Simpson, Amelia --- "The (Limited) Significance of the Individual in Section 117 State Residence Discrimination" [2008] MelbULawRw 19; (2008) 32(2) Melbourne University Law Review 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
The High Court of Australia’s most recent encounter with s 117 of the Constitution — 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] 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 exceptions[4] 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 individuals 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 the Australian 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]
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 instrumentally-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.
II THE NATURE OF THE S 117 NON-DISCRIMINATION RULE
A Drafting and Early Interpretation
Section 117 is unique among the non-discrimination provisions in the Australian 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 applicable to 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:
A State shall not make or enforce any law abridging any the [sic] privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any 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 representative democracy provided sufficient protection for individuals.[13] On the specific question 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 narrow 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 to reside 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.
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 representatives, 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 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 reference to the expression ‘disability or discrimination’ rather than by identification of interests pertaining to national unity or by reference to the federal object attending 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 be attained.’[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 in the redefinition of the provision as noted above.
However, a deeper issue is the significant disagreement amongst the judgments 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 Constitution. They inclined towards a consequentialist mode of reasoning and a view that s 117 should, first and foremost, be valued instrumentally for its contribution to sustaining the federal union.[29] Other judges placed much greater emphasis 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 the form-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.
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 residence. 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]
While Toohey J’s approach is testament to the influence of history-driven analysis in Australian constitutional law, he might nevertheless have made a more persuasive 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 identification 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 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 discrimination. 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. Gaudron 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 accepted as 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 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 discrimination 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 disagreement among them lies not only in the way that the so-called ‘exceptions’ to s 117 are 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.
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 to immunise 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] They made 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 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 unanswered 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 consider’[70] the nature and scope of exceptions to the reach of s 117.[71] The decision is 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 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 investment in this particular conception of discrimination — a position which I have discussed in detail elsewhere[76]
— 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 developments, 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 VIEW OF S 117
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 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 jurisprudence 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 — the suggested 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 landscape 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 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 constitution’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 to recognise 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 Constitution why a forward-looking understanding of the nature and source of constitutional legitimacy should lend any particular priority to progressivist interpretative 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 sovereignty’ 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 recognized 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 not wholly, in the hands of the Australian people.[95]
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 Constitution’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 recognises 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 constitution 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 the consent 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 infrequent — a total of eight changes have been passed over 100 years from among 44 proposals[100] — the symbolism attaching to this process is potent. I do not 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 discrimination jurisprudence in interpreting s 117. It might be argued that the framers had only an inchoate understanding of what they meant by ‘discrimination’. Accordingly, 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 reasoning.[102]
For instance, the emergence of a preference for attention to substance over form in discrimination analysis and its having been picked up in constitutional contexts is, I think, an entirely acceptable and desirable development. Yet I do not think that an understanding of the fundamental purpose of a discrimination 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 objections 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.
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 reinterpretation is nevertheless attractive and consonant with the High Court’s constitutional 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 alternatives, 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 intrinsic concern 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 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 document 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 apparent[108] 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 orthodoxy 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 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 Engineers’ 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 overweening 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 early rights-protective influence was consciously and systematically expunged from later drafts of the Constitution.[117]
In light of this quite deliberate and thoroughgoing 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. 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 ambitious and creative, it is also undemocratic.[121]
Aside from this problem of legitimacy, advancing a rights-focused interpretation of s 117 by means of progressivist interpretative tools also raises consistency 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 quite credible alternative source of guidance was available in the form of modern international trade law, which would have suggested a broader prohibition upon 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 developments 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 progressivist 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 commitment to 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 determined enthusiasts of progressivist interpretation, drawing on its standard tools in 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 individual 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, the eventual 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.
IV THE FUTURE DIRECTION OF S 117
If the Court is to accept and acknowledge that s 117 operates to secure a collective 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 safeguarding 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 assessing 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, measurable 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 in Australia’s closest brush with secession in Western Australia’s 1933 referendum 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. Nevertheless, 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 individual suffered, in substance, a disability or discrimination by virtue of their out-of-state residence, and only then turned to examine whether the discrimination 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 resident-only voting in state elections and resident-only state welfare benefits, this can 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 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 understanding among 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 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 individual 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, 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 consensus 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 refinement 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 Community …
(2) Such freedom of movement shall entail the abolition of any discrimination based on nationality … as regards employment, remuneration and other 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) prohibited 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, 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 sufficiently important 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 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 balancing 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 understood solely through a federal–structural prism, and as taking a merely instrumental 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 Australia would 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 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 Convention Debates to suggest that this possible rationalisation was appreciated by the framers. Indeed, it only found voice in the US jurisprudence well after Australia’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 the Carolene 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 constitutional 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 Amendment.[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 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 disadvantage, 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 constitutional 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 counterproductive, masking the textual inadequacy and deferring its confrontation.
[∗] BA (Hons), LLB (Hons) (ANU), LLM, JSD (Columbia); Barrister and Solicitor of the High Court of Australia; Senior Lecturer, ANU College of Law, The Australian National University. The author thanks Kent Greenawalt, Gerald Neuman, Michael Dorf, Leighton McDonald, James Stellios, Leslie Zines and two anonymous referees for helpful comments on earlier drafts. This article forms part of the author’s JSD dissertation at Columbia University School of Law.
[1] [2006] HCA 8; (2006) 226 CLR 362.
[2] [1989] HCA 53; (1989) 168 CLR 461.
[3] See, eg, the painstaking treatment of the case given by Nettle JA in Transport Accident Commission v Sweedman [2004] VSCA 162; (2004) 10 VR 31, 56–63.
[4] In Part VI, I will question the suitability of the term ‘exceptions’ to describe areas in which the s 117 rule does not operate. However, in spite of its imperfection, the term has been employed in High Court judgments and in scholarly commentary on s 117: see, eg, Street [1989] HCA 53; (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 and George 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] FedLawRw 1; (1998) 26 Federal Law Review 1.
[8] See James Stellios, ‘Using Federalism to Protect Political Communication: Implications from Federal Representative Government’ [2007] MelbULawRw 9; (2007) 31 Melbourne University Law Review 239.
[9] Among the first to employ this term in this context was M J Detmold, ‘The New Constitutional Law’ [1994] SydLawRw 18; (1994) 16 Sydney Law Review 228.
[10] Opportunities were passed up in Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 179 CLR 463 (‘Goryl’) and in Sweedman [2006] HCA 8; (2006) 226 CLR 362.
[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] HCA 46; (1904) 2 CLR 29.
[16] Administration Act 1903 (WA) s 86, repealed by Death Duty Assessment Act 1973 (WA) s 3.
[17] [1973] HCA 32; (1973) 128 CLR 482.
[18] Rules of Court Regulating the Admission of Practitioners 1955–1972 (SA) rr 27(1), 28.
[19] Street [1989] HCA 53; (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] HCA 18; (1994) 179 CLR 463, 485.
[25] Street [1989] HCA 53; (1989) 168 CLR 461, 492. See also at 528 (Deane J), 583–4 (McHugh J). Toohey J, while reluctant in this case to give any definite expression to s 117’s limits, did indicate his sympathy with the federalism-based view: at 559–60.
[26] Ibid 570. In contrast, McHugh J expressly rejected the definitional basis for limiting s 117’s scope, 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 discrimination and its employment elsewhere in the High Court’s constitutional jurisprudence is discussed in more detail in Amelia Simpson, ‘The High Court’s Conception of Discrimination: Origins, Applications, and Implications’ [2007] SydLawRw 10; (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, 127–8. Others have employed the language of ‘goal-based’ theories: see Jeremy Waldron, ‘Introduction’ 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 individual rights, see, eg, Philip Pettit, ‘Rights, Constraints and Trumps’ (1987) 47 Analysis 8; Ronald Dworkin, 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] HCA 53; (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).
[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] HCA 53; (1989) 168 CLR 461, 570.
[43] Ibid.
[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 [1979] UKPC 21; [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[1886] USSC 48; , 116 US 616, 635 (Bradley J) (1886); Byars v United States[1927] USSC 2; , 273 US 28, 32 (Sutherland J for the Court) (1927). All are statements regarding the interpretation of constitutional rights conventionally understood as, first and foremost, protective of individual rights and interests.
[49] Street [1989] HCA 53; (1989) 168 CLR 461, 503.
[50] Ibid 512.
[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.
[59] [1994] HCA 18; (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] HCA 40; (1988) 169 CLR 41; McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1; Stevens v Head [1993] HCA 19; (1993) 176 CLR 433.
[61] Goryl [1994] HCA 18; (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] HCA 53; (1989) 168 CLR 461, 583.
[64] That is, if we were tempted to reassign Toohey J to the federal–structural camp based on his change 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 to emphasise the fact that Goryl does little to bridge the divide between the two visions of s 117.
[65] [2006] HCA 8; (2006) 226 CLR 362.
[66] Transport Accident Commission v Sweedman [2004] VSCA 162; (2004) 10 VR 31, 57–63 (Nettle JA).
[67] Sweedman [2006] HCA 8; (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, Realism 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 Characterisation’ (2006) 34 Federal Law Review 363, 371–2.
[73] Sweedman [2006] HCA 8; (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 interpretative approaches in an Australian context, I will go into only so much depth as is necessary to deal with the specific context of s 117.
[79] See, eg, Street [1989] HCA 53; (1989) 168 CLR 461, 541 (Dawson J); Goryl [1994] HCA 18; (1994) 179 CLR 463, 495 (McHugh J).
[80] As Sir Anthony Mason notes, it is fanciful to contend that ‘delegates who consumed so much time discussing particular drafting points would leave the major issue of guarantees of unidentified fundamental or common law rights to be developed as a matter of implication’: Sir Anthony Mason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’ in Charles Sampford 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.
[84] I will have these most prominent examples in mind when referring to progressivist interpretative tools in this article. On policy and values, see, eg, Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ [1986] FedLawRw 1; (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 (4th ed, 1997) ch 15; Detmold, above n 9; John Braithwaite, ‘Community Values and Australian Jurisprudence’ [1995] SydLawRw 21; (1995) 17 Sydney Law Review 351; Martin Krygier and Arthur Glass, ‘Shaky Premises: Values, Attitudes and the Law’ [1995] SydLawRw 23; (1995) 17 Sydney Law Review 385. On international law, see Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 417–19 (Kirby J); Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 657–61 (Kirby J); Amelia Simpson and George Williams, ‘International Law and Constitutional Interpretation’ (2000) 11 Public Law Review 205; Kristen Walker, ‘International Law as a Tool of Constitutional Interpretation’ [2002] MonashULawRw 4; (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 constitutions and those found in international law. The idea is useful in my analysis here, even absent the 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] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1, 7; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (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] HCA 54; (1976) 135 CLR 552, 566 (Murphy J).
[88] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 138 (Mason CJ); Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 72 (Deane and Toohey JJ); McGinty v Western Australia [1996] HCA 48; (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 source from which the Constitution derives its authority’ or if it is ‘the location of the power to amend the Constitution’: Winterton, ‘Popular Sovereignty’, above n 7, 4.
[92] (1992) 177 CLR 106, 138.
[93] [1996] HCA 48; (1996) 186 CLR 140, 230, 237.
[94] [1992] HCA 46; (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 the original enactment by the UK Parliament as well as its subsequent retention and acceptance by the Australian people. See also G J Lindell, ‘Why Is Australia’s Constitution Binding? — The Reasons in 1900 and Now, and the Effect of Independence’ [1986] FedLawRw 2; (1986) 16 Federal Law Review 29.
[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) 177 CLR 106, 181 that the ‘legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament.’ See also the comment of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 494 that Australian sovereignty resides in a ‘constitutional monarch’, and discussion of this comment in Michael Wait, ‘The Slumbering Sovereign: Sir Owen Dixon’s Common Law Constitution Revisited’ [2001] FedLawRw 3; (2001) 29 Federal Law Review 57. See also Winterton, ‘Popular Sovereignty’, above n 7; Lindell, above n 95.
[97] [1994] HCA 46; (1994) 182 CLR 104, 171.
[98] [1992] HCA 46; (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 the mechanism 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 August 2007) <http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm> .
[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.
[104] See, eg, SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51, 75 (Gummow J); Justice Susan Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ [2003] UNSWLawJl 10; (2003) 26 University of New South Wales Law Journal 210, 213–14, 217; Justice B M Selway, ‘Methodologies of 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 Constitutional 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 maintaining public confidence as a consideration affecting the High Court’s reasoning, see Selway, above n 104, 250.
[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, ‘Interpreting the Constitution in Its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677; Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (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: see ibid 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 Australian Constitutionalism’ [1993] UTasLawRw 16; (1993) 12 University of Tasmania Law Review 263, 285; Leighton McDonald, ‘The Denizens of Democracy: The High Court and the “Free Speech” Cases’ (1994) 5 Public 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 insignificant, as being nothing more than a belated recognition of a position which had prevailed since Federation by virtue of popular control of the constitutional amendment process: ibid 10.
[112] [1920] HCA 54; (1920) 28 CLR 129.
[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] HCA 26; (1947) 74 CLR 31; R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 (‘Boilermakers’ Case’); Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465; Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.
[116] At the 1891 Convention, Clark conceded that ‘I do not expect my ideals to be realised in the federal constitution about to be framed’: Official Report of the National Australasian Convention Debates, Sydney, 11 March 1891, 242 (Andrew Inglis Clark).
[117] See generally George Williams, above n 13, ch 2; John Williams, above n 12; Hilary Charlesworth, ‘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.
[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 Impact of 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 Constitutional 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] SydLawRw 2; (2001) 23 Sydney Law Review 19, 32–40. See also Leslie Zines, ‘A Judicially Created Bill of Rights?’ [1994] SydLawRw 14; (1994) 16 Sydney Law Review 166, 182.
[122] Street [1989] HCA 53; (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 the separate 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 in the Court’s newly engineered s 92 test to harmonise that aspect of the doctrine with an overarching, and distinctly modern, conception of discrimination. For a discussion in relation to Gaudron and 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 Jurisprudence: The Case for Improper Purpose as the Touchstone’ (2005) 33 Federal Law Review 445, 461.
[123] [1988] HCA 18; (1988) 165 CLR 360.
[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] HCA 18; (1988) 165 CLR 360; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322.
[126] See, eg, Street [1989] HCA 53; (1989) 168 CLR 461, 503 (Brennan J): ‘The object of s 92 is to secure the freedom 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] HCA 57; (2000) 204 CLR 82, 132–3; Kirby, above n 87.
[130] See, eg, Pierce, above n 6.
[131] This is a widely shared view: see, eg, Selway, above n 104, 236–7; Sir Anthony Mason, ‘Trends in Constitutional Interpretation’ [1995] UNSWLawJl 13; (1995) 18 University of New South Wales Law Journal 237, 249.
[132] [1994] HCA 46; (1994) 182 CLR 104.
[133] [1997] HCA 25; (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] MelbULawRw 13; (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] MelbULawRw 26; (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] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24. Cf Detmold, above n 9, 232.
[136] [1997] HCA 27; (1997) 190 CLR 1.
[137] See especially ibid 63–7 (Dawson J), 141–2 (McHugh J), 154–5 (Gummow J); Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby 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, ‘Sweedman v Transport Accident Commission’, above n 72, 371–2.
[139] See Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.
[140] Douglas Laycock, ‘Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law’ (1992) 92 Columbia Law Review 249, 264.
[141] Ibid 264, 273.
[142] See, eg, Geoffrey Bolton, ‘The Civil War We Never Had’ (Paper presented at the Third Conference of The Samuel Griffith Society, Fremantle, 5–6 November 1993) 50; Campbell Sharman, ‘Secession and Federalism’ (Paper presented at the Third Conference of The Samuel Griffith Society, Fremantle, 5–6 November 1993) 56.
[143] See Street [1989] HCA 53; (1989) 168 CLR 461, 489–92 (Mason CJ), 548–9 (Dawson J), 582–4 (McHugh J).
[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.
[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 not sufficiently 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 Discrimination’, above n 28.
[149] In Street [1989] HCA 53; (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 and comparable in light of the several references to European discrimination jurisprudence in some of the judgments in Street: see, eg, Street [1989] HCA 53; (1989) 168 CLR 461, 571 (Gaudron J). More generally, some members of the Mason Court turned to European constitutional jurisprudence as a source of guidance, particularly in contexts concerned with the protection of individual rights and consequent limits on government power: see, eg, Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 307 (Mason CJ and McHugh J); Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 130 (Mason CJ, Toohey and Gaudron JJ); Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272, 325 (Brennan J).
[151] (C-415/93) [1995] ECR I-4291.
[152] On the unhelpfulness of European Community law in the s 92 context, see Simpson, ‘Grounding the High Court’s Modern Section 92 Jurisprudence’, above n 122, 477–8.
[153] [1948] USSC 105; 334 US 385, 395 (Vinson CJ for the Court) (1948).
[154] Ibid 396.
[155] See, eg, Tribe, above n 145, 1257, 1269.
[156] [1978] USSC 82; 436 US 371 (1978).
[157] Ibid 383 (Blackmun J).
[158] See, eg, Supreme Court of New Hampshire v Piper[1985] USSC 49; , 470 US 274 (1985) — a case that attracted the High Court’s attention in Street — where a lawyer’s capacity to practise her profession was considered 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).
[160] [1989] HCA 53; (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 significant 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] HCA 53; (1989) 168 CLR 461, 491–2 (Mason CJ), 546 (Dawson J), 584–5 (McHugh J).
[165] [1938] USSC 104; 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[1975] USSC 54; , 420 US 656, 662 (Marshall J for the Court) (1975); John Hart Ely, Democracy and Distrust: A Theory 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: The Framers’ Vision of the High Court as Interpreter of the Constitution’ in Peter Cane (ed), Centenary 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 and Ernest A Young, ‘Federalism and the Double Standard of Judicial Review’ (2001) 51 Duke Law Journal 75.
[169] [1989] HCA 53; (1989) 168 CLR 461, 505, 514.
[170] Ibid 514.
[171] See Washington v Davis[1976] USSC 107; , 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.