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639

THE (LIMITED) SIGNIFICANCE OF THE INDIVIDUAL IN

SECTION 117 STATE RESIDENCE DISCRIMINATION

AMELIA SIMPSON∗

[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 to

s 117 decision-making.]

CONTENTS

I Introduction............................................................................................................. 639 II The Nature of the s 117 Non-Discrimination Rule...................................... ........... 641

A Drafting and Early Interpretation ............................................................... 641 B The Great Leap Forward: Street v Queensland Bar Association ............... 643 C Underlying Disagreement: Are Individuals Valued Intrinsically or

Instrumentally?........................................................................................... 644 D Sidestepping the Problem: Case Law since Street ..................................... 649

III The Case for the Federal–Structural View of s 117................................................ 651 A Popular Sovereignty and the Argument Based on Consent........................ 652 B Constitutional Paradigm Shifts, Legitimacy and Consistency................... 657 C Poor Prospects for an Individual Rights View of s 117 ............................. 661

IV The Future Direction of s 117................................................................................. 663 A A Focus on Collective, Federal–Structural Interests.................................. 663 B Seeking Guidance in Comparative Law..................................................... 667

V Conclusion .............................................................................................................. 671

I I NTRODUCTION

The High Court of Australia’s most recent encounter with s 117 of the Consti-

tution — in Sweedman v Transport Accident Commission (‘Sweedman’)1 — did

nothing to resolve the conceptual confusion that the Court introduced into this

area in the landmark case of Street v Queensland Bar Association (‘Street ’).2

∗ BA (Hons), LLB (Hons) (ANU), LLM, JSD (Columbia); Barrister and Solicitor of the HighCourt of Australia; Senior Lecturer, ANU College of Law, The Australian National University.The author thanks Kent Greenawalt, Gerald Neuman, Michael Dorf, Leighton McDonald, JamesStellios, Leslie Zines and two anonymous referees for helpful comments on earlier drafts. Thisarticle forms part of the author’s JSD dissertation at Columbia University School of Law.

1 (2006) 226 CLR 362.2 (1989) 168 CLR 461.

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640 Melbourne University Law Review [Vol 32

This article explores the nature of the fundamental disagreement that permeates

Street and explains how the High Court should resolve that disagreement.

While Street was a revolutionary case, modernising and breathing life into a

previously emaciated corner of the Constitution, the intense contestation of ideas

that took place around the key issues is reflected in seven separate judgments.

Later judicial deliberations and scholarship have understandably approached this

multiplicity of judgments as a minefield to be negotiated with the greatest care. 3

To the extent that s 117 scholarship has engaged with the difficulties inherent

in Street , it has generally focused upon the most obvious locus of disagreement

among the seven judgments: the nature and scope of the exceptions4 to the

operation of s 117.5 This article focuses instead on a different schism, one that is

analytically prior to the concern with exceptions and that goes to the very root of

Australia’s constitutional system.

This prior disagreement relates to the nature and source of the

non-discrimination rule itself. In exploring it, I will employ the distinction

between valuing individual rights intrinsically and valuing them instrumentally.

Essentially, I will contend that some of the judgments delivered in Street view

s 117 as a non-discrimination rule grounded in concern for the individual, thus

valuing the protection of individuals intrinsically. Meanwhile, others understand

the provision in principally instrumental terms, viewing its protection of indi-

viduals as nothing more than a vehicle for securing federal–structural goals.

Those familiar with Australian constitutional law will recognise immediately

that my subject matter here is just one corner of a broader story played out in the

High Court over the last 20 years. That story is the attempt by some judges

during the period of the Mason Court to instil a new understanding of theAustralian constitutional compact, one in which individuals would be a central

concern and the rights of individuals would be accorded intrinsic worth.6 As

others have noted, these efforts were partly leavened by the suggested emergence

of ‘popular sovereignty’ after the Australia Act reforms.7 However, these

developments also involved enthusiasm for progressivist tools of constitutional

interpretation, as well as a revisionist view of constitutional history.8

3 See, eg, the painstaking treatment of the case given by Nettle JA in Transport Accident Commission v Sweedman (2004) 10 VR 31, 56–63.

4 In Part VI, I will question the suitability of the term ‘exceptions’ to describe areas in which thes 117 rule does not operate. However, in spite of its imperfection, the term has been employed inHigh Court judgments and in scholarly commentary on s 117: see, eg, Street (1989) 168 CLR 461, 512 (Brennan J), 584 (McHugh J); Michael Mathieson, ‘Section 117 of the Constitution:

The Unfinished Rehabilitation’ (1999) 27 Federal Law Review 393; Tony Blackshield andGeorge Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 1222. Thus, I will use it as convenient shorthand in the early parts of this article.

5 See, eg, Mathieson, above n 4.6 Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed

(2006).7 See, eg, George Winterton, ‘Popular Sovereignty and Constitutional Continuity’ (1998) 26

Federal Law Review 1.8 See James Stellios, ‘Using Federalism to Protect Political Communication: Implications from

Federal Representative Government’ (2007) 31 Melbourne University Law Review 239.

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2008] The Significance of the Individual in s 117 Discrimination 641

While those efforts have faltered and the ‘new constitutional law’9 has been

rejected in other areas of the High Court’s constitutional jurisprudence, this

resolution has yet to be reached in the s 117 context. Although many would say,

instinctively, that the current Court would reject any footing for s 117 inspired by

individual rights, the Court has been curiously reluctant to confirm this position;

it has passed up two opportunities since Street to clarify the nature of the

provision and remove resulting uncertainties about its application.10 Moreover,

in the most recent case of Sweedman a majority of the Court provided some

nourishment to the position in Street that focused on individual rights, with a

roundabout endorsement of Gaudron J’s views in Street . It may be that

deep-rooted ambiguity in the Street decision has been overlooked, due in part to

the complicating choice of law issues arising in the cases heard since Street .

These have forged unlikely alliances and distracted the Court from the problems

bedevilling its s 117 jurisprudence. In any case, a clean-up of the area is overdue.

This article is organised as follows. In Part II, I explain the Court’s approach to

s 117 both before and after Street , and examine in more detail the reasoning in

that case, drawing out two distinct positions regarding the purpose and nature of

the provision. I then proceed in Part III to explain why an instrumen-

tally-reasoned, federal–structural understanding of s 117 should be favoured for

reasons of constitutional principle and of consistency with other areas of the

Court’s constitutional jurisprudence. Finally, in Part IV, I consider what that

clarification would mean for the application of s 117 in the future as to the kinds

of evidence, reasoning and comparative guidance that will be most relevant to a

s 117 analysis. In concluding, I stress that my position does not amount to a

rejection of the value of deontological constitutional rights, either generally or

specifically in relation to discrimination. Rather, my analysis of s 117 simply

reveals it as an unsuitable repository for that aspiration.

I I THE NATURE OF THE S 11 7 NON-D ISCRIMINATION R ULE

A Drafting and Early Interpretation

Section 117 is unique among the non-discrimination provisions in the Austra-

lian Constitution in that it is directed specifically to the position of individuals. It

provides that:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicableto him if he were a subject of the Queen resident in any other State.

A draft provision widely recognised as the forerunner to s 117 was proposed

by Andrew Inglis Clark and added to the original draft Bill by the drafting

subcommittee of the 1891 Convention. That provision read:

9 Among the first to employ this term in this context was M J Detmold, ‘The New ConstitutionalLaw’ (1994) 16 Sydney Law Review 228.

10 Opportunities were passed up in Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463(‘Goryl ’) and in Sweedman (2006) 226 CLR 362.

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A State shall not make or enforce any law abridging any the [sic] privilege or im-munity of citizens of other States of the Commonwealth, nor shall a State deny toany person, within its jurisdiction, the equal protection of the laws. 11

That draft was inspired by and modelled on two provisions contained in the

United States Constitution — the art IV § 2 ‘Privileges and Immunities Clause’

and the Fourteenth Amendment ‘Equal Protection Clause’.12 However, this

broadly cast protection against discrimination was ultimately rejected in favour

of something much more narrowly focused. The provision was pruned severely

and eventually deleted at the 1898 Melbourne Session of the Convention

Debates, where the present text of s 117 was later adopted. The Debates indicate

that most of the framers accepted the received English wisdom that representa-

tive democracy provided sufficient protection for individuals.13

On the specificquestion of discrimination, a majority of framers at the 1898 Convention were

reluctant to fetter the new states’ capacity to discriminate on the basis of race, as

had been common practice in the pre-Federation colonies.14 It was for this reason

that s 117, as finally adopted, prohibited discrimination on only one ground —

out-of-state residence.

The High Court’s early consideration of s 117 gave the provision a very nar-

row construction. In the first case invoking s 117, Davies v Western Australia,15

the Court upheld an estate tax that applied at a higher rate to beneficiaries not

‘residents of and domiciled in Western Australia’.16 As the criterion of operation

was residence and domicile, rather than residence alone, s 117 was considered

inapplicable. Some 70 years later in Henry v Boehm,17 the Court rejected a s 117

challenge to South Australian Rules of Court that regulated lawyers’ admission

to practice. Applicants previously admitted in another state were required toreside in South Australia for at least three months before filing for admission

there. Such applicants were then granted conditional admission and had to reside

in South Australia for a further 12 months in order to qualify for absolute

admission.18 These rules were challenged by a Victorian solicitor seeking

admission in South Australia. A majority of the Court, with only Stephen J

dissenting, found that s 117 was not triggered because the residence requirements

applied equally to residents of South Australia previously admitted elsewhere. It

was this narrow and formalistic interpretation that confronted the Mason Court

when s 117 came before it in Street .

11 Official Report of the National Australasian Convention Debates, Sydney, 9 April 1891, 962.12 See J A La Nauze, The Making of the Australian Constitution (1972) 68, 230; John M Williams,

‘“With Eyes Open”: Andrew Inglis Clark and Our Republican Tradition’ (1995) 23 Federal Law Review 149, 175–6.

13 See George Williams, Human Rights under the Australian Constitution (1999) 39–40.14 Ibid 41–2. 15 (1904) 2 CLR 29.16 Administration Act 1903 (WA) s 86, repealed by Death Duty Assessment Act 1973 (WA) s 3.17 (1973) 128 CLR 482.18 Rules of Court Regulating the Admission of Practitioners 1955–1972 (SA) rr 27(1), 28.

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B The Great Leap Forward: Street v Queensland Bar Association

Street is widely regarded as one the most significant decisions of the Mason

Court. All members of the Court chose to overrule earlier authority, construing

s 117 in a new and more expansive way. The plaintiff, Alexander Whistler Street,

practised as a barrister in several states, though predominantly in NSW. His

application to be admitted to the Queensland Bar was refused because he would

not give an undertaking to relocate his place of residence to that state. The

plaintiff appealed to the High Court, claiming that the relevant Queensland rule

amounted to discrimination on the ground of his out-of-state residence, against

which s 117 of the Constitution protected him. The Court was unanimous in

allowing the appeal, overruling Henry v Boehm and announcing a new set of

principles governing the operation of s 117.19 Although each of the deciding judges wrote separately, all agreed that, as

Mason CJ put it, s 117 ‘renders a disability or discrimination invalid if the

notional fact of residence within the legislating State would effectively remove

the disability or discrimination or substantially deprive it of its onerous nature.’20

As this formulation indicates, there were two key aspects that were common

ground amongst the judgments. First, all judges agreed that s 117 is concerned

with the substantive effect that a law has on out-of-state residents, rather than

merely the legal form in which the relevant restriction is expressed.21 Secondly,

all agreed that the comparison required by s 117 does not look to actual in-state

residents, but rather involves constructing a hypothetical comparator — a

comparison is drawn between the relevant individual, on the one hand, and on

the other hand a hypothetical person sharing all of that individual’s attributes

except for out-of-state residence.22 Each of the judgments delivered in Street conceded that the operation of s 117

is subject to certain limitations; that is, not all instances of state discrimination

against out-of-state residents would be countered by the constitutional immunity.

The right to vote in elections for a state legislature or for state Senate representa-

tives, for instance, was repeatedly noted as a context in which discrimination

against out-of-state residents could not possibly trigger the operation of s 117.23

While views as to the nature and scope of the limitations upon s 117 varied

considerably, it is possible to distil two distinct approaches from the judgments.24

Some explained the limitations as a consequence of federalism, deriving the

limitations by necessary implication from the status of the states as autonomous

political units. Mason CJ, for example, considered that the ‘preservation of the

autonomy of the States demands … the exclusion of out-of-State residents from

19 Street (1989) 168 CLR 461, 481–9 (Mason CJ), 515–19 (Brennan J), 523–33 (Deane J), 543–9(Dawson J), 555–60 (Toohey J), 566–9 (Gaudron J), 579–87 (McHugh J).

20 Ibid 489.21 Ibid 488 (Mason CJ), 506–8 (Brennan J), 526–7 (Deane J), 544–5 (Dawson J), 559 (Toohey J),

568–9 (Gaudron J), 581–2 (McHugh J).22 Ibid 486–7 (Mason CJ), 507 (Brennan J), 526–7 (Deane J), 544–5 (Dawson J), 555 (Toohey J),

566–7 (Gaudron J), 582 (McHugh J).23 Ibid 512–13 (Brennan J), 528 (Deane J), 548 (Dawson J), 570 (Gaudron J). 24 The two approaches were noted by Dawson and Toohey JJ in Goryl (1994) 179 CLR 463, 485.

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the enjoyment of rights naturally and exclusively associated with residence in a

State’.25

The alternative approach involved deriving necessary limitations from the

nature of discrimination as a legal concept. Gaudron J, the clearest exponent of

this approach, said that:

The limits to the protection afforded by s 117 are … to be ascertained by refer-ence to the expression ‘disability or discrimination’ rather than by identifica-tion of interests pertaining to national unity or by reference to the federal objectattending s 117.26

In Gaudron J’s view, the term ‘discrimination’, when used in its legal sense,

describes only those instances of differentiation between different classes or

groups that turn on ‘considerations which are irrelevant to the object to beattained.’27 Accordingly, different treatment that is ‘appropriate to a relevant

difference’ cannot properly be labelled discrimination.28

C Underlying Disagreement: Are Individuals Valued Intrinsically or

Instrumentally?

While the preceding paragraphs provide a broad overview of the decision in

Street , this section focuses on the language employed in individual judgments.

All of the judgments delivered in Street employed, to varying degrees, the

rhetoric of individual rights in building the case for the reinterpretation of s 117.

On one level there was essential unanimity — all seven judges indicated that the

focus of s 117 on individuals provides support for a substance-focused approach

and for the use of a hypothetical comparator, those being the two key planks inthe redefinition of the provision as noted above.

However, a deeper issue is the significant disagreement amongst the judg-

ments regarding the nature and purpose of s 117, and how central individuals are

when a purposive view of the section is taken. Some judges emphasised the

federal–structural imperative that motivated the inclusion of s 117 in the Consti-

tution. They inclined towards a consequentialist mode of reasoning and a view

that s 117 should, first and foremost, be valued instrumentally for its contribu-

tion to sustaining the federal union.29 Other judges placed much greater empha-

25 Street (1989) 168 CLR 461, 492. See also at 528 (Deane J), 583–4 (McHugh J). Toohey J, whilereluctant in this case to give any definite expression to s 117’s limits, did indicate his sympathywith the federalism-based view: at 559–60.

26 Ibid 570. In contrast, McHugh J expressly rejected the definitional basis for limiting s 117’sscope, viewing it as untenable in light of other provisions of the Constitution and the Convention

Debates: at 582–3.27 Ibid 571.28 Ibid. Gaudron J cited voting rights in state elections and receipt of state-funded welfare benefits

as matters which might legitimately be denied to out-of-state residents without activating s 117:at 572. However, she reached these conclusions by application of her ‘relevant difference’ test,rather than by direct reference to the needs and dictates of federalism. This conception of dis-crimination and its employment elsewhere in the High Court’s constitutional jurisprudence isdiscussed in more detail in Amelia Simpson, ‘The High Court’s Conception of Discrimination:Origins, Applications, and Implications’ (2007) 29 Sydney Law Review 263.

29 For consequentialist moral reasoning as a foundation for provisions that protect rights, see, eg,Philip Pettit, ‘The Consequentialist Can Recognise Rights’ (1988) 38 Philosophical Quarterly 42, 43; Kent Greenawalt, ‘Free Speech Justifications’ (1989) 89 Columbia Law Review 119,

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sis on the potential inherent in s 117 to protect individual rights. They revealed a

preference for a deontological mode of reasoning and an intrinsic valuing of the

individual right conferred by that provision.30 These competing perspectives and

their implications will be explored here.

On the instrumental, federal–structural side of the ledger were Mason CJ,

Dawson and McHugh JJ. While each made some reference to s 117 as

rights-conferring, each was also quick to emphasise that the Constitution’s

conferral of these rights represents a device to secure a federal–structural goal.

Mason CJ insisted that s 117 ‘must be understood as providing protection in

relation to rights generally … [but] that protection should be seen as serving the

object of nationhood and national unity.’31 It was this object, and nothing further,

that informed and underpinned Mason CJ’s understanding of the provision’s

outer limits. He said that ‘allow[ing] the section an unlimited scope would give it

a reach extending beyond the object which it was designed to serve’.32

Similarly, Dawson J maintained that ‘the fundamental purpose of s 117 is … a

federal one’.33 For him, limitations upon the reach of s 117 were geared to

ensuring that that provision was ‘applied in such a way as to avoid exceeding its

evident purpose.’34 McHugh J likewise accepted that ‘[t]he object of s 117 was

to make federation fully effective’ and so he too conceived any exceptions as

deductions from the ‘“structural logic” of the Constitution’.35 To be sure, the

judgments of Mason CJ, Dawson and McHugh JJ were not entirely devoid of

discourse relating to rights and, in particular, they did not deny that there is

intrinsic worth in protecting out-of-state residents from discrimination. However,

their references to the protection of individuals by s 117 appear mostly geared

towards justifying their preference for a substantive interpretation, overruling theform-based interpretation that dominated earlier cases.36

Thus, while Mason CJ, Dawson and McHugh JJ all gave an expanded meaning

and operation to s 117, they did so out of fidelity to a particular notion of the

provision’s purpose. For these judges, expanding the reach of s 117 would better

serve the purpose of fostering a sense of national unity within the federal system.

In contrast, the other members of the Court — Brennan, Deane, Toohey and

Gaudron JJ — seemed to envisage a further rationale, of equal or greater

importance, for bringing change to s 117. Though writing separately, they all

arrived at the view that the protection of individuals from discrimination, for its

own sake, represents the ultimate rationale for the provision.

127–8. Others have employed the language of ‘goal-based’ theories: see Jeremy Waldron, ‘In-troduction’ in Jeremy Waldron (ed), Theories of Rights (1984) 1, 13–14.

30 For exploration of deontological moral reasoning as a basis for provisions that protect individualrights, see, eg, Philip Pettit, ‘Rights, Constraints and Trumps’ (1987) 47 Analysis 8; RonaldDworkin, Taking Rights Seriously (1978) 90–100; Robert Nozick, Anarchy, State, and Utopia (1974) ch 3; Charles Fried, Right and Wrong (1978) 81.

31 Street (1989) 168 CLR 461, 491.32 Ibid.33 Ibid 541.34 Ibid 548. This meant, in turn, that those outer limits were incapable of ‘precise expression’.35 Ibid 583.36 Ibid 489 (Mason CJ), 541 (Dawson), 588 (McHugh J).

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Moving towards this position required some fancy interpretative footwork. In

particular, those judges favouring the rights-protective vision had to contend

with an argument put most clearly by McHugh J — that not only the history of

s 117, but also its text, militate against a view of s 117 as granting an individual

right to be valued intrinsically.37 According to McHugh J, had the Constitution’s

framers wished to protect individuals from discrimination on the theory that such

discrimination is dehumanising and inherently wrong, they would surely not

have confined the operation of s 117 to discrimination based on state of resi-

dence. Rather, they would have wanted to prevent state governments from

discriminatory treatment of their own residents. For McHugh J, the illogicality of

an intrinsically valued protection only for out-of-state residents meant that, even

without resort to history, the instrumental, federal–structural account of s 117

could not be denied.38

Toohey J mounted a high-stakes response to this challenge laid down in

McHugh J’s judgment. That s 117 does not intrude into states’ treatment of their

own residents was not, in Toohey J’s view, an indication that the provision does

not have the protection of individuals for its own sake as its primary end.39 He

insisted that the initial draft of the provision was indeed so grounded and that

later revisions, while narrowing the scope of that individual rights protection,

must not be seen as having transformed its very nature.40 The fact that Toohey J

was alone in this endeavour — that is, in attempting to harness history to sustain

a reading of s 117 that is inspired by individual rights — reflects the long bow he

was drawing in doing so. It is a hard position to defend when consideration is

given to the entirety of the historical evidence, which reveals little support for

the original vision of the provision as proposed by Andrew Inglis Clark.41

WhileToohey J’s approach is testament to the influence of history-driven analysis in

Australian constitutional law, he might nevertheless have made a more persua-

sive case for his preferred reading of s 117 had he instead downplayed the role of

history as an interpretative tool.

Such downplaying was notable in the reasoning of other judges who saw

intrinsic valuing of individuals as the heart of s 117. The most persuasively

crafted of these judgments came from Gaudron J. In her view, there was no need

to review constitutional history in order to construe s 117 because ‘the words of

s 117 themselves indicate its purpose and effect’.42 This focus on the text

allowed Gaudron J to contend that the limits of s 117 are ‘to be ascertained by

reference to the expression “disability or discrimination” rather than by identifi-

cation of interests pertaining to national unity or by reference to the federal

object attending s 117.’43

In elaborating on the modern legal conception of discrimination, in which ‘discrimination is confined to different treatment that is

37 Ibid 583.38 Ibid.39 Ibid 553.40 Ibid 553–4, 559–60.41 See, eg, La Nauze, above n 12, 229–30; John Williams, above n 12, 177–8. 42 Street (1989) 168 CLR 461, 570.43 Ibid.

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not appropriate to a relevant difference’, Gaudron J invoked the jurisprudence of

the International Court of Justice and the European Court of Justice.44

While left unstated, the interpretative manoeuvre that allowed Gaudron J to

avoid the conclusion reached by McHugh J is key to her approach. Given a

choice between a historically informed interpretation of s 117 and one informed

by the alternative touchstones of contemporary legal values and/or international

law, Gaudron J favoured the latter. She allowed her view of the meaning and

scope of s 117 to be driven by the appearance of the term ‘discrimination’ — a

vessel into which could be poured the modern legal conception of discrimination

— rather than by the provision’s confinement to one limited arena of discrimina-

tion. This choice among interpretative approaches overlays a deeper choice

between interpretations of s 117 that attach intrinsic value to the protection of

individuals, and those that attach instrumental value to such protection. Gaud-

ron J’s awareness of this deeper choice is reflected in her suggestion that s 117

could be read as protecting individuals against not just state action but also the

action of private actors.45

The judgment of Deane J followed a broadly similar approach. For his Honour,

the fact that the Constitution contains other provisions seeming to ‘serve the

function of advancing or protecting the liberty, the dignity or the equality of the

citizen’ furnished a reason to view s 117 through a rights-protective prism.46 One

telling reflection upon Deane J’s interpretative philosophy and priorities was his

reliance on comparative constitutional jurisprudence to insist that constitutional

guarantees protecting fundamental rights (among which he counted s 117)

deserve a broad and generous construction.47 The cases he cited in support of this

proposition were, unsurprisingly, ones in which the relevant rights were acceptedas having a principally intrinsic value and were elaborated within a framework of

reasoning focused on individual rights.48

Brennan J’s judgment exhibited the greatest indecision in relation to the nature

of s 117. He appeared undecided between a rights-driven vision of s 117 and a

federal–structural one — or at least he appeared hopeful that both views might

be sustained at once. In particular, Brennan J sent mixed messages about the

object of s 117. Towards the beginning of his judgment he stated that the ‘object

of s 117 is to secure equal treatment for the individuals whom it protects.’ 49 Later

he declared that s 117 ‘is a guarantee of equal treatment under the law.’50

However, he soon after acknowledged the importance of s 117 in the federal

44

Ibid 571.45 Ibid 568. See also a similar aside by Toohey J: at 552.46 Ibid 522.47 Ibid 527.48 Deane J cited the following cases: Minister of Home Affairs v Fisher [1980] AC 319, 328 (Lord

Wilberforce for the Court); Gandhi v Union of India [1978] AIR (SC) 597; Hunter v Southam Inc [1984] 2 SCR 145, 155–6 (Dickson J); Boyd v United States, 116 US 616, 635 (Bradley J)(1886); Byars v United States, 273 US 28, 32 (Sutherland J for the Court) (1927). All are state-ments regarding the interpretation of constitutional rights conventionally understood as, first andforemost, protective of individual rights and interests.

49 Street (1989) 168 CLR 461, 503.50 Ibid 512.

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design, calling it ‘a fundamental feature of the federation.’51 Perhaps the most

telling comment in Brennan J’s judgment in terms of his position on the nature of

s 117 was his observation that ‘the notion of discrimination in s 117 has more

conceptual affinity to the [United States Constitution’s] 14th Amendment than to

the [art IV § 2] Privileges and Immunities clause.’52 It is difficult to imagine

Brennan J drawing this analogy if he did not see s 117 as a provision attaching

intrinsic value to the protection of individuals.

Even with their emphasis on the protection of rights, none of these judgments

went so far as to view the protection conferred by s 117 as absolute. Rather, each

acknowledged that the demands of federalism would place some limits on the

degree of protection that the provision offered to out-of-state residents. For

Gaudron and Deane JJ, this was simply a specific application of a general feature

of the legal notion of discrimination. As Deane J put it, the concept of discrimi-

nation did not include the sorts of readily justifiable differentiations that ‘flow

naturally from the structure of the particular State’53 or from ‘the scope of State

powers and responsibility under the constitutional division of governmental

authority’,54 such as the right to vote in state elections or eligibility for state

welfare benefits.55 Brennan J too seemed sympathetic to this analysis, even

while formulating a narrow ‘exception of necessity’ grounded in

federal–structural considerations.56 It is important to realise, however, that the

acceptance by these judges of limitations upon the reach of s 117, however

derived, does not compromise or disprove their attachment to a view of s 117 as

a provision intrinsically concerned with the protection of individuals.57

This closer examination of the judgments in Street reveals that the disagree-

ment among them lies not only in the way that the so-called ‘exceptions’ to s 117are defined, as is often assumed.58 Rather, the major fault line is the underlying

division between two alternate conceptions of the purpose and value of s 117. On

the one hand, there are those judges who prefer to understand s 117 as a right to

be valued, instrumentally, for its securing of federal–structural objectives. On the

other hand, there are the judges for whom s 117 declares a right with intrinsic

value and is principally about the individuals that it protects. The decision in

Street strikes, at best, an uneasy truce between the demands of s 117’s textual

focus upon individuals and the traces of a federal–structural purpose in the

provision’s context and history. More recent High Court cases dealing with s 117

have sidestepped this uncertainty at the core of the new doctrine. It is to these

more recent cases that I will now turn.

51 Ibid.52 Ibid 514.53 Ibid 528.54 Ibid 529.55 Ibid 528–9.56 Ibid 512–14.57 See Frederick Schauer, ‘A Comment on the Structure of Rights’ (1993) 27 Georgia Law Review

415, 426–30.58 See, eg, George Williams, above n 13, 125–6; Mathieson, above n 4.

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D Sidestepping the Problem: Case Law since Street

Since Street , the High Court has considered s 117 in two cases. While both

cases were complicated by crosscutting choice of law issues, they nevertheless

represent opportunities missed — opportunities, that is, to revisit and resolve the

fundamental disagreement that emerged in Street .

In Goryl v Greyhound Australia Pty Ltd (‘Goryl ’),59 s 117 was applied to

protect a NSW resident from discriminatory arrangements imposed by s 20 of

the Motor Vehicles Insurance Act 1936 (Qld). The plaintiff sued the respondent

for personal injury in a Queensland court. Section 20 limited the plaintiff’s

damages to what she, as a NSW resident, could have recovered in a NSW court,

whereas a Queensland resident could have won higher damages for the same

injuries. The High Court was unanimous in finding that s 117 operated toimmunise the plaintiff against the discrimination. However, the s 117 issue was

to a significant extent overshadowed by the revisiting of an earlier battle over the

correct choice of law principle in the circumstances.60 This preoccupation meant

that the decision contributed very little to resolving the s 117 issues left open in

Street .

The alliances that formed among the judges seemed to be determined by their

respective positions on this choice of law issue, which made for some strange

bedfellows on the s 117 issue. Strangest of all was the joint judgment of Dawson

and Toohey JJ. Their reasons in Goryl , imbued with the rhetoric of federalism,

bore a much closer resemblance to Dawson J’s position in Street than to that of

Toohey J. In particular, they described the object of s 117 as being ‘to foster the

concept of Australian nationhood’, nominating this as the principle that should

guide the Court in mapping the outer limits of the provision’s reach.61 Theymade no mention of the rights-protective potential of s 117 which Toohey J had

focused upon in Street .

The only other judgment in Goryl making reference to the nature and purpose

of s 117 was that of McHugh J. Yet like Toohey J, McHugh J came out with a

statement seemingly at odds with the position he had taken in Street . He called

s 117 ‘a fundamental constitutional guarantee which seeks to preserve equality of

treatment’.62 In Street , however, he had been thoroughly unforgiving of similar

sentiments expressed in other judgments, observing that ‘s 117 was not intended

as a human rights charter for interstate residents.’63 Thus, the Court’s decision in

Goryl served only to deepen the confusion surrounding the nature and purpose of

59 (1994) 179 CLR 463.60 The question of whether and how the Constitution affects choice of law principles divided the

Court in a sequence of cases: Breavington v Godleman (1988) 169 CLR 41; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; Stevens v Head (1993) 176 CLR 433.

61 Goryl (1994) 179 CLR 463, 486.62 Ibid 493. This is not an isolated statement either. McHugh J continues with this rights-protective

emphasis into the heart of his reasoning on the s 117 issue, rejecting any confinement of the provision’s protection by reference to a judicially imposed criterion of reasonableness: at 493–5.

63 Street (1989) 168 CLR 461, 583.

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s 117, with apparent defections from one camp to the other cancelling each other

out.64

Following Goryl , 12 years passed before s 117 again came before the High

Court in Sweedman.65 That case involved a claim that Victorian motor vehicle

accident compensation arrangements discriminated against an out-of-state

resident, whose vehicle was not registered in Victoria and who therefore did not

enjoy a statutory indemnification against recovery proceedings brought by the

Transport Accident Commission. The leading judgment of Nettle JA in the court

below, highlighting the confused state of s 117 jurisprudence, resorted to

extracting tests from each of the seven judgments in Street and applying them all

sequentially.66 Despite this strong indication that clarification was needed, the

High Court’s reasons in Sweedman were disappointing.

As had been the case in Goryl , the Court in Sweedman was preoccupied with

choice of law questions, and s 117 became a secondary focus. The joint judgment

of Gleeson CJ, Gummow, Kirby and Hayne JJ devoted a mere 13 paragraphs to

the s 117 issue — slim pickings for observers seeking guidance on the unan-

swered questions surrounding that provision. The judgment certainly said

nothing explicit regarding an interpretation of the rationale underlying s 117. Its

declared starting point was a search for the ‘discrimen’ by reference to which the

impugned law distinguished those persons who were indemnified from those

who were not.67 The relevant discrimen in this case was found to be the place of

a vehicle’s registration, rather than the place of a person’s residence.68 On this

basis, the joint judgment denied that the differential treatment was ‘attributable

to’69 state of residence. This, in turn, meant that it was ‘unnecessary to con-

sider’70

the nature and scope of exceptions to the reach of s 117.71

The decisionis thus a frustrating, yet all too unremarkable, instance of the Gleeson Court’s

renewed zeal for legalism and characterisation-based resolution of constitutional

questions.72

Nevertheless, the majority joint judgment in Sweedman, while offering no

resolution, did contain an intriguing flirtation with an understanding of s 117 that

was focused on individual rights. There, the idea of exceptions to the reach of

64 That is, if we were tempted to reassign Toohey J to the federal–structural camp based on hischange of rhetoric in Goryl , we would also need to think about reassigning McHugh J as a potential convert to the individual rights-focused view. Such shuffling possibilities serve only toemphasise the fact that Goryl does little to bridge the divide between the two visions of s 117.

65 (2006) 226 CLR 362.66 Transport Accident Commission v Sweedman (2004) 10 VR 31, 57–63 (Nettle JA).67

Sweedman (2006) 226 CLR 362, 409 (Gleeson CJ, Gummow, Kirby and Hayne JJ).68 Ibid.69 Ibid.70 Ibid.71 Ibid 409–10.72 For an endorsement of legalism by the former Chief Justice of Australia, see Murray Gleeson,

The Rule of Law and the Constitution (2000) 85, 97–9. See also Leslie Zines, ‘Legalism, Real-ism and Judicial Rhetoric in Constitutional Law’ (2002) 5 Constitutional Law and Policy Review 21; Haig Patapan, ‘High Court Review 2001: Politics, Legalism and the Gleeson Court’ (2002)37 Australian Journal of Political Science 241, 241–2; Amelia Simpson, ‘Sweedman v Transport Accident Commission: State Residence Discrimination and the High Court’s Retreat into Charac-terisation’ (2006) 34 Federal Law Review 363, 371–2.

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s 117 was articulated in terms inspired by Gaudron J’s reasoning in Street — that

is, as being a question of whether differential treatment of out-of-state residents

was explicable as something ‘appropriate and adapted … to the attainment of a

proper objective.’73 The authority given for that proposition was Permanent

Trustee Australia Ltd v Commissioner of State Revenue (Vic),74 in which the

majority had relied heavily upon Gaudron J’s reasoning in Street in articulating a

constitutional conception of discrimination.75 The current High Court’s invest-

ment in this particular conception of discrimination — a position which I have

discussed in detail elsewhere76 — may, in the s 117 context, lure it towards other

interconnected aspects of Gaudron J’s treatment of that provision. For this

reason, Sweedman may have kept rights-inspired strands or themes alive within

the Court’s s 117 jurisprudence.

However, neither Goryl nor Sweedman clarifies whether s 117 is principally

about protecting individual rights or about safeguarding federal structures. Some

readers may wonder if it actually matters that much. I think that the extent of the

High Court’s reliance upon each of the two competing understandings of s 117

does indeed have practical significance at two levels. Its immediate significance

is that this choice affects the persuasiveness of the Court’s approach in the s 117

context, as I will explain next in Part III. More broadly, the employment of

reasoning focused on individual rights in shaping the meaning and scope of s 117

could serve as a foundation for wider rights-protective constitutional develop-

ments, including the reinterpretation of other provisions and the more extensive

derivation of implied principles.77 While I will not address these broader

implications directly, some of the analysis to follow necessarily bears on them.

III THE CASE FOR THE FEDERAL –STRUCTURAL V IEW OF S 11 7

The analysis in Part II suggests that a majority of the judges in Street attributed

at least some intrinsic value to the s 117 right. In this Part, I consider whether

that attribution was justified. I will articulate what I think to be the main

arguments that these judges could have raised in defence of their interpretative

strategies and explore the soundness of those lines of reasoning.78

The text of s 117 certainly provides a foothold for a rights-focused reading,

being expressed as an individual immunity rather than as a direct limitation on

legislative power.79 Significantly, however, all judges who inclined in this

direction have acknowledged this textual argument to be inconclusive and have

73 Sweedman (2006) 226 CLR 362, 410 (Gleeson CJ, Gummow, Kirby and Hayne JJ).74

(2004) 220 CLR 388, 423–4 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).75 See Simpson, ‘The High Court’s Conception of Discrimination’, above n 28, 274.76 See generally Simpson, ‘The High Court’s Conception of Discrimination’, above n 28.77 The potential for s 117 to provide a foundation stone for this grander project was doubtless a

factor influencing at least some of the judgments in Street : see especially the subsequent joint judgment of Deane and Toohey JJ in Leeth v Commonwealth (1992) 174 CLR 455, 480–94(‘ Leeth’).

78 While others have embarked upon much more detailed evaluation of different interpretativeapproaches in an Australian context, I will go into only so much depth as is necessary to dealwith the specific context of s 117.

79 See, eg, Street (1989) 168 CLR 461, 541 (Dawson J); Goryl (1994) 179 CLR 463, 495(McHugh J).

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sought to bolster it with other interpretative arguments. While Toohey J and, to a

lesser extent, Brennan J made an ostensibly historical argument for a reading of

s 117 that would see it as intrinsically valuing the protection of individuals, I will

leave that to one side as simply untenable (for reasons evident in Part II).80

Rather, I will focus my attention on the more plausible arguments turning on

progressivist interpretative tools which are explained below.

I will examine first whether a progressivist interpretative approach could be

considered a necessary incident of a forward-looking theory of the consent that

underpins the Constitution’s legitimacy. After explaining the weaknesses in this

argument, I will discuss whether, given a full menu of interpretative approaches

to choose from, the choice of a progressivist direction was defensible in Street . I

will conclude that this interpretative move is difficult to defend for reasons

concerned with judicial legitimacy and doctrinal consistency. This Part ends with

a predictive claim: that developments in the High Court’s constitutional jurispru-

dence since Street make it unlikely that it will endorse and retain the

rights-inspired strands within that decision.

A Popular Sovereignty and the Argument Based on Consent

Of the four judgments in Street that I have interpreted as attaching intrinsic

value to the s 117 right, three — those of Brennan, Deane and Gaudron JJ —

arrived at that position through applying a broadly progressivist interpretative

approach; that is, they focused on the potential for the text of s 117 to affirm the

contemporary legal value of non-discrimination, rather than upon historically

informed derivations of purpose.81 If pressed to defend this position, one obvious

option would have been to invoke a contemporaneous legal development — thesuggested birth, or confirmation, of ‘popular sovereignty’ in the Australian

constitutional system, a complex and contested concept to which I will return

shortly.82

The present significance of this suggested feature of our constitutional land-

scape is that it might be viewed as legitimating, or even requiring, a preference

for progressivist interpretative aids and tools. Progressivism is best understood

as an umbrella term for ‘theories of interpretation which depart from originalism

and intentionalism … [in that they] give less emphasis to the constitutional

text.’83 Judges and scholars in Australia and elsewhere have identified and given

support to a range of interpretative aids and tools that could, according to this

understanding, be described as progressivist. Among the most prominent in the

80 As Sir Anthony Mason notes, it is fanciful to contend that ‘delegates who consumed so muchtime discussing particular drafting points would leave the major issue of guarantees of unidenti-fied fundamental or common law rights to be developed as a matter of implication’: Sir AnthonyMason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’ in Charles Samp-ford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 13, 29.

81 Historically informed derivations of purpose lay at the heart of the judgments of Mason CJ,Dawson and McHugh JJ, and also underpinned Toohey J’s very different reasoning.

82 On the complexity and controversy surrounding the concept of popular sovereignty in Australia,see Winterton, ‘Popular Sovereignty’, above n 7.

83 Mason, ‘The Interpretation of a Constitution’, above n 80, 19.

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Australian debate have been considerations of social and economic policy,

suggested contemporary values and norms of international law.84 There is one

common feature of these progressivist interpretative tools that is especially

important to the present discussion, namely, they seem to share a particular

theory of the consent that underpins the Constitution’s legitimacy and authority.

One way in which different approaches to constitutional interpretation may be

categorised is by reference to their position on the ‘consensual aspect’ of

constitutional law.85 This term, which I have borrowed from Gerald Neuman,

captures the insight that different theories of constitutional interpretation may

reflect different understandings of the source and nature of the consent that gives

a constitution its legitimacy.86 So, for instance, adherents of an originalist

interpretative approach would typically locate a constitution’s legitimating

consent in the original adoption of that constitution. This outlook is reflected in

the fact that originalists consider historical records, indicating what a constitu-

tion’s drafters and/or enactors must have intended or understood particular

provisions to mean, to be of primary importance in the interpretative process.

Most important for present purposes, however, are the implications of this

perspective for progressivist interpretative approaches. These approaches might

be assumed to correlate with a forward-looking theory of constitutional consent

that centres on the ongoing acquiescence of present-day legal subjects. Indeed,

such a connection is suggested by the judgments and extra-curial writings of

some members of the High Court.87 An approach to constitutional consent which

views present-day subjects as the people who relevantly accept, and thereby

confirm, a constitution’s authority probably does make best sense of a judicial

preference for progressivist interpretative tools. However, it is important torecognise that the correlation between progressivist tools of interpretation and a

focus on current consent flows more strongly in one direction than in the other.

As I will explain, it is particularly unclear in the case of the Australian Constitu-

84 I will have these most prominent examples in mind when referring to progressivist interpretativetools in this article. On policy and values, see, eg, Sir Anthony Mason, ‘The Role of a Constitu-tional Court in a Federation: A Comparison of the Australian and the United States Experience’(1986) 16 Federal Law Review 1, 5; Justice John Toohey, ‘A Government of Laws, and Not of Men?’ (1993) 4 Public Law Review 158; Leslie Zines, The High Court and the Constitution (4

th ed, 1997) ch 15; Detmold, above n 9; John Braithwaite, ‘Community Values and Australian

Jurisprudence’ (1995) 17 Sydney Law Review 351; Martin Krygier and Arthur Glass, ‘ShakyPremises: Values, Attitudes and the Law’ (1995) 17 Sydney Law Review 385. On internationallaw, see Kartinyeri v Commonwealth (1998) 195 CLR 337, 417–19 (Kirby J); Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 657–61 (Kirby J); Amelia Simpson andGeorge Williams, ‘International Law and Constitutional Interpretation’ (2000) 11 Public Law Review 205; Kristen Walker, ‘International Law as a Tool of Constitutional Interpretation’

(2002) 28 Monash University Law Review 85.85 Gerald L Neuman, ‘Human Rights and Constitutional Rights: Harmony and Dissonance’ (2003)55 Stanford Law Review 1863, 1866. Professor Neuman outlines his schema in the course of examining convergence and divergence between the rights protections found in national consti-tutions and those found in international law. The idea is useful in my analysis here, even absentthe comparative context.

86 Ibid.87 See, eg, Mason, ‘The Interpretation of a Constitution’, above n 80, 23–30; Justice Michael

Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ (2000)24 Melbourne University Law Review 1, 7; Theophanous v Herald & Weekly Times Ltd (1994)182 CLR 104, 171 (Deane J); Kirmani v Captain Cook Cruises Pty Ltd [No 1] (1985) 159 CLR 351, 442 (Deane J); Bistricic v Rokov (1976) 135 CLR 552, 566 (Murphy J).

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tion why a forward-looking understanding of the nature and source of constitu-

tional legitimacy should lend any particular priority to progressivist interpreta-

tive aids such as contemporary values and international law.

The attractiveness of a forward-looking theory of constitutional consent in

Australia received a significant boost from the recognition of ‘popular sover-

eignty’ as a feature of Australia’s constitutional system by several members of

the Mason Court.88 The mainstreaming of this principle seemed to follow closely

on the heels of the Australia Act 1986 (Cth) and complementary legislation in

the Australian states and in the United Kingdom,89 which severed vestigial legal

ties between the institutions of Australian government and those of the UK. This

has been so even while subsequent commentary has doubted the need for any

causal link between the two events.90 While judicial invocations of popular

sovereignty have been criticised as imprecise and ambiguous,91 they do appear to

share a common thread in the acceptance of a forward-looking theory of consent.

In Australian Capital Television Pty Ltd v Commonwealth, Mason CJ declared

the passage of the Australia Act 1986 (UK) as the development which finally

‘marked the end of the legal sovereignty of the Imperial Parliament and recog-

nized that ultimate sovereignty resided in the Australian people.’92 McHugh J

commented along very similar lines in McGinty v Western Australia.93 In

Nationwide News Pty Ltd v Wills, Deane and Toohey JJ declared that ‘the powers

of government belong to, and are derived from … the people’.94 While there has

been no concerted judicial exploration of, and hence no agreement on, the

precise legal consequences of popular sovereignty, the principle nevertheless

seems to have confirmed its place in Australia’s constitutional system. It can at

least be said that the source of the Constitution’s legitimacy lies partly, if notwholly, in the hands of the Australian people.95

88 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 138 (Mason CJ); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 72 (Deane and Toohey JJ); McGinty v West-ern Australia (1996) 186 CLR 140, 230 (McHugh J).

89 Australia Act 1986 (UK) c 2; ‘request and consent’ legislation passed by the state parliaments,such as the Australia Acts (Request) Act 1985 (NSW); Australia (Request and Consent) Act 1985 (Cth).

90 See, eg, Zines, The High Court and the Constitution, above n 84, 395; Winterton, ‘Popular Sovereignty’, above n 7, 9–10.

91 As George Winterton has noted, it is often unclear whether the object of discussion is ‘the sourcefrom which the Constitution derives its authority’ or if it is ‘the location of the power to amendthe Constitution’: Winterton, ‘Popular Sovereignty’, above n 7, 4.

92 (1992) 177 CLR 106, 138.

93 (1996) 186 CLR 140, 230, 237.94 (1992) 177 CLR 1, 72.95 On the idea of a partial acceptance of popular sovereignty, see Winterton, ‘Popular Sovereignty’,

above n 7, 7. Winterton posits a mixed basis for Australian sovereign authority, incorporating theoriginal enactment by the UK Parliament as well as its subsequent retention and acceptance bythe Australian people. See also G J Lindell, ‘Why Is Australia’s Constitution Binding? — TheReasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Federal Law Review 29.

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However, even putting aside the voices of dissent and caution,96 this notion of

popular sovereignty remains problematic as a mandate for a progressivist

interpretative approach in relation to s 117. First, at least two key judicial

supporters of the principle of popular sovereignty viewed the relevant consent

underpinning popular sovereignty as located not entirely in the present. In

Theophanous v Herald & Weekly Times Ltd , Deane J stated that the Constitu-

tion’s legitimacy now ‘lies exclusively in the original adoption (by referenda)

and subsequent maintenance (by acquiescence) of its provisions by the people.’97

Earlier, in Nationwide News Pty Ltd v Wills, Deane and Toohey JJ insisted that

the Constitution conferred powers subject to ‘the fundamental rights and

principles recognized by the common law at the time the Constitution was

adopted’.98 These comments indicate that a forward-looking theory of consent is

not necessarily coextensive with the idea of popular sovereignty as understood in

Australian constitutional law. A conception of popular sovereignty that recog-

nises a historical component to the relevant consent would seem also to invite

attention to historical sources such as the Convention Debates. As explained in

Part I, those Debates, despite Toohey J’s assertions to the contrary, lend scant

support to an interpretation of s 117 grounded in a concern for the individual.

More importantly, however, even if consent were understood to reside entirely

in the present-day populace, there is no reason to assume that these sovereign

citizens would require, or endorse, a constitutional court’s adoption of standard

progressivist interpretative tools in preference to historical sources. In a constitu-

tion that provides explicitly for amendment via popular referendum, it is hard to

contend that judges must prioritise interpretative aids such as contemporary

values and international law in order to be sure that they are giving effect to theconsent of the contemporary populace. The sovereign people could just as easily

endorse and confer legitimacy on a constitution on the understanding that it was

to be interpreted by reference principally to text and history, with a right reserved

to the people to change that text and so rewrite the relevant history. In Australia’s

case, the Constitution, via the s 128 referendum process, gives to the people the

power to make textual amendments.99 While such amendment has been infre-

quent — a total of eight changes have been passed over 100 years from among

44 proposals100 — the symbolism attaching to this process is potent. I do not

96 There has been some judicial dissent from the popular sovereignty viewpoint. In particular,Dawson J maintained in Australian Capital Television Pty Ltd v Commonwealth (1992) 177CLR 106, 181 that the ‘legal foundation of the Australian Constitution is an exercise of sover-eign power by the Imperial Parliament.’ See also the comment of Gleeson CJ, Gummow and

Hayne JJ in Sue v Hill (1999) 199 CLR 462, 494 that Australian sovereignty resides in a ‘consti-tutional monarch’, and discussion of this comment in Michael Wait, ‘The Slumbering Sovereign:Sir Owen Dixon’s Common Law Constitution Revisited’ (2001) 29 Federal Law Review 57. Seealso Winterton, ‘Popular Sovereignty’, above n 7; Lindell, above n 95.

97 (1994) 182 CLR 104, 171.98 (1992) 177 CLR 1, 69.99 The argument for popular control would be an easier one to make if the Australian Constitution

provided for citizen-initiated constitutional referendums. Nevertheless, it remains true that themechanism provided in s 128 provides significant control to the people given that it is their elected representatives who carry responsibility for initiating amendment proposals.

100 Australian Electoral Commission, Referendum Dates and Results 1906 – Present (9 August2007) <http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm>.

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mean to suggest that this feature of Australia’s Constitution rules out a role for

judicially-instigated modernisation of constitutional principles and norms. What

it does suggest, however, is that such judge-led change fits within this schema

most comfortably when understood as an exercise in refinement rather than

major overhaul.

Attention to the proper institutional role of courts also assists in navigating

through another potential argument for the unavoidability of modern discrimina-

tion jurisprudence in interpreting s 117. It might be argued that the framers had

only an inchoate understanding of what they meant by ‘discrimination’. Accord-

ingly, it could be argued that this inchoate understanding must of necessity be

supplemented with insights and refinements that have grown within the law in

the meantime. Such an argument might find expression in the distinction

between concepts and conceptions that was developed by McHugh J, borrowing

from Ronald Dworkin, in Re Wakim; Ex parte McNally.101 Indeed, there is much

about modern discrimination jurisprudence that could legitimately be, and has

been, drawn into the constitutional realm in Australia via this mode of reason-

ing.102 For instance, the emergence of a preference for attention to substance

over form in discrimination analysis and its having been picked up in constitu-

tional contexts is, I think, an entirely acceptable and desirable development. Yet I

do not think that an understanding of the fundamental purpose of a discrimina-

tion norm — that is, whether the provision is intrinsically concerned with

individuals or rather with federal–structural, collective interests — can be

transformed in the same way. There are much more serious democratic objec-

tions in the latter case. This seems borne out in the example set by other liberal

democracies — at least those sharing Australia’s common law roots — in which

constitutional law has been reconstructed atop rights-protective foundations. In

all such cases, it has been the sovereign people, whether or not through the

conduit of their political representatives, who have provided the requisite

endorsement to ensure that such a transformation achieves legitimacy.103

To recap, while a forward-looking theory of consent has distinct plausibility in

Australian constitutional law as one possible understanding of the meaning and

significance of popular sovereignty, the High Court has yet to unite the two ideas

to the exclusion of other competing sources of legitimating consent. Moreover,

even if the Court did so, this would not on its own give standard progressivist

tools of interpretation any special priority or legitimacy. Accordingly, if Brennan,

Deane and Gaudron JJ believed that their progressivist interpretative approach in

Street had solid foundations in the principle of popular sovereignty, their grounds

for this belief are unclear.

101 (1999) 198 CLR 511, 552. McHugh J here acknowledges his reliance upon Dworkin,above n 30, 134.

102 See Simpson, ‘The High Court’s Conception of Discrimination’, above n 28, 267–71.103 For a useful survey of literature tracing this phenomenon across several continents, see Shannon

Roesler, ‘Permutations of Judicial Power: The New Constitutionalism and the Expansion of Judicial Authority’ (2007) 32 Law & Social Inquiry 545, 547.

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B Constitutional Paradigm Shifts, Legitimacy and Consistency

The discussion above suggests that a reinterpretation of s 117 focused on

individual rights could not be defended as a necessary incident of some notion of

popular sovereignty. Yet that still leaves the question of whether such reinterpre-

tation is nevertheless attractive and consonant with the High Court’s constitu-

tional jurisprudence more generally. This question of consonance becomes

particularly important in light of the flexible approach to interpretation now

dominating on the Court — an approach perhaps most easily described as a

common law constitutional methodology where fit is more important than grand

theory.104 With this in mind, the pertinent question becomes: does the

rights-focused understanding of s 117 rest comfortably in the broader corpus of

Australian constitutional law? As I will explain, I think that it does not for reasons of institutional legitimacy and doctrinal consistency.

The most predictable and, I think, persuasive criticism that could be made of a

rights-inspired interpretation of s 117 amounts to an argument concerning

legitimacy — an argument concerning the legitimacy and radicalness of the

theoretical underpinnings of this suggested interpretation, rather than its likely

outcomes when applied to real disputes. Given that constitutional legitimacy is

as much about principle as it is about practical outcomes, judges must be

attentive to both when crafting doctrine. As will emerge in Part IV(A), the

competing theoretical foundations that may be attributed to s 117 are, as alterna-

tives, unlikely to have much of an impact on the resolution of specific cases, at

least not when all other factors, including the deciding judges, are controlled.

The illegitimacy lies, instead, with the premises on which the rights-focused

interpretation rests, which can be understood as follows: even while an intrinsicconcern for individuals was notoriously absent from the constitutional drafting

process, this concern can be regarded today as a primary value underlying

provisions of the Constitution and this transformation can be effected through

judicial interpretation and without popular imprimatur.

As Sir Anthony Mason has noted, perceptions of judicial legitimacy often

reflect matters of degree — judges can only go so far in departing from previous

orthodoxies before prompting widespread criticism and, ultimately, endangering

their legitimacy.105 The rights-focused view of s 117 dices rather recklessly with

that danger, simply because it represents such a radical departure from previous

orthodoxy. While some evolutionary change in constitutional meaning is widely

104 See, eg, SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51, 75 (Gummow J);Justice Susan Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ (2003) 26 Uni-versity of New South Wales Law Journal 210, 213–14, 217; Justice B M Selway, ‘Methodologiesof Constitutional Interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234, 246–9. On common law constitutional methodology more generally, see Philip Bobbitt,Constitutional Fate: Theory of the Constitution (1982); David A Strauss, ‘Common Law Consti-tutional Interpretation’ (1996) 63 University of Chicago Law Review 877. On ‘grand theory’approaches to constitutional law, see generally Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (1988).

105 Mason, ‘The Interpretation of a Constitution’, above n 80, 30. On the significance of maintain-ing public confidence as a consideration affecting the High Court’s reasoning, see Selway,above n 104, 250.

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agreed to be inevitable,106 it is quite a different thing for judges to engage in

constitutional reinterpretation that amounts to a major paradigm shift — that is, a

reconceptualisation of the foundational premises that permeate the whole

document and undergird its purposes and values.

Yet, that is precisely the scale of the shift embedded within the reasoning of

Brennan, Deane, Toohey and Gaudron JJ in Street . What these judges seemed

keen to do in Street was to use s 117 as a stepping stone to the installation of a

new major premise at the heart of the Constitution, to transform it into a docu-

ment with individuals at its core, alongside the well-accepted foundational

premise of federalism.107 This represents a radical project even when compared

with other significant shifts in the interpretation of the Australian Constitution.

The most recent likely point of comparison is the High Court’s apparent108

recognition of the principle of popular sovereignty, already mentioned. That

development was widely heralded at the time as a major paradigm shift.109

However, the reality there was that the High Court’s change in rhetoric simply

followed developments set in train by the political branches of government, most

importantly the passage of the Australia Act 1986 (Cth) and its corollaries in the

Australian states and in the UK. As others have pointed out, it is difficult to

extract from this train of events any authority or precedent for wide-ranging

renovation of Australia’s constitutional foundations at the instigation of the High

Court.110 That is so even when the recognition of popular sovereignty is put at its

highest in terms of its suggested significance.111

An older and more promising potential precedent for High Court-instigated

shifts in fundamental constitutional underpinnings is the Court’s landmark

decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘ Engineers’ Case’).112 There, a majority of the Court established a new ortho-

doxy in constitutional interpretation by declaring that the Constitution’s text

should be interpreted without regard to assumptions and implications. In

particular, the majority in the Engineers’ Case disavowed the early High Court

106 Even those judges and commentators committed to an originalist interpretative view are keen to point this out: see, eg, Eastman v The Queen (2000) 203 CLR 1, 42–3 (McHugh J); Re Wakim; Ex parte McNally (1999) 198 CLR 511, 549–51 (McHugh J); Jeffrey Goldsworthy, ‘Interpretingthe Constitution in Its Second Century’ (2000) 24 Melbourne University Law Review 677; Jer-emy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’(1997) 25 Federal Law Review 1.

107 See, eg, Winterton, ‘Popular Sovereignty’, above n 7, 2–3.108 As Winterton has noted, there has been no single case in which a majority of judges has

proclaimed popular sovereignty to be a feature of our constitutional system. However, a head

count in a number of cases seems to indicate sustained majority support for that principle: seeibid 4.109 See, eg, Keith Mason, ‘Citizenship’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The

Mason Court in Australia (1996) 35, 36; Brian F Fitzgerald, ‘Proportionality and AustralianConstitutionalism’ (1993) 12 University of Tasmania Law Review 263, 285; Leighton McDon-ald, ‘The Denizens of Democracy: The High Court and the “Free Speech” Cases’ (1994) 5 Pub-lic Law Review 160, 177, 182.

110 See Winterton, ‘Popular Sovereignty’, above n 7.111 There are, meanwhile, many who regard the Court’s moves in this direction as rather insignifi-

cant, as being nothing more than a belated recognition of a position which had prevailed sinceFederation by virtue of popular control of the constitutional amendment process: ibid 10.

112 (1920) 28 CLR 129.

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doctrines of ‘reserved powers’ and ‘implied immunity of instrumentalities’, both

of which involved assumptions about the need to preserve state influence and

autonomy in certain areas.113 Yet, this too should be seen as less radical than the

attempted paradigm shift embedded in some judgments in Street . In the Engi-

neers’ Case, the shift was indeed significant in terms of interpretative approach.

Yet, it left intact the major premise underpinning the Constitution — the need for

a workable federal system of government — even while it had the result of

significantly centralising power. Put simply, the Engineers’ Case heralded the

removal of a particular thumb on the constitutional scales — one that had

skewed the Court’s reasoning in its efforts to find a workable compromise

between state autonomy and central authority. The search for that compromise

permeates the document and represents the dominant theme of the debates

preceding Federation. The Engineers’ Case did not, however, alter the nature of

the items on the scales — the constitutional values and objectives in balance.114

The same can, I think, be said of other more recent major shifts in doctrine, such

as those concerning intergovernmental immunities, separation of powers, and

ss 90 and 92 of the Constitution.115

In contrast, the rights-inspired strands of reasoning in Street seek to do more

than reconfigure pre-existing constitutional interests and accommodations. The

new major premise that those judgments would add to our constitutional system

— the intrinsic value of individuals and the need to protect them from overween-

ing institutions of government — was not one of the contesting viewpoints that

survived the constitutional drafting process. The one notable framer who sought

the inclusion of individual rights protections, Andrew Inglis Clark, was acutely

aware of the scant support for his vision.

116

Indeed, most of his earlyrights-protective influence was consciously and systematically expunged from

later drafts of the Constitution.117 In light of this quite deliberate and thorough-

going evisceration, amply reflected in the Convention Debates, it is simply

unrealistic to assert that protection of individual rights was one of the main

concerns animating the Australian Constitution as conceived and enacted.118

Accordingly — and in relation to s 117 in particular — to find that a provision

protects individuals from discrimination as an end in itself is not to prefer or

elevate one of the constitutional interests that the document sought to reconcile.

113 Ibid 148–52, 154–60 (Knox CJ, Isaacs, Rich and Starke JJ). See also Zines, The High Court and the Constitution, above n 84, chs 1, 17; Michael Coper and George Williams (eds), How Many Cheers for Engineers? (1997).

114 Justice Selway expressed essentially the same point differently in contending that the Engineers’

Case did not alter the ‘fundamental assumption of the sovereignty of the Imperial Parliament’:Selway, above n 104, 235.115 See, eg, Melbourne Corporation v Commonwealth (1947) 74 CLR 31; R v Kirby; Ex parte

Boilermakers’ Society of Australia (1956) 94 CLR 254 (‘ Boilermakers’ Case’); Ha v New South Wales (1997) 189 CLR 465; Cole v Whitfield (1988) 165 CLR 360.

116 At the 1891 Convention, Clark conceded that ‘I do not expect my ideals to be realised in thefederal constitution about to be framed’: Official Report of the National Australasian Conven-tion Debates, Sydney, 11 March 1891, 242 (Andrew Inglis Clark).

117 See generally George Williams, above n 13, ch 2; John Williams, above n 12; HilaryCharlesworth, ‘Individual Rights and the Australian High Court’ (1986) 4 Law in Context 52.

118 See, eg, George Winterton, ‘Extra-Constitutional Notions in Australian Constitutional Law’(1986) 16 Federal Law Review 223; George Williams, above n 13, 246–7.

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With scant support in history, the rights-inspired interpretation of s 117, to be put

at its highest, must be regarded as a new perspective informed by contemporary

values, international law or some other progressivist interpretative wellspring.

The rights-inspired reasoning in Street stirs the deep-seated instinct that in a

democratic political system a significant paradigm shift really requires the

blessing of the sovereign people. The importance of a popular imprimatur in

bedding down fundamental constitutional change is reflected in the experience

of other countries that have recently added extensive human rights protections to

their constitutional instruments.119 The most relevant comparison lies perhaps

with Canada. The ‘patriation’ of Canada and its constitutional law from the UK,

a process that in many ways paralleled Australia’s experience with the Australia

Act 1986 (Cth), notably included express enactment of an extensive charter of

rights.120 Such comparisons underline a point that has been made many times but

warrants repetition here: for Australian judges to attempt, in a conscious and

systematic way, to make up for the absence of an equivalent rights charter in

Australia’s Constitution through interpretative innovations is not merely ambi-

tious and creative, it is also undemocratic.121

Aside from this problem of legitimacy, advancing a rights-focused interpreta-

tion of s 117 by means of progressivist interpretative tools also raises consis-

tency issues. In particular, such reasoning is almost entirely absent in the Mason

Court’s treatment of s 92, a provision acknowledged by most of the judgments in

Street to have a close relation to s 117.122 In the leading s 92 case of

Cole v Whitfield , the inscrutable text of that provision led a unanimous Court to

seek guidance in constitutional history, which revealed that the provision’s

rationale was the elimination of damaging protectionist measures.123

A quitecredible alternative source of guidance was available in the form of modern

international trade law, which would have suggested a broader prohibition upon

119 See, eg, Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (1998);Yoav Dotan, ‘The Spillover Effect of Bills of Rights: A Comparative Assessment of the Impactof the Bills of Rights in Canada and Israel’ (2005) 53 American Journal of Comparative Law 293; Rett R Ludwikowski, ‘“Mixed” Constitutions: Product of an East-Central European Consti-tutional Melting Pot’ (1998) 16 Boston University International Law Journal 1.

120 The Canadian Charter of Rights and Freedoms is contained in pt I of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11. For a full discussion of the process of Canadian patriation and the role of the Charter therein, see Peter W Hogg, Constitutional Law of Canada (2nd

ed, 1985) chs 3, 30.121 The basis for, and inevitability of, this line of objection is explained in Jeremy Kirk, ‘Rights,

Review and Reasons for Restraint’ (2001) 23 Sydney Law Review 19, 32–40. See also Leslie

Zines, ‘A Judicially Created Bill of Rights?’ (1994) 16 Sydney Law Review 166, 182.122 Street (1989) 168 CLR 461, 485 (Mason CJ), 502–5, 512 (Brennan J), 522 (Deane J), 540

(Dawson J). The only hint of the individual rights agenda in the modern s 92 cases lies in theseparate judgment delivered by Gaudron and McHugh JJ in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 478–80. There, they tried to refine the idea of discrimination inthe Court’s newly engineered s 92 test to harmonise that aspect of the doctrine with an overarch-ing, and distinctly modern, conception of discrimination. For a discussion in relation to Gaudronand McHugh JJ’s judgment, see Simpson, ‘The High Court’s Conception of Discrimination’,above n 28, 268; Amelia Simpson, ‘Grounding the High Court’s Modern Section 92 Jurispru-dence: The Case for Improper Purpose as the Touchstone’ (2005) 33 Federal Law Review 445,461.

123 (1988) 165 CLR 360.

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hindrances to trade more generally.124 Yet, this progressivist alternative was not

canvassed in Cole v Whitfield nor in subsequent s 92 cases.125

If a progressivist interpretative approach was appropriate in relation to s 117,

was it not also appropriate in the interpretation of the closely related s 92? The

avoidance of historical sources in several judgments in Street may reflect the fact

that the drafting history of s 117 is replete with racist overtones, making a

historically-focused approach unpalatable there. Alternatively, the judges most

keen to expand constitutional rights jurisprudence perhaps saw little scope for

harnessing s 92 in aid of that broader project, given that any rights-protective

interpretation would necessarily confer economic rights only.126 Whatever the

reason, and even for a Court which by majority subscribes unashamedly to a

flexible interpretative approach, it seems less than ideal to have provisions as

closely related as ss 92 and 117 interpreted by reference to such strikingly

divergent interpretative methodologies.

C Poor Prospects for an Individual Rights View of s 117

So far in this Part, I have concentrated on developing objections to a

rights-inspired interpretation of s 117. I will now explore the fact that develop-

ments in the High Court’s constitutional jurisprudence since Street do not augur

at all well for that approach.

As outlined earlier,127 the High Court has in recent times made room for pro-

gressivist sources among its array of interpretative aids and tools. However, very

few judges have made an unswerving commitment to progressivist modes of

interpretation, one that would see the fruits of such an approach outranking clear

indicators in constitutional text and history. In terms of individual commitmentto this approach, Murphy J was its clearest, and most controversial, expositor.128

More recently, Kirby J is the only judge who has articulated a preference for a

progressivist interpretative approach.129 In terms of an overall mood of openness

to progressivist interpretation, most would agree that the Mason Court set the

high-water mark.130

Among the members of that Court, Deane and Toohey JJ were the most deter-

mined enthusiasts of progressivist interpretation, drawing on its standard tools in

124 Simpson, ‘Grounding the High Court’s Modern Section 92 Jurisprudence’, above n 122, 477–8;Gonzalo Villalta Puig, ‘Free Movement of Goods: The European Experience in the Australian

Context’ (2001) 75 Australian Law Journal 639.125 See Cole v Whitfield (1988) 165 CLR 360; Castlemaine Tooheys Ltd v South Australia (1990)169 CLR 436; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322.

126 See, eg, Street (1989) 168 CLR 461, 503 (Brennan J): ‘The object of s 92 is to secure thefreedom of markets; the object of s 117 is to secure equal treatment for … individuals’.

127 See above Part III(A).128 See Michael Coper and George Williams (eds), Justice Lionel Murphy: Influential or Merely

Prescient? (1997).129 See, eg, Re Wakim; Ex parte McNally (1999) 198 CLR 511, 600; Grain Pool of Western

Australia v Commonwealth (2000) 202 CLR 479, 522–5; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 132–3; Kirby, above n 87.

130 See, eg, Pierce, above n 6.

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the service of greater individual rights protections.131 Nevertheless, leaving

Street aside, their progressivist, rights-oriented approach to the Constitution

prevailed only once — in Theophanous v Herald & Weekly Times Ltd , where the

implied freedom of political communication was expanded into the domain of

common law defamation.132 This was, moreover, a hard-fought and short-lived

victory, decided by a slim 4:3 majority and then overturned three years later by a

unanimous Court in Lange v Australian Broadcasting Corporation (‘ Lange’).133

A more ambitious, but also doomed, attempt to weave intrinsic concern for

individuals into the Constitution was mounted by Deane and Toohey JJ in

Leeth v Commonwealth (‘ Leeth’).134 There they attempted to locate an implied

right to legal equality in the Constitution, drawing upon s 117 as interpreted in

Street among other suggested evidence of a constitutional concern with individ-

ual rights. Deane and Toohey JJ’s position was not embraced by other members

of the Court in Leeth, who took at best a much more modest view of the nature

and scope of constitutional protection against discriminatory legal process.135

The idea of an overarching implied principle of this sort was quashed with more

certainty a few years later in Kruger v Commonwealth (‘ Kruger ’).136 In both

Lange and Kruger , the methodology of the enthusiastic progressivists was

rejected, with grave doubts expressed that text and history could be given such a

diminished role in any interpretative approach claiming legitimacy.137

Against this background, and considering the much remarked upon retreat by

the Gleeson Court into a more legalistic interpretative style,138 the chances of

survival, or revival, of the rights-inspired reading of s 117 appear slim. Even as

more recent s 117 cases have failed to excise these strands decisively and, in the

case of Sweedman, can even be read as giving them some sustenance, theeventual purging of these ideas is at least likely, if not inevitable. On this footing,

I will turn in Part IV to exploring what the consequences will be for s 117

doctrine when it is, at some future point, repositioned atop federal–structural

foundations.

131 This is a widely shared view: see, eg, Selway, above n 104, 236–7; Sir Anthony Mason, ‘Trendsin Constitutional Interpretation’ (1995) 18 University of New South Wales Law Journal 237, 249.

132 (1994) 182 CLR 104.133 (1997) 189 CLR 520. For an illuminating discussion of the philosophical foundations of the

political communication doctrine, see Adrienne Stone, ‘Rights, Personal Rights and Freedoms:The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374; Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668.

134(1992) 174 CLR 455, 483–90.135 For this view, see, eg, Zines, ‘A Judicially Created Bill of Rights?’, above n 121, 181–2; Mason,‘The Interpretation of a Constitution’, above n 80, 29; Jeremy Kirk, ‘Constitutional Implications(II): Doctrines of Equality and Democracy’ (2001) 25 Melbourne University Law Review 24. Cf Detmold, above n 9, 232.

136 (1997) 190 CLR 1.137 See especially ibid 63–7 (Dawson J), 141–2 (McHugh J), 154–5 (Gummow J); Lange (1997)

189 CLR 520, 566–7 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow andKirby JJ).

138 See Gleeson, above n 72, 85, 97–9; Zines, ‘Legalism, Realism and Judicial Rhetoric’,above n 72; Patapan, ‘High Court Review 2001’, above n 72, 241–2; Simpson, ‘Sweed-man v Transport Accident Commission’, above n 72, 371–2.

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IV THE FUTURE D IRECTION OF S 11 7

If the Court is to accept and acknowledge that s 117 operates to secure a col-

lective good, protecting individuals principally for instrumental rather than

intrinsic reasons, two things follow. First, this foundation should be reflected in

the further development of s 117 doctrine. In this Part, I will examine how an

understanding of s 117 that views the protection of individuals in principally

instrumental terms can guide the Court out of the complexity and confusion of

Street and towards an agreed test. Secondly, if a rights-inspired

non-discrimination norm deserves a place in our constitutional law — as I

believe it does — a fresh start with new text is the best way to proceed. While

that subject is beyond the scope of this article, I will return to it briefly in the

conclusion.

A A Focus on Collective, Federal–Structural Interests

What follows most obviously from the instrumental reading of the protection

of s 117 is that the High Court, in applying it, should remain focused on safe-

guarding the collective, federal–structural interest in national unity. This means

that the impact of any given law on any particular individual is irrelevant, except

to the extent that that impact can function as evidence in identifying and assess-

ing a threat to national unity.

While there was no attempt in the judgments in Street to flesh out the concept

of ‘national unity’, an interpretation of s 117 purporting to turn on that concept

requires some further explanation of it, along with some reflection upon what

might threaten it. The Court has already elaborated on one particular species of threat to national unity — that contemplated by the economic concept of

protectionism — in its modern s 92 jurisprudence.139 While that discussion is

helpful in mapping the idea of national unity, the s 117 context requires a wider

definition. As a starting point, I would suggest that national unity should be

understood as a sentiment or state of mind rather than as an observable, measur-

able fact. It amounts to a sense of shared fortunes and efforts, stemming from a

‘tendency to think of ourselves as a single people’.140 Accordingly, the actions or

laws of one state will constitute a threat to this sentiment of national unity when

they demonstrate indifference, or hostility, to the interests of residents of other

states. Such actions risk divisive consequences in so far as they elevate local

interests over national ones.141 It also seems safe to assume that an accumulation

of small divisive signals could be as effective a threat to national unity as a

single significant affront or source of conflict. Indeed, this seems borne out inAustralia’s closest brush with secession in Western Australia’s 1933 referendum

139 See Cole v Whitfield (1988) 165 CLR 360.140 Douglas Laycock, ‘Equal Citizens of Equal and Territorial States: The Constitutional Founda-

tions of Choice of Law’ (1992) 92 Columbia Law Review 249, 264.141 Ibid 264, 273.

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and petition to the UK, driven by several decades of accumulated grievance and

distrust across a range of issues.142

Even while the collective interest in national unity must remain at the core of a

s 117 analysis, attention to the position of individuals cannot be dispensed with

entirely. In keeping with the language of the provision, the High Court is

required to use evidence about the position of particular individuals as the basis

for assessing the potential impact of an impugned law upon national unity.

Indeed, in light of the Court’s acknowledged limitations in the receipt of

evidence, it is difficult to imagine the Court investigating a law’s potential to

impact upon national unity in a more direct and comprehensive way. Neverthe-

less, it is important for the Court to keep in mind the instrumental nature of its

focus upon individuals in the s 117 context. A state law’s adverse impact upon an

individual out-of-state resident will not always be indicative of the kind of state

parochialism or localism that is harmful to the spirit of national unity. If the latter

represents the root concern of s 117, the Court should be careful not to lose sight

of this, even while directing its analysis to individuals’ circumstances.

If the effect of a state law on an individual is simply an imperfect indicator of

that law’s broader impact upon national unity, how should this insight be

incorporated into a s 117 test? In pondering this, we need to examine both of the

distinctive approaches to constructing a test that were developed in Street , as

outlined in Part II. Consider the split, or two-stage, approach exemplified in the

reasons of Mason CJ. That approach began by considering whether the individ-

ual suffered, in substance, a disability or discrimination by virtue of their

out-of-state residence, and only then turned to examine whether the discrimina-

tion was excusable.143 Within this test, recognition that the interest in individuals

is merely instrumental occurs at the second stage. There, the two-stage test

purports to excuse particular disadvantageous treatment on the grounds that it is

important for the maintenance of state autonomy. In my view, this kind of test

would be clearer — and truer to the best theory of the nature and purpose of

s 117 — if it tapped the concept of national unity directly and explicitly in

delimiting the provision’s scope. While the judgments in Street tend to present

state autonomy as a separate and conflicting federal–structural goal, such that the

two must be pitted against one another and a choice made, that analysis takes an

unnecessary and unhelpful turn.

A preferable framework for analysis would view these two concepts — state

autonomy and national unity — as partners rather than antagonists. To the extent

that s 117 is presumed not to interfere in such instances of localism as resi-

dent-only voting in state elections and resident-only state welfare benefits, thiscan be viewed not as a concession to a countervailing state interest but rather as

an expression of the national interest. Where, by implicit agreement, certain

aspects of life in a federation are organised and administered at the sub-national

level, one state’s exclusion of outsiders can be seen as representing more than

142 See, eg, Geoffrey Bolton, ‘The Civil War We Never Had’ (Paper presented at the ThirdConference of The Samuel Griffith Society, Fremantle, 5–6 November 1993) 50; CampbellSharman, ‘Secession and Federalism’ (Paper presented at the Third Conference of The SamuelGriffith Society, Fremantle, 5–6 November 1993) 56.

143 See Street (1989) 168 CLR 461, 489–92 (Mason CJ), 548–9 (Dawson J), 582–4 (McHugh J).

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self-interest.144 Localism in that context represents a state’s fulfilment of its part

of the national compact, a gesture that does nothing to undermine national unity.

It was likely that this was the insight, or instinct, towards which the ‘state

autonomy’ reasoning found in several judgments in Street was groping.

The examples of exceptions furnished in the judgments in Street — voting and

candidacy in state elections, provision of welfare benefits, and the like — are

readily captured by this idea of localism by implicit consensus as a dimension of

the national interest and thus a contribution to national unity. It will often be true

that a particular resident of, say, Victoria might at a personal level have a strong

interest in sharing in another state’s provision of free or subsidised elective

surgery, counselling, vocational training, or any number of other services and

benefits. Nevertheless, at least in relation to non-emergency services, the

national interest in properly functioning federalism and adequate government

provision can be seen as better served by principles of localism that discourage

any one state from ‘free-riding’ on the social services of other states, such as

might prompt a nationwide race to the bottom in service provision.145 Likewise,

the national interest is probably well served by laws in each state that reserve

political participation for residents of the state. While nonresidents may have

some interest in the laws and policies adopted in a given state — for instance

they may take holidays, work or invest in the state — their motivation for

seeking to participate in state political decisions is likely to be narrowly focused

around a very limited set of issues. On this footing, their involvement might be

expected to work distortions in state law and policy — distortions likely to be

resented by state residents, with corrosive consequences for national unity.146

While legislative and policy practices are apt to reveal an understandingamong the polities of Australia and among their peoples that some things ought

to be handled at a sub-national level, such consensus does not, of course, stand

still. The division of responsibilities is a shifting landscape in Australia no less

than in other federations. Nevertheless, where such consensus can be uncovered

it should provide the backdrop to consideration of demands for inclusion made

by individual out-of-state residents. I say backdrop, rather than touchstone,

because it is at least theoretically possible that a consensus position might work

to undermine national unity as envisaged by the Constitution. The case of

emergency services is a useful example. It is highly unlikely that any national

consensus would ever develop around the exclusion of interstate residents from

state-provided police assistance, emergency medical care and so on. In that

event, however, courts could still find such extreme disincentives to interstate

intercourse to be threatening to the objective of national unity. In other words,while apparent state consensus can be useful in fleshing out the concept of

144 For the development of this idea in the US context, see Jonathan D Varat, ‘State “Citizenship”and Interstate Equality’ (1981) 48 University of Chicago Law Review 487, 522–3; Laycock,above n 140, 270–3.

145 Laurence H Tribe, American Constitutional Law (3rd

ed, 2000) vol 1, 1263; Laycock,above n 140, 272.

146 Cf Sanford Levinson, ‘Suffrage and Community: Who Should Vote?’ (1989) 41 Florida Law Review 545, 551–4.

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national unity and its requirements, it should not be treated as decisive in every

instance.

Where challenged instances of localism are examined for their benign or

corrosive impact on national unity, the national unity concept assumes its rightful

place as the centrepiece of s 117 analysis. Understanding s 117 in this way could

have helped the High Court to construct more persuasive reasons in Sweedman.

The joint majority judgment there resorted to an impoverished substance-based

conception of discrimination to assert that the disadvantage suffered by the

plaintiff had nothing to do with her state of residence.147 Instead, it would have

been possible, and preferable, to concede a connection between her state of

residence and the disadvantage, yet find that that disadvantage grew out of

arrangements that did not reflect localism of a kind corrosive to national unity. It

might have been explained that localised provision of the relevant services —

insurance and compensation for motor vehicle accidents and resulting injury —

was evidently a matter of national consensus and thus was positive, or at least

benign, in its impact on national unity. While this kind of analysis would

necessarily require the Court to venture into a discussion of policy matters, that

task should be embraced rather than shirked. In this context, at least, it lies at the

heart of the role assigned to the Court as guardian of the federal system.

I have said nothing yet about how the centrality of national unity might play

out within the alternative model for a s 117 test, which was developed most

clearly in the judgment of Gaudron J in Street . Recall that this approach involves

holistic consideration of whether an impugned law treats out-of-state residents

differently pursuant to a rational and relevant distinction which is appropriate

and adapted to a legitimate state objective. If this formulation were favoured,

attention to the underlying rationale of national unity would likely fit in as part

of the search for a legitimate state objective. The holistic test, on its face, seems

flexible enough to be applied with exactly the same inputs, and the same

weightings, as those fed into the two-stage test. However, in being more

open-ended, the holistic test also creates greater scope for the individual’s

interests to be given independent weight, even where they may conflict with the

collective interest in national unity. While this may not matter in the hands of

judges committed to the federal–structural perspective and thus to screening out

individual interests, it nevertheless contributes an opacity that is unhelpful. Of

course, it is no coincidence that the holistic test was preferred in Street by those

judges attracted to a rights-focused view of s 117. It was preferred, we can

assume, precisely because it created more room for the consideration of individ-

ual interests.148

And so, if the Court accepts that the s 117 right should first and foremost be

valued instrumentally as promoting national unity, it should discard the holistic

test. It should prefer a two-stage test similar to that favoured by Mason CJ,

147 See Simpson, ‘Sweedman v Transport Accident Commission’, above n 72.148 I have elsewhere criticised the holistic conception of discrimination as ill-advised. The s 117

context provides a useful illustration of its inadequacy — the holistic test in this context does notsufficiently highlight the objective of national unity, and so allows judges to lose sight of, or consciously erode, its significance: see Simpson, ‘The High Court’s Conception of Discrimina-tion’, above n 28.

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Dawson and McHugh JJ in Street . Furthermore, the second stage of that test,

rather than being articulated in terms of a distinct and competing interest in state

autonomy, can and should be focused more sharply on national unity as its

touchstone. As explained above, differential treatment that is unlikely to have a

corrosive effect upon national unity because it accords with an implicit consen-

sus about where the national interest lies sits entirely outside the compass of

s 117. It does so without the need to resort to any separate, competing value or

concept such as state autonomy. I will turn now to consider whether the refine-

ment of such a test could be usefully informed by continued attention to United

States jurisprudence.

B Seeking Guidance in Comparative Law

As already mentioned, several judgments in Street looked to US constitutional

jurisprudence for guidance on how best to construe s 117. Some judges seemed

to find US case law relevant and helpful, while others deemed it distinctly

unhelpful.149 I will here consider the potential lines of comparison and explain

where I think US doctrine can and cannot be instructive. I will also give brief

consideration to equivalent jurisprudence of the European Court of Justice and

explain why that cannot provide useful guidance.

It is perhaps best to begin with the European Court’s jurisprudence, as that can

be dispensed with quickly. There is, on the surface, obvious similarity between

s 117 of the Australian Constitution and art 48 of the Treaty of Rome.150 The first

two paragraphs of art 48 provide:

(1) Freedom of movement for workers shall be secured within the Commu-nity …

(2) Such freedom of movement shall entail the abolition of any discrimina-tion based on nationality … as regards employment, remuneration andother conditions of work and employment.

However, the European Court’s interpretation of art 48 has taken it in a very

different direction. In the leading case of Union Royale Belge Sociétés de

Football Association v Bosman, the European Court found that art 48(1) prohib-

ited restrictions on free movement of workers whether discriminatory or not.151

Thus, art 48(2) now has the limited function of confirming that freedom of

movement includes freedom from discrimination in employment. By contrast,

149 In Street (1989) 168 CLR 461, the US experience was considered instructive by Mason CJ(at 491), Dawson J (at 546) and Gaudron J (at 572–3). It was considered unhelpful by Brennan J

(at 514), Toohey J (at 560) and McHugh J (at 584–5).150 Treaty Establishing the European Economic Community, opened for signature 25 March 1957,

298 UNTS 11, art 48 (entered into force 1 January 1958). This might be thought relevant andcomparable in light of the several references to European discrimination jurisprudence in someof the judgments in Street : see, eg, Street (1989) 168 CLR 461, 571 (Gaudron J). More generally,some members of the Mason Court turned to European constitutional jurisprudence as a sourceof guidance, particularly in contexts concerned with the protection of individual rights andconsequent limits on government power: see, eg, Dietrich v The Queen (1992) 177 CLR 292,307 (Mason CJ and McHugh J); Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 130 (Mason CJ, Toohey and Gaudron JJ); Cunliffe v Commonwealth (1994) 182 CLR 272,325 (Brennan J).

151 (C-415/93) [1995] ECR I-4291.

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s 117 of the Australian Constitution has not been reduced to a subset of a broader

provision and remains firmly anchored as a prohibition on discriminatory

burdens. As is also the case in relation to s 92 then, European Community law is

not an especially useful source of guidance.152

More fruitful comparisons may be drawn with US constitutional jurisprudence.

Article IV § 2 cl 1 of the United States Constitution provides that ‘[the] Citizens

of each State shall be entitled to all the Privileges and Immunities of Citizens in

the several States.’ In the foundational case of Toomer v Witsell (‘Toomer ’), the

US Supreme Court declared that the ‘primary purpose of this clause … was to

help fuse into one Nation a collection of independent, sovereign States.’ 153 That

federal–structural goal has informed the Court’s treatment of the clause and has

been an important determinant of the contours of Privileges and Immunities

jurisprudence.

In Toomer , the Supreme Court held that there must be a ‘substantial reason’ for

the different treatment of outsiders and that the treatment must bear a ‘close

relation’ to that reason.154 In other words, to survive review under the Privileges

and Immunities clause, a discriminatory law must be well-tailored to a legitimate

state objective. That principle remains the cornerstone of the Supreme Court’s

approach. However, in what some have regarded as an unhelpful throwback to

pre-Toomer doctrine,155 a majority of the Supreme Court in Baldwin v Fish and

Game Commission of Montana (‘ Baldwin’) indicated that not all instances of

discrimination against outsiders by a state were sufficiently serious to attract

review under the Privileges and Immunities clause.156 It was held there that

Montana’s practice of charging outsiders considerably more than it charged

residents for a licence to hunt Montana elk did not implicate a right sufficientlyimportant to ‘[bear] upon the vitality of the Nation as a single entity’.157 While

the Supreme Court has never listed the rights and interests that will so bear, they

seem at least to include constitutionally protected rights as well as economic

interests such as the capacity to earn a living.158 The Supreme Court apparently

considers this Baldwin principle to be the first part of a two-part test — a

threshold requirement that may defeat a Privileges and Immunities challenge

before the Toomer balancing test is applied.159

When comparing the US doctrine with the positions that emerged from Street ,

several points of interest stand out. First, the accepted purpose of the art IV § 2

Privileges and Immunities clause is a federal–structural one. It is not surprising,

then, that in Street the greatest enthusiasm for this avenue of US comparison

152 On the unhelpfulness of European Community law in the s 92 context, see Simpson, ‘Groundingthe High Court’s Modern Section 92 Jurisprudence’, above n 122, 477–8.

153 334 US 385, 395 (Vinson CJ for the Court) (1948).154 Ibid 396.155 See, eg, Tribe, above n 145, 1257, 1269.156 436 US 371 (1978).157 Ibid 383 (Blackmun J).158 See, eg, Supreme Court of New Hampshire v Piper , 470 US 274 (1985) — a case that attracted

the High Court’s attention in Street — where a lawyer’s capacity to practise her profession wasconsidered important to national unity in the necessary sense.

159 See United Building and Construction Trades Council of Camden County and Vicinity v Council of Camden, 465 US 208 (1984).

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came from those judges favouring federal–structural, instrumentally-focused

reasoning.160 Secondly, the first part of the Privileges and Immunities two-stage

test — the threshold question of fundamental rights emerging from the Baldwin

case — finds no close equivalent in any of the proposed s 117 tests that were

framed in Street . Indeed, several of the judgments in Street were careful to

disavow, as a model for s 117, the US threshold test to the extent that the latter

excluded supposedly trivial instances of discrimination from review.161 On the

other hand, to the extent that the Baldwin threshold test functioned to isolate the

question of whether there was prima facie discrimination, several members of

the Street Court clearly approved of such a partitioning.162

The final point to note by way of comparison relates to the second part of the

US test — the examination of a law’s policy rationale and tailoring to its

objectives — which does bear a broad resemblance to the various approaches

taken to s 117 in Street . In its terms, it could seem closest to the holistic balanc-

ing test, which also invokes explicitly the imagery of ‘fit’ between ends and

means. But on closer examination, the second stage of the US test has more in

common with the analysis favoured by Mason CJ, Dawson and McHugh JJ in

Street . This is because the assessments undertaken in that component of the US

test represent a reconciliation of national unity with state autonomy. Thus, the

focus is firmly upon federal–structural, collective interests and where these lie in

a particular setting. As the judgments of Mason CJ, Dawson and McHugh JJ

focused upon mapping those same interests, much of their evident thinking about

the limits to the reach of s 117 overlaps significantly with the concept of

substantial reasons developed in the US cases.

In light of my claim that s 117 of the Australian Constitution should be under-stood solely through a federal–structural prism, and as taking a merely instru-

mental interest in the treatment of individuals, how should the US Privileges and

Immunities jurisprudence be viewed here?163 The judgments in Street that

emphasised a federal–structural purpose were divided on this question —

Mason CJ and Dawson J considered the US jurisprudence relevant and helpful,

while McHugh J cautioned against close attention to it.164 If, as I suggested in

Part IV(A) above, an implicit consensus about the value to the nation of localism

in certain areas of regulation or participation is accepted as underpinning the

‘exceptions’ to s 117, then I would venture qualified support for Privileges and

Immunities jurisprudence as a relevant source of guidance. I say ‘qualified’ here

because the implicit social consensus about the value of localism is inherently

particular to one federal nation’s circumstances and traditions. While in many,

perhaps a majority, of instances the contours of such consensus in Australiawould mirror those in the US, there may well be differences to which the High

Court must remain alert. With this in mind, however, US case law can serve as a

160 (1989) 168 CLR 461, 491 (Mason CJ), 546–8 (Dawson J), cf 584–5 (McHugh J).161 Ibid 491 (Mason CJ), 560, 563 (Toohey J), 584–5 (McHugh J).162 Ibid 491 (Mason CJ), 511–12 (Brennan J), 559–60 (Toohey J), 582–4 (McHugh J).163 This question is also a signif icant focus of Michael Mathieson’s s 117 analysis, which represents

an important and useful contribution to the literature on s 117: see Mathieson, above n 4.164 See Street (1989) 168 CLR 461, 491–2 (Mason CJ), 546 (Dawson J), 584–5 (McHugh J).

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useful source of comparative guidance on the articulation and protection of the

common objective of national unity.

I should give brief mention to another strand of the US Supreme Court’s

Privileges and Immunities jurisprudence that is not mirrored in the s 117 context.

In some of its decisions, the Supreme Court articulated an additional rationale

for the art IV Privileges and Immunities clause, one drawing upon the idea

contained in the famous footnote four in the case of United States v Carolene

Products Co (‘Carolene Products’).165 This additional rationale understands

discrimination, and prohibitions upon it, in terms of political exclusion —

specifically, the need to protect ‘outsiders’ lacking a political voice in the

law-making jurisdiction.166 Underlying this analysis was the assumption that

significant deference is due to laws generated by a democratic political process.

Where a law impacts most harshly on people who had no say in its creation, the

theory goes, it is legitimate to see that law as suspect and thus to subject it to

extra scrutiny. At first blush, this might seem to fit nicely with the values and

assumptions driving Australia’s Constitution, making it a potentially powerful

explanation for the inclusion of s 117. However, there is nothing in the Conven-

tion Debates to suggest that this possible rationalisation was appreciated by the

framers. Indeed, it only found voice in the US jurisprudence well after Austra-

lia’s Constitution came into being. The absence of this line of thinking in

Australia might be put down to different attitudes to judicial review. The

legitimacy of judicial review in protecting and policing the federal compact has

been accepted virtually without question in Australia’s political and scholarly

communities since Federation,167 whereas the US judiciary and academy have

long striven for alternate and additional rationalisations.

168

Thus, while theCarolene Products approach could well offer an additional rationalisation in

respect of s 117, the need for such has simply not been felt in Australia.

Finally, something should be said of a quite different strand of US constitu-

tional jurisprudence, one that is clearly not relevant to the further development of

s 117 despite having been raised in Street . Brennan J insisted in Street that s 117

could be compared usefully not just with the Privileges and Immunities clause of

the United States Constitution but also with that document’s Fourteenth Amend-

ment.169 He claimed, in fact, that s 117 had ‘more conceptual affinity’ with the

latter’s Equal Protection clause than with the Privileges and Immunities

165 304 US 144, 152–3 fn 4 (Stone J for the Court) (1938).166 See United Building and Construction Trades Council of Camden County and Vicinity v Council

of Camden, 465 US 208, 217 (Rehnquist J for the Court) (1984); Austin v New Hampshire, 420

US 656, 662 (Marshall J for the Court) (1975); John Hart Ely, Democracy and Distrust: A The-ory of Judicial Review (1980) 83.

167 See, eg, B Galligan, ‘Judicial Review in the Australian Federal System: Its Origin and Function’(1979) 10 Federal Law Review 367; James A Thomson, Judicial Review in Australia: The Courts and the Constitution (1988) 129–60; Helen Irving, ‘Its First and Highest Function: TheFramers’ Vision of the High Court as Interpreter of the Constitution’ in Peter Cane (ed), Centen-ary Essays for the High Court of Australia (2004) 17.

168 See, eg, Ely, above n 166; Jesse H Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980); Lynn A Baker andErnest A Young, ‘Federalism and the Double Standard of Judicial Review’ (2001) 51 Duke Law Journal 75.

169 (1989) 168 CLR 461, 505, 514.

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clause.170 However, on a federal–structural understanding of s 117, the US Equal

Protection jurisprudence cannot offer useful guidance. The latter’s grounding in

the intrinsic valuing of individuals, and a desire to protect their inherent dignity,

is well established. The Supreme Court has resisted calls to replace that focus

upon individuals with a broader focus upon social dynamics and group disadvan-

tage, under which affirmative action measures might appear more acceptable.171

If, as I suggest, s 117 of the Australian Constitution is best understood as a

federal–structural guarantee that confers protection on individuals for principally

instrumental reasons, the Equal Protection clause is not a useful source of

guidance. Only when Australia’s Constitution is amended to incorporate a

broader non-discrimination provision, under which individuals are valued

intrinsically, will US Equal Protection jurisprudence come into its own as a

source of influence and inspiration.

V CONCLUSION

The nature, and hence the scope, of the s 117 prohibition on state residence

discrimination was a matter of the deepest contestation in Street . The High

Court’s more recent s 117 decisions have left us none the wiser as to whether that

non-discrimination rule is grounded in federal–structural concerns or rather in

intrinsic concern for individual welfare. I have suggested that the former

understanding is the more appropriate, in that it rests most comfortably with

overarching constitutional principle and with other areas of the Court’s constitu-

tional jurisprudence. Having avoided grappling with this most fundamental of

questions in its decisions since Street , the Court needs to recognise the present

lack of clarity and resolve this at its next opportunity.My arguments and conclusions in this article should not be misunderstood as

anti-human rights. I am not suggesting that individuals and their intrinsic worth

are not proper subjects for constitutional protection — indeed, I am attracted to

the idea of the constitutionalisation, via textual amendment, of human rights

protections, even while this seems some way off in Australia. I do, however,

firmly believe that such fundamental change must take the form of textual

amendment, having the direct endorsement of the sovereign people. For judges

to attempt to drive that agenda through strained reinterpretation of inadequate

text — which might still be the future course of s 117 — could be counterpro-

ductive, masking the textual inadequacy and deferring its confrontation.

170 Ibid 514.171 See Washington v Davis, 426 US 229 (1976). For discussion of alternative viewpoints, see Owen

M Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy & Public Affairs 107;Catharine A MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) pt 1 ch 2;Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (1987) ch 7.

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