the provisions of the statute as a whole, be treated as insubstantial or illusory so that in reality the law should be regarded as effecting a discrimination on the ground of residence alone.

[59]

Understood in the light of these observations, s. 117 does not in my opinion invalidate either of the rules now under attack. Rule 27 (1) applies to persons who are resident in South Australia as well as to those who are resident in any other State. It is obvious that "an applicant previously admitted elsewhere" will not necessarily be a person who resides outside South Australia. He may, for example, be a South Australian resident who has obtained his legal qualifications elsewhere. Whether he is a resident of South Australia or not he is required by r. 27 (1) to reside for at least three calendar months in the State continuously and immediately preceding the filing of his application for admission. Rule 27 draws a distinction between continuous residence (r. 27 (1)) and ordinary residence (r. 27 (2)). Sub-rule (1) requires the applicant to be physcially present in the State for a continuous period of three months, whether or not he ordinarily resides elsewhere. This requirement applies equally to applicants who are ordinarily resident in the State and to those who are not. A person ordinarily resident in South Australia would not satisfy the requirements of the rule if, for example, he had first moved into that State and established his home there less than three months before the date of filing his application or if, although at all times having his permanent home in the State, he was in fact absent from the State studying overseas during that three months' period. It was submitted that a resident of Victoria who wished to satisfy the rule would have to abandon for the time being his residence in Victoria whereas a resident of South Australia would merely continue his residence in that State, and that there was accordingly a discrimination based solely on residence. I cannot agree with this submission. In my opinion it is not right to say that the rule would require the Victorian to abandon his permanent residence in Victoria; what it requires is his physical presence in South Australia for the continuous period of three months. Exactly the same requirement is made of a South Australian resident. It is true that r. 27 does effect a discrimination, but that is brought about by sub-r. (2) and is clearly not based on residence alone. Sub-rule (2) discriminates in favour of two classes of persons. The first, dealt with by r. 27 (2) (i), comprises those who are ordinarily resident and domiciled in South Australia; Davies and Jones v. Western Australia [1] is an authority for the proposition that this is not a discrimination forbidden by s. 117. The second favoured class, mentioned in r. 27 (2) (ii), consists of certain solicitors who (inter alia) ordinarily reside and carry on practice within fifty miles of the boundary of South Australia. Again, clearly, a discrimination in favour of such a class is not based on residence alone.

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