Street v Queensland Bar Association - [1989] HCA 53 - HCA 1987 case summary — Zoe

CTHHCA

Street v Queensland Bar Association

[1989] HCA 53

High Court of Australia|1987-07-02|Before: McHugh JJ

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Court

High Court of Australia

Decision date

1987-07-02

Before

McHugh JJ

Source

Original judgment source is linked above.

Judgment (304 paragraphs)

[1]

The applicant, Alexander Whistler Street, applied to the Supreme Court of Queensland for admission as a barrister of that Court, relying on his previous admission as a barrister of the Supreme Court of New South Wales. Mr. Street is permanently resident in New South Wales. From what appears in the judgments of the Full Court which heard Mr. Street's application for admission, it seems that he complied in all respects with the rules of the Supreme Court of Queensland relating to the admission of barristers save that he intends to continue to reside in New South Wales and he does not intend to cease to practise as a barrister in that State. The Full Court refused his application [70] . Connolly J., with whom Shepherdson J. agreed, said [71] :

[2]

He is in all respects qualified to be admitted as a barrister in Queensland, save that he intends to continue as a resident of New South Wales and has not ceased to practise and does not intend to cease to practise as a barrister [of] his State of residence. In these circumstances, it is clear that the court is precluded by a line of decisions from admitting him to practise: Re Sweeney [72] ; Re Holmes [73] ; Re O'Sullivan [74] . Mr. Street applied for special leave to appeal against the order refusing his application but, before that application was heard, the rules relating to the admission of barristers were amended in material respects by the Order in Council of 2 July 1987. The application for special leave was opposed. Mr. Street submits that he had a right to admission which was erroneously refused by the Supreme Court and that that right is unaffected by the subsequent amendment of the rules. Accordingly, if special leave to appeal against the order of the Supreme Court be granted, he seeks an order admitting him to practice as a barrister of that Court. For the reasons stated by each of the Chief Justice, Dawson and McHugh JJ., I agree that the amendment leaves unaffected Mr. Street's claimed right to admission under the rules as they stood prior to the amendment and that it is appropriate to grant him special leave to appeal. 1. [1988] 2 Qd R. 209. 2. [1988] 2 Qd R., at p. 210. 3. [1976] Qd R. 296. 4. [1944] Q.W.N. 33. 5. [1940] Q.W.N. 37.

[12]

Section 117 is expressed to protect the persons whom the section mentions: "A subject of the Queen, resident in any State." It gives no protection to those who are subjects of the Queen but who are not residents in a State; nor does it give protection to those who are residents in a State who are not subjects of the Queen; nor, of course, does it give protection to those who possess neither qualification. Its protection is limited to natural persons (cf. Western & Southern Life Insurance Co. v. Board of Equalization [78] ) and does not appear to extend to subjects of the Queen resident in a Territory: cf. Anderson v. Scholes [79] . Section 117 makes the persons within the class it describes immune from ("shall not be subject to") an impermissible disability or discrimination however imposed. Thus the immunity extends to disability or discrimination arising by exercise of executive or judicial, as well as legislative, power. The section does not purport to restrict the immunity it confers to disability or discrimination imposed directly by a law. An impermissible disability or discrimination may be imposed as well by executive or judicial act as by law. The exercise of an executive discretion against a protected person on the ground that she or he is not a resident in the relevant State ("out-of-State residence") subjects that person to a relevant discrimination. Similarly, it would offend s. 117 for a judge to impose a more severe penalty on an offender who is a protected person merely on the ground of out-of-State residence. Section 117 cuts across the exercise of all governmental power, conferring immunity directly on individuals; their immunity is not a consequence of a limitation on a power. A law which imposes an impermissible disability or discrimination on a protected person is not invalid; it remains in full force and, except in relation to protected persons, in full effect. Uniquely in the Constitution, s. 117 carves out an area of personal immunity which cannot be breached by law, executive action or judicial order. It is a constitutional guarantee to each person within the protected class that no law or act of government will subject her or him to a certain kind of disability or discrimination. The difficulty in construing s. 117 is to identify the kind of disability or discrimination which falls within the guarantee and thus to define the area of immunity enjoyed by each subject of the Queen resident in a State.

[20]

The descriptive clause in s. 117 does not directly identify the comparison which "discrimination" imports. Strictly speaking, to say of discrimination that a protected person would not be equally subjected to it if that person were a resident in another State says nothing directly about the comparison which might establish discrimination. Discrimination against a person is not established by showing that that person is treated differently in different situations. Nevertheless, the comparison needed to establish discrimination in the relevant sense must correspond with the qualification which the descriptive clause applies to "disability". Just as it is necessary to compare the position of a protected person who is subjected to a disability with her or his position if she or he were resident in the State in which the disability applies in order to determine whether the disability attracts the operation of s. 117, so it is necessary to compare the position of the protected person (who, ex hypothesi, is not resident in the State in which the discrimination applies) with the position of another notional person who, though resident in that State, is otherwise in the same position as the protected person in order to determine whether the discrimination attracts the operation of s. 117. Such a comparison is required because s. 117 is concerned only with discrimination to which the protected person would not be "equally" subject if that person were a resident in the relevant State. To apply that test, the notional person must be in the same position as the protected person in all respects save residence in the relevant State. Subject to an exception of necessity, presently to be examined, when a law or governmental act withholds a benefit from a subject of the Queen resident in another State or imposes a burden on that person which would not be withheld from or imposed on an in-State resident in the same position as the protected person, discrimination is established for the purposes of s. 117.

[29]

It follows that, when a condition on obtaining a benefit or avoiding a burden is so expressed that protected persons are naturally or ordinarily disadvantaged in complying with it because they do not reside in the State, s. 117 may relieve a protected person from compliance with the condition in part or in whole. On the other hand, if there is a rational and proportionate connexion between the condition and some objective other than the subjecting of protected persons to different treatment because they are out-of-State residents, s. 117 does not apply. If there be such a connexion, there is no discrimination within s. 117; if there be no such connexion, there is discrimination within s. 117. Take, for example, the familiar requirement that a licensed victualler reside on the licensed premises. Although residence on the premises is a condition which would be naturally more difficult or burdensome (indeed, which would be impossible) for a person who resides out of the State to comply with, it is a condition which has a rational and proportionate connexion with supervision of licensed premises. Section 117 is not attracted by such a requirement. There will often be room for disagreement about the existence of discrimination within s. 117 when a condition is not stated in terms of out-of-State residence but in terms which are a natural or ordinary concomitant of that ground and where it is sought to justify the condition as having a rational and proportionate connexion with some legitimate objective. An examination of such a connexion is not an inquiry into the motives or intentions of the legislature or governmental authority which seeks to apply the condition. A connexion, if any, is to be found by reference to the effect which application of the condition would naturally or ordinarily achieve and the significance of the objective to the entire scheme or activity affected by the condition. Of course, a distinction between a legitimate objective and the impermissible objective of subjecting protected persons to different treatment on the ground of out-of-State residence is not always easy to draw where the relevant law or governmental act relates to some scheme or activity which is located within the State. But it must be remembered that s. 117 is concerned not with the locality of schemes or activities but with the terms on which out-of-State residents may, if they choose, participate in them.

[33]

The s. 117 guarantee of equality of treatment is not expressed to be subject to any qualification or exception. Nor is there any firm constitutional foothold for an implication that s. 117 should be read down to permit discrimination in favour of in-State residents in order to foster local sentiment or to advance local interests. Yet it is clear that there must be some exception to a general application of its terms. Section 117 is drawn on the assumption that out-of-State residence can never be a ground for denying to a protected person any right to which that person would be entitled if she or he were resident in the relevant State. Yet s. 7 of the Constitution demonstrates that the assumption is ill-founded: a subject of the Queen, resident in one State, must be denied a vote for the senators for another State voting as one electorate. In my opinion, the guarantee of equality of treatment is qualified only by necessary implication from the Constitution itself. No such necessity can be found in the constitutional conferring of powers on the institutions of government or in the constitutional recognition of the powers of government. Although governments (in each of their branches) may exercise their powers as they see fit within the limits of the law, the very purpose of s. 117 is to ensure - and in terms it ensures - that the exercise of power by the institutions of government is ineffective when it reaches the borders of the Alsatia created by s. 117. The necessity to treat a protected person differently on the ground of out-of-State residence must therefore be found not in the powers vested in the institutions of government but in the existence of those institutions and in the protection of their functions. The necessity to preserve the institutions of government and their ability to function is an unspoken premise of all constitutional interpretation (see The Commonwealth v. Tasmania; The Tasmanian Dam Case [94] ) for it is the necessity to preserve the Constitution itself. But that necessity does not require or authorize a qualification of the constitutional text in order to maintain what might be thought to be a convenient fund of power or a desirable distribution of power. Nothing less than the need to preserve the institutions of government and their ability to function can justify the erection by a government of a barrier to the legal and social unity of the Australian people.

[39]

At least prima facie therefore being a resident of another State must be made by the law the basis of the imposition or creation of the disability or discrimination. But, of course, the necessary direct effect of the operation of a statute or statutory provision according to its true construction must be regarded in considering whether the law does make residence out of the State a criterion of its operation. Here, quite clearly in my opinion, the rules do not in terms make the fact of being an out-of-State resident the basis of their operation. Menzies J. said [6] : It is only laws effecting a disability or discrimination upon or against a person resident in one State by reason only of his non-residence in another State that are condemned by s. 117. That is the decision in Davies and Jones v. Western Australia [8] . Whether the rules operate to impose such a disability or discrimination is the inquiry here. Gibbs J. said [9] : 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 [10] , per Barton J., and per O'Connor J. [11] . 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 [12] , 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). The decision in Davies and Jones v. Western Australia, on which all of their Honours relied, was founded on the view summed up by Barton J. [13] in a sentence cited by Barwick C.J. [14] : "It is discrimination on the sole ground of residence outside the legislating State that the Constitution aims at in the 117th section". To rebut the argument that the residential requirement of the South Australian Rules did discriminate on the ground of out-of-State residence, their Honours were concerned to show out-of-State residence meant a more or less permanent residence out of the State and that applicant out-of-State practitioners who wished to remain out-of-State residents could comply with the requirement of temporary in-State residence. That rebuttal is not open in this case where the 1975 rules prior to their amendment refused admission to suitably qualified New South Wales barristers who declined to abandon their residences and practices in that State. Under those rules, out-of-State residence is the stated ground of discrimination whereby suitably qualified New South Wales barristers were refused admission to practise in Queensland. Even if Henry v. Boehm were followed, the ground of discrimination contained in the 1975 rules prior to their amendment would properly be identified as out-of-State residence so that s. 117 would be attracted. There was nothing to suggest that there was any rational and proportionate connexion between the requirement of permanent residence in Queensland on the one hand and suitability for admission to practise in Queensland on the other. 1. (1973) 128 C.L.R. 482. 2. (1973) 128 C.L.R., at p. 489. 3. (1973) 128 C.L.R., at p. 490. 4. (1973) 128 C.L.R., at p. 493. 5. (1973) 128 C.L.R., at p. 498. 6. (1973) 128 C.L.R., at p. 489. 7. (1973) 128 C.L.R., at p. 493. 8. (1904) 2 C.L.R. 29. 9. (1973) 128 C.L.R., at p. 496. 10. (1904) 2 C.L.R., at p. 47. 11. (1904) 2 C.L.R., at p. 49. 12. (1904) 2 C.L.R., at p. 53. 13. (1904) 2 C.L.R., at p. 47. 14. (1973) 128 C.L.R., at p. 488.

[45]

No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court. Though adopting this approach, I am satisfied that I should give effect to the construction which I would hold the text of s. 117 demands. There are three considerations which lead to this conclusion: first, if discrimination in s. 117 were not to extend beyond the imposition of a legal disability or liability on the express ground of out-of-State residence and to encompass the discriminatory impact of a law or governmental act on a protected person, s. 117 would be a shell without substance and its protection would be illusory. By narrowing the connotation of "discrimination" to formal discrimination, the reasons for decision of the majority fail to accord to the text of s. 117 its full meaning and deprive that section of its capacity to establish and maintain equality of treatment in each State of the subjects of the Queen resident in every State. The second consideration which leads me to refuse to follow Henry v. Boehm is that the developments of the law since that decision have given us new insights into the law of discrimination and those insights reveal shortcomings in the reasons of the majority. To adhere to Henry v. Boehm would be to fossilize s. 117 while the general law of discrimination continues to develop. The third consideration is that the doctrine of stare decisis, never conclusive in determining the true construction of the Constitution, is least cogent in its application to those few provisions which are calculated to protect human rights and fundamental freedoms (to use contemporary nomenclature), notably ss. 92 (freedom of intercourse), 116 and 117. Giving the majority judgments in Henry v. Boehm the great respect which they command both as a considered authority of this Court and as the writings of some of its most distinguished jurists, I am unable to accommodate their Honours' approach to s. 117 to its text and purpose. I am unable to regard Henry v. Boehm as an authority which ought to be maintained. 1. (1977) 139 C.L.R. 585, at p. 599.

[62]

Likewise, the decisions of this Court on s. 117 of the Constitution represent, while they stand, a triumph of form over substance. In Davies and Jones v. Western Australia [26] , it was held that the section's guarantee that a resident of a State shall not be subject in another State to any disability or discrimination "which would not be equally applicable to him" if he were resident in that State is not infringed if the discrimination or disability is the result of a failure to satisfy a dual requirement of residence and domicile. A discrimination based on "domicile" was not, so it was said, within the purview of the section and the protection of the section only applied in relation to discrimination or disability based solely on residence (see per Barton J. [27] and per O'Connor J. [28] ). In Henry v. Boehm [29] , it was held by a majority of the Court (Barwick C.J., McTiernan, Menzies and Gibbs JJ.; Stephen J. dissenting) that a requirement of the South Australian Rules of Court that an applicant for admission as a legal practitioner "reside in the State continuously" for three months preceding the filing of his notice of application and for a further twelve months between conditional and absolute admission did not infringe the section's guarantee for the reason that it applied indifferently to both residents and non-residents of South Australia. The fact that the Rules went on to provide that the particular residential requirements did not apply at all to an applicant who satisfied the Board of Examiners "that he ordinarily resides in and is domiciled in this State" did not affect the position since the inclusion of the requirement of domicile meant that any discrimination or disability was not "made by the rules on the basis of residence alone" (per Barwick C.J. [30] ). Upon analysis, the two decisions stand as authority for the proposition that, putting to one side the case of a merely colourable attempt to avoid the operation of the section, a law will contravene s. 117 only if it imposes a disability or discrimination which is based solely on the precise "ground" or "basis" that the person in question is not "resident" in the relevant State in the particular sense of having a degree of permanency of residence there (see, e.g.,Davies and Jones v. Western Australia [31] ; Henry v. Boehm [32] ). That being so, discrimination or disability based on domicile or mere temporary residence is outside the scope of the section notwithstanding that permanent residence will ordinarily be determinative of domicile and temporary residence will commonly be an incident of permanent residence. Henry v. Boehm is also authority for the general proposition that the question whether a disability or discrimination is based solely on non-residence in the relevant sense falls to be determined by reference to the formal operation of the impugned law and not its substantive effect (see per Barwick C.J., with whom McTiernan J. agreed [33] and per Menzies J. [34] ). Indeed, the effect of the majority judgments in the case seems to me to be to substitute yet another formularized formal criterion of operation for the words of the Constitution. Thus Barwick C.J. commented [33] :

[69]

It is true that the example in the above passage is necessarily hypothetical in that, while the notion of residence is a complex one, it is not one which can be subdivided, in the abstract, into a number of discrete, necessary and sufficient elements or factors. Regardless of the precise meaning which one gives to the word "resident" in s. 117, the relative importance, and even the identity, of the factors which are determinative of whether a particular person is or is not resident in a particular State are likely to vary from case to case. So to say does not, however, undermine the relevance of the example. To the contrary, it serves to underline the artificiality and unacceptability of any attempt to displace the comparison which s. 117 requires to be made between the actual position of the particular non-resident and the position in which he or she would have been if he or she were a resident by a formula which ignores the position of the affected person and focuses solely on the formal operation of the impugned law. Even though it is not possible precisely to identify in the abstract a number of necessary and sufficient elements of the notion of being a resident for the purposes of s. 117, it is apparent that a formula which precludes the applicability of s. 117 in any case where the law is not based solely on the comprehensive notion of non-residence or residence will fail to reflect the plain meaning of the words of the section. If, for example, the discrimination or disability to which a particular non-resident was subjected was based on the "absence of any connexion" with the legislating State, it would not be based solely on non-residence. Nonetheless, such a discrimination or disability would plainly satisfy the requirement of the section that it be one "which would not be equally applicable to" the affected non-resident if he or she were a resident of that State. It may be arguable that this inadequacy of the "sole basis" formula could be overcome by a reformulation which widened the proscribed basis of discrimination or disability so that it included, in addition to non-residence, the absence of any attribute or incident of residence. Any such reformulation would not, however, overcome a more general objection to the substitution, for the words of s. 117, of a formula which pays regard only to the formal operation of an impugned law.

[70]

It is a long-settled general principle of construction that the provisions of a national constitution must be broadly interpreted and applied: their substance should not be confounded by narrow technicality or legalism (see, e.g., Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [42] ; Reg. v. Coldham; Ex parte Australian Social Welfare Union [43] ). In particular, a constitutional guarantee, such as that contained in s. 117, calls for "a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms referred to" (Minister of Home Affairs v. Fisher [44] ; and see, also, Maneka Gandhi v. Union of India [45] ; Hunter v. Southam Inc. [46] ). A "close and literal construction deprives [such guarantees] of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance" (Boyd v. United States [47] ; Byars v. United States [48] ). That general principle of construction precludes the substitution of a rigid and artificial formula for a constitutional provision such as s. 117 and requires that regard be had to substance rather than mere form both in the construction of such a provision and in its application to the facts of a particular case. If authority in this Court be required for that last-mentioned proposition, the above-mentioned cases of Cole v. Whitfield [49] and Philip Morris Ltd. v. Commissioner of Business Franchises [50] supply it. In my view, neither the "sole basis" formula nor the disregard of substance which it involves should be allowed to survive those two cases. To the contrary, the provision of s. 117 should, in accordance with settled principle, "be construed with all the generality which the words used admit" (per Dixon C.J., Kitto, Taylor, Menzies, Windeyer and Owen JJ.,Reg. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. [51] ) and with regard being had to substance rather than mere form. That being so, s. 117 protects a non-resident from being subjected to disability or discrimination of the type to which it refers regardless of whether the disability or discrimination is directly imposed or is the indirect result of the operation of the relevant legislative provisions (e.g. the confinement of a benefit or advantage to a class which excludes a non-resident). If the substance of what is involved is disability or discrimination of the type referred to in s. 117, mere differences in the form of the relevant legislation will not be effective to take it beyond the reach of the constitutional guarantee.

[72]

The words of s. 117 must, of course, be construed in their context in a constitution which is founded upon the existence of the various States as distinct entities under the federation. So construed, s. 117 does not require that no distinction at all be drawn in a State between non-resident and resident. Section 117 only applies when a non-resident is "subject to disability or discrimination". Those words, construed in their constitutional context, convey the notion of some superimposed incapacity or disadvantage in the sense that the incapacity or disadvantage, regardless of whether it be direct or indirect, does not flow naturally from the structure of the particular State, the limited scope of its legislative powers or the nature of the particular right, privilege, immunity or other advantage or power to which it relates. Thus, a provision in a State constitution conferring particular voting rights in State elections upon residents of the State as a whole or upon persons resident in particular electorates in the State will have the effect of precluding non-residents from voting. The incapacity of the non-resident to vote flows, however, not from some superimposed disqualification or qualification but from the nature of the franchise in a political system based, to a significant extent, on residential divisions and representation. A similar comment could be made of a federal law precluding a person resident in Victoria who happened to be present in New South Wales from voting in the election of New South Wales senators. Again, State financial assistance to a particular class of its residents (e.g. a rental subsidy to disadvantaged tenants) could place an ineligible visitor who was resident (and a tenant) in another State at a comparable disadvantage if that other State provided no such subsidy. The disadvantage would, however, not flow from the subjection of the non-resident to a disability or discrimination. It would flow naturally from the nature of the subsidy and the scope of State powers and responsibility under the constitutional division of governmental authority. Yet again, a requirement that a person who lacks the requisite intrastate qualifications have certain extrastate qualifications or be subjected to some scrutiny of competence before holding himself or herself out as qualified and competent to carry on practice as a medical practitioner or a solicitor or barrister in a State will not involve subjecting a non-resident to disability or discrimination for the purposes of s. 117 if the requisite qualifications or scrutiny represent no more than regulation of a kind necessary to protect the public. Such regulation flows naturally from what is involved in the practice of medicine or law and the obvious need to protect the public from unqualified and incompetent practitioners.

[73]

Apart from the phrase "subject to any disability or discrimination", the aspect of s. 117 which is most likely to give rise to difficulty in the construction and application of the section is the descriptive phrase "which would not be equally applicable to him if he were a subject of the Queen resident in such other State." Even if one accepts the view of the majority in Henry v. Boehm (see, per Barwick C.J. [52] ; per Gibbs J. [53] ) that the word "resident" in s. 117 is used in the particular sense of connoting an idea of permanence, that descriptive phrase will plainly have a distributive operation in that it will encompass not only those cases where the relevant legislative qualification or disqualification is residence or non-residence in that sense but also those cases where, regardless of the form of the legislation, a non-resident is made subject to a relevant disability or discrimination which would not, as a matter of substance, be "equally applicable" to the person affected if he were a resident. In that regard, the significance of the word "equally" in s. 117 should not be ignored or discounted. Thus, for example, a State law which subjects persons who do not satisfy a requirement that they be present in the State for a continuous period of three months to some "disability" or "discrimination" (i.e. within the meaning of those words as used in s. 117) might be said to make "no distinction between" residents (in the sense of permanent residents) and non-residents (see Henry v. Boehm [54] ). It could not, however, properly be said that, as a matter of substance, the actual disability or discrimination to which such a law subjects a particular non-resident who was, during the relevant period, present in his home State would have been "equally applicable" to him if he were a resident of the first-mentioned State. In so far as such a non-resident is concerned, the law subjects him to a disability or discrimination as a consequence of his having been present at the place where he permanently resides. If he were a resident, his continuous presence at the place where he permanently resides would have protected him from, rather than subjected him to, that disability or discrimination. Similarly, a law which subjects a non-resident to a "disability" or "discrimination" if he has failed to carry on business principally within the particular State for a particular period cannot properly be seen as subjecting the particular non-resident trader to a disability or discrimination which would be "equally applicable" to him if he were a resident. In so far as a trader who carries on business principally in his home State is concerned, such a law will subject him to the particular disability or discrimination if, and only if, he is not resident in the particular State.

[157]

Once s. 117 is seen as a constitutional guarantee of equal rights for all citizens, there is little justification for giving the terms "disability" and "discrimination" some narrow or technical meaning, particularly as the section is "broad and general in its terms": see Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [9] , per O'Connor J. No definition is required and none is likely to prove satisfactory for all circumstances. "Disability" has about it the notion of incapacity, whether to acquire a position, qualification, right or privilege, though that is not to say that its meaning is necessarily so confined. "Discrimination" ordinarily suggests a detriment to a person not borne by other members of the relevant community or group; again, no definition is thereby intended. It may be easier to conclude that the effect of a law is to subject a person to a disability than to conclude that its effect is to subject him or her to a discrimination for, in the latter case, problems may arise in identifying the group with which the comparison is to be made. In the case of s. 117, the basis of comparison is marked out so that one can ask (in the case of alleged disability) whether an interstate resident suffers an incapacity to acquire a relevant position, qualification, right or privilege that the person would not be equally subject to if resident intrastate. And (in the case of alleged discrimination) one can ask whether an interstate resident suffers a detriment or disadvantage that he or she would not equally suffer if resident intrastate. It must be kept in mind, however, that the comparison to be made is not with other residents; the comparison is with reference to the individual in question so that what the section is concerned with is differences that appear once that comparison is made. They are differences that relate to the individual in the particular situations of which the section speaks, not differences relating to the individual as compared with some group to which he or she may or may not belong. Not all differences that become apparent through such a comparison will constitute a disability or discrimination for the purposes of s. 117; more will be said of this later.

[169]

If this were so then the making of the relevant comparison would not necessarily reveal the imposition upon the plaintiff of any disadvantage imposed by reference to residence because if, for the purpose of that section, the plaintiff were to be thought of as a resident in South Australia that residence would not necessarily produce automatic compliance with the residence requirements of the rules. A resident in South Australia in such a s. 117 sense might in fact frequently be absent from that State for long periods at a time; were he, in those circumstances, required by the rules continuously to reside in that State for the relevant three and twelve months' periods he might be said to be subjected to a disadvantage no less than that suffered by a Victorian resident. It is true that such a transient resident may none the less be regarded as resident in South Australia. But the factual circumstances which may amount to a sufficient nexus to constitute residence in a State are many and varied. It is not to the point to enquire as to the position of other persons resident in South Australia and seeking admission to practice by reason of their admission elsewhere. The comparison required by s. 117 is, as Stephen J. noted [19] , "between the plaintiff's situation as it is in fact and as it would be were he a resident of South Australia" (though in terms of the section, the comparison is between the plaintiff's situation as it is in fact and as it would be were he resident in South Australia). It may be conceded that the need to defer interstate or overseas visits over fifteen months is inconvenient, but it is not equal to the inconvenience consequent upon leaving one's home for that period. It may also be conceded that a requirement of continuous physical presence in a State may prove equally burdensome to a resident who normally spends long periods outside that State, and a person who is resident interstate. But, in the absence of any evidence that Henry had spent long periods out of the State in which he was, in fact, resident, this possibility was not relevant to the comparison called for by s. 117. 1. (1973) 128 C.L.R., at p. 503. 2. (1973) 128 C.L.R., at p. 502.

[273]

But what is "discrimination" for the purpose of s. 117? The concept frequently involves the notion of unjustified differentiation: Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. [4] ; Belgian Linguistic Case [No. 2] [5] ; Simpsons-Sears [6] . On this view a justifiable differentiation which is based on or is the result of interstate residence would not be "discrimination". In s. 117, however, "discrimination" seems to mean the act of distinguishing or treating differently irrespective of whether the distinction or different treatment can be justified. Two considerations point to this conclusion. The first is the presence of the word "disability" which in the context of s. 117 must have the second meaning attributed to it in the Oxford English Dictionary, 2nd ed. (1989): "Incapacity in the eye of the law, or created by the law; a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them; legal disqualification." There is no ground for holding that disability in s. 117 means an "unjustifiable" or "unreasonable" disability. It would be incongruous, therefore, to give discrimination in s. 117 an interpretation which leads to the result that the imposition of differential treatment which is justifiable is outside the section but the imposition of a disability which is justifiable is within the section. Indeed, in many cases a restriction might be classified as both a disability and a discrimination. The presence of "disability" in s. 117, therefore, is a powerful reason for not confining "discrimination" to "unjust", "undue" or "unreasonable" discrimination. Secondly, the term "discrimination" is also used in s. 102 of the Constitution which provides: "The Parliament may forbid, as to the railways, any discrimination by any State if such discrimination is undue and unreasonable " In that context, "discrimination" means differential treatment. This gives some limited support for the proposition that in s. 117 "discrimination" also means differential treatment. Moreover, by s. 51(ii) the Parliament is given power to make laws with respect to "Taxation; but so as not to discriminate between States or parts of States". The Court has held that in that paragraph "discriminate" means "treat differently": Cameron v. Deputy Federal Commissioner of Taxation [7] . Accordingly, in s. 117 "discrimination" should be interpreted to mean differential treatment whether arising from the legal application or the factual impact of the law.

[287]

Further, contrary to the decision in Henry v. Boehm, I think that the plaintiff was subjected to a disability or discrimination on the ground of his Victorian residence. As argument in that case was limited to the application to the plaintiff of s. 27(1), it was unnecessary for the Court to consider the operation of s. 27(2). Accordingly, in the discussion which follows, I deal only with s. 27(1). The reason that the plaintiff could not obtain admission in South Australia was that, without leaving Victoria, he could not establish that he had resided continuously in South Australia for three months. On the assumption that the plaintiff had been continuously resident in Victoria for three months, he was subjected in South Australia to a disability or discrimination (refusal of admission for not continuously residing in South Australia for three months) which would not have been equally applicable to him if he had resided in South Australia. When s. 117 poses the question whether the disability or discrimination would have been equally applicable to him "if he were resident in such other State", the hypothesis of being a resident in that other State must include more than the bare legal conclusion of being a resident in that other State. The hypothesis of being a resident in the other State requires, in my opinion, the transfer of the actual indicia of his interstate residence (e.g. living in a home continuously for many years). The notional change of residence, therefore, requires the notional change of the material facts which make up his interstate residence. To establish that under the South Australian Rules the plaintiff was treated less equally than he would have been if he were a resident of South Australia, it was necessary to show that as a resident of that State he would have fulfilled the requirements of its rules. That required proof that he would have complied with the three-month condition. He would provide that proof by showing that as part of his Victorian residence he had lived there continuously for three months.