Henry v Boehm

[1973] HCA 32

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Menzies, Gibbs and Stephen JJ.

HENRY v. BOEHM.

(1973) 128 CLR 482

30 August 1973

Constitional Law (Cth)

Constitutional Law (Cth)—Resident of one State subject to disability or discrimination in another State on ground of residence—Discrimination—Residence—Rules of Supreme Court—Admission to practise—Persons previously admitted elsewhere—Requirement of period of residence in State before admission to practise as person admitted elsewhere—Validity—Rules of Court Regulating the Admission of Practitioners, 1955-1972 (S.A.) rr. 27, 28—The Constitution (63 &64 Vict. c. 12), s. 117.

Decisions

August 30.
The following written judgments were delivered:- BARWICK C.J. Section 117 of the Australian Constitution provides:

"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 such other State." (at p485)

2. The plaintiff in this action claims that rr. 27 (1) and 28 (2) of the Rules of Court Regulating the Admission of Practitioners, 1955-1972 made by the Chief Justice and Judges of the Supreme Court of South Australia are inapplicable to him, as a resident of the State of Victoria because they infringe the terms of s. 117. The question whether this is so or not is raised by demurrer in the action which the plaintiff has instituted against the members of the Board of Examiners of the Supreme Court of South Australia and the State of South Australia. (at p485)

3. The plaintiff was admitted to practise as a barrister and solicitor by the Supreme Court of Victoria in 1957 and holds a current practising certificate under the Legal Profession Practice Act 1958 (as amended) of that State. He resides at 48 Parkmore Road, East Bentleigh in the State of Victoria and carries on the practice of a barrister and solicitor in the City of Melbourne. We are assured by the plaintiff's statement of claim that neither Bentleigh nor Melbourne is within fifty miles of the boundary between the State of Victoria and the State of South Australia. Thus an exemption from the provisions of r. 27 is not available to the plaintiff. See r. 27 (2) (ii). (at p485)

4. Rule 5 (1) of the Rules of Court includes amongst those eligible for admission as a practitioner in South Australia a barrister or solicitor of the Supreme Court of a State whom the Board of Examiners of the Supreme Court of South Australia think by reason of legal training and experience to be a fit and proper person to be admitted: such a person is included by the Rules in the description of "an applicant previously admitted elsewhere" -see r. 5 (2). Rules 27 and 28 provide as follows:

"27. (1) An applicant previously admitted elsewhere shall reside for at least three calendar months in the State continuously and immediately preceding the filing of his notice of application for admission. (2) This rule shall not apply to an applicant who satisfies the Board of Examiners - (i) that he ordinarily resides in and is domiciled in this State; or (ii) (a) that he is admitted as a solicitor in New South Wales, Victoria, Queensland or Western Australia; and (b) ordinarily resides and carries on practice as a

solicitor within 50 miles of the boundary between this State and the State in which he practices; and (c) that a practitioner of this State is eligible for

admission in the State in which he practises to the same, or a corresponding extent as practitioners of his State are admitted in this State in accordance with this sub-rule. 28. (1) An applicant previously admitted elsewhere shall, in the first place, be admitted conditionally only for a period of one year. (2) After the expiration of that period the applicant may be granted absolute admission if he satisfies the Court by affidavit that since his conditional admission, and until the date of the application for the order absolute, he has continuously resided in the State, and has not pursued any occupation or business other than the proper business of a practitioner. (3) This Rule shall not apply to any applicant who does not require the residential qualification prescribed by the preceding Rule."

(at p486)

5. The effect of these rules is that a person who falls within the description of "an applicant previously admitted elsewhere" and who is not exempt by r. 27 (2) from the provisions of r. 27 (1) and from those of r. 28, no matter which his State of residence, must have resided continuously in the State of South Australia for the period of three months immediately preceding the filing of his application for admission. Further, he must reside in the State of South Australia continuously for the period of one year during which he will have been conditionally admitted. Quite clearly, a resident of South Australia within the meaning of s. 117 who had qualified outside that State but was not domiciled there would be required to reside there for the specified three months; and subsequently during the period of his conditional admission. Thus the plaintiff, being a resident of Victoria within the meaning of s. 117, would be liable to observe in South Australia exactly the same provisions as he would if he were a resident of South Australia. (at p487)

6. Whilst it might have been thought that such a provision in the Constitution as s. 117 would be a substantial aid to the unity of citizenship throughout Australia, it is expressed in precise and narrow terms representing a compromise of competing views amongst those responsible for the drafting of the Constitution. There is no reason to refer here to the various possible forms of such a section as s. 117 which were considered during the Conventions or to contrast s. 117 with the constitutional provisions of other countries. We are here concerned only with the application of the actual words of the Constitution properly construed as in an organic instrument. (at p487)

7. Section 117 by its terms assumes that it can be predicated of an Australian, a subject of the Queen, at a given time that he is resident in a State of Australia. The Constitution does not speak of citizens. In the preamble in covering cl. 5 and in s. 24 it speaks of "the people of the States". Section 117 speaks of a "subject of the Queen resident in any State" and s. 75 (iv) speaks of "residents of different States". This is perhaps understandable when it is remembered that the federating colonies were merely self-governing colonies within the British Empire in contrast with the American States who at the time of entering the American Union were independent sovereign States. (at p487)

8. The concept of a resident of a State involves in my opinion some degree of permanence of residence and of identity by reason thereof with a State. Ordinarily, the place where a person has his home, without having acquired a domicile in that place by origin or by choice, will be the place where for the purposes of s. 117 that person will be resident. There may be lesser degrees of permanence of residence or of identity through residence which will satisfy the concept of residence in s. 117. (at p487)

9. Section 117 contemplates by its terms the case of a resident of a State being in another State without having lost his residence in the first-mentioned State. The rule established by the section is that, whilst remaining a resident of the first-mentioned State he will not, whilst in the second State, be subject to any disability or discrimination to which he would not be subject if he were a resident of that second State. That is to say the Constitutional prohibition is against the imposition by a State of any disability or discrimination based on the fact that the person subject to it is a resident of another State and to which a resident of the legislating State is not equally subject. (at p487)

10. It is noticeable that the section in terms deals only with disability or discrimination: rights are not involved except in so far as the fact of a right may effect a disability or discrimination. The section does not require that there shall be no disability or discrimination but merely that any disability or discrimination shall be imposed indifferently without regard to residence in another State. Griffith C.J., in Davies and Jones v. Western Australia (1904) 2 CLR 29 seems to consider that if residence of any kind in a State was made the basis of a privilege in a State the State law must accord the like privilege to persons having residence of the same kind in another State (1904) 2 CLR, at p 39 . (at p488)

11. I find difficulty in fully accepting this proposition. It seems to me to impose on a legislating State too large a limitation. I prefer the opinion expressed by Barton J. which I later quote. But, assuming it to be correct, it does not deny the view of the section which I have taken. There is therefore no reason for me fully to explore the implication of the Chief Justice's views. (at p488)

12. It has been decided that a law based, either exclusively or partly, on the domicile of a person will not offend s. 117, see Davies and Jones v. Western Australia, per Barton J. (1904) 2 CLR, at p 47 : "It is discrimination on the sole ground of residence outside the legislating State that the Constitution aims at in the 117th section". Consequently, the exemption of a person, resident and domiciled in the State of South Australia which r. 27 (2) (i) effects, affords no reason to conclude that s. 117 has been infringed; that is to say, no discrimination is made by the rules on the basis of residence alone. (at p488)

13. Some criticism has been offered of the decision in Davies and Jones v. Western Australia (1904) 2 CLR 29 to the effect that it was narrowly legalistic and overlooked the fact that residence as a factor is necessarily involved in domicile. But the criticism overlooks domicile of origin, in which residence at the place of the domicile is unnecessary, and that, even though residence of some kind may be involved in the establishment of a domicile of choice, there is no need for the domiciliary in order to maintain that domicile to continue to reside in the place of the domicile at or for any particular time. Further, the criticism does not observe the narrowness of the expression of s. 117. It is undoubtedly built on the concept of residence and not on that of domicile. Having considered the judgments and the criticism, I respectfully agree with the conclusions reached by the Court. (at p488)

14. Section 117 relates to disability or discrimination imposed or created by legislation. At least prima facie therefore being a resident of another State must be made by the law the basis of the imposition or creation of the disability or discrimination. But, of course, the necessary direct effect of the operation of a statute or statutory provision according to its true construction must be regarded in considering whether the law does make residence out of the State a criterion of its operation. Here, quite clearly in my opinion, the rules do not in terms make the fact of being an out-of-State resident the basis of their operation. (at p489)

15. The plaintiff's submission however is that a resident of Victoria must cease to be a resident of that State in order to comply with the condition of admission imposed by r. 27 (1) and that the necessity to do so is not something which would be required of him if he were a resident of South Australia. Thus it is said the rules for that reason offend the Constitutional provision. (at p489)

16. But, as I have pointed out, a person resident, but not domiciled in, South Australia, temporarily absent from that State, perhaps to obtain or complete his out of State qualification, if qualified out of the State would be in precisely the same situation as the plaintiff. Equally after conditional admission, the resident of South Australia must physically reside there for the requisite period of one year. The rules themselves make no distinction between those who may happen already to be resident in South Australia and those who do not, where each has qualified elsewhere than in South Australia. (at p489)

17. It seems to me that it was fundamental to the plaintiff's argument that a resident of a State within the meaning of that expression in s. 117, cannot reside elsewhere than in that State for any substantial period of time without necessarily ceasing to be relevantly a resident of that State. In my opinion, as indeed I have earlier said, s. 117 seems to be built on the concept that by reason of some degree of permanence of residence a subject of the Queen has become and is qualified for the purposes of this section as a "resident in any State". In this respect I do not accept the view that a person who happens at any moment to reside in a State is therefore for that reason a resident of that State. Section 117 appears to be dealing with the case of a person who not being a resident of the legislating State, is present in it. He may not whilst there be subject to any disability or discrimination because he is a resident in another State. It follows that a person may reside pro tem in one State while being a resident of another. A person who may thus properly be said to be a resident of a State does not in my opinion cease to be such if he resides out of that State with no intention of abandoning his "residence" there but for some purpose quite consistent with the maintenance of his State residence. Thus, in my opinion, the plaintiff, a resident of Victoria, would not cease to be resident in Victoria within the meaning of that description in s. 117 if he resided in South Australia merely for the purposes of his admission as a practitioner in that State. The Rules, in my opinion, do not require him to become a resident of South Australia or to abandon Victoria as his State of residence. But perhaps, more relevantly the rules do not lay any disability or discrimination upon the plaintiff because he is a resident of Victoria. In other words, residence is not made the basis of any disability or discrimination let alone any disability or discrimination to which a person resident in South Australia is not equally subject. In the words of the section, the plaintiff is not, in my opinion, subjected by the rules to any disability or discrimination which would not equally apply to him if he were a resident of South Australia. (at p490)

18. In my opinion, the demurrer should be allowed. (at p490)

McTIERNAN J. I have had the advantage of reading and considering the judgment of the Chief Justice which he has just handed down and I entirely agree with it. (at p490)

MENZIES J. Section 117 of the Australian Constitution denies that a subject of the Queen resident in one Australian State can be subjected to any disability or discrimination in another State because he does not reside there. The section does not give a person an advantage in a State because he resides in another State; it merely prevents such a person from being put at a disadvantage by reason of his non-residence. For instance, he cannot be taxed at a higher rate than would be applicable to him were he a resident. He cannot be by law excluded from attendance at a State university because he is not a resident of the State. The section would not, however, invalidate, in relation to a person resident in another State, every State law requiring residence at a particular place for certain purposes. Thus a non-resident could not complain of a State law requiring the holder of a victualler's licence to reside at his licensed premises. If a person resident in another State were to accept a licence on such terms he would run the risk of losing his licence by non-compliance with its terms. Such a law would operate exactly in the same way upon any licensed victualler in the State in which his hotel is situated regardless of where he resided before becoming a licensed victualler. It is the operation of the law to which attention must be paid, not to the remoter consequence of complying with the law that operates uniformly regardless of the State in which a person happens to be resident at a particular time. In the instance taken it would be without significance that a person becoming a victualler might have to leave his residence in another State. (at p491)

2. Furthermore, the conception of "residing" for the purposes of s.117 is not one that excludes temporary absence from the State of residence. A person does not cease to be resident in one State by crossing the border into another State where he is not resident. Indeed, a resident of a State could, without losing that residence, live in another State for a time. A person resides in a State where his home is for the time being, notwithstanding that he may from time to time be away from home. (at p491)

3. Accordingly, a State law requiring the presence in a State of some person seeking an advantage in that State is not inevitably in conflict with s. 117. (at p491)

4. Subject to certain exceptions, a barrister and solicitor of the Supreme Court of a State other than South Australia is eligible for admission as a barrister and solicitor of the Supreme Court of South Australia by virtue of his previous admission only if he "shall reside for at least three calendar months in the State continuously and immediately preceding the filing of his notice of application for admission". If such a person is admitted, he is admitted conditionally for one year and is only granted absolute admission if, after his admission, "he has continuously resided in the State and has not pursued any occupation or business other than the proper business of a practitioner". (at p491)

5. The restrictions just mentioned apply to any person seeking admission by virtue of a previous admission elsewhere, including persons resident in South Australia unless such persons are also domiciled in that State. These restrictions are to be found in the Supreme Court Admission Rules of the State of South Australia and the question is whether the plaintiff, a barrister and solicitor of the Supreme Court of Victoria who resides and practices in Melbourne, is entitled to a declaration that the foregoing restrictions upon his admission to practice as a barrister and solicitor of the Supreme Court of South Australia are contrary to s. 117 and that the rules are to the extent invalid. (at p491)

6. It seems to me that the plaintiff would be subject to exactly the same restrictions of which he now complains were he a resident of South Australia but not domiciled there. He would still have to reside in South Australia continuously for the three months prior to his application and he would not be absolutely admitted except upon the fulfilment of the conditions already stated. (at p492)

7. For the plaintiff it is said that if he were resident in South Australia the restrictions to which I have referred would be merely nominal for he would only have to continue his residence in that State. This is not strictly accurate because during his year of probation he would have to refrain from pursuing any occupation or business other than that of a practitioner, but for present purposes this further limitation may be disregarded. The critical questions are then whether the requirements of continuous residence in South Australia are different when applied to him as a resident of Victoria than they would be if applied to him as a resident of South Australia and whether such difference as there is amounts to discrimination. As has already been stated, the requirement is, in each case, for continuous residence in South Australia for the periods mentioned: resident or non-resident he must stay in South Australia. (at p492)

8. It is true that the restrictions do put those seeking admission as barristers of the Supreme Court of South Australia, by virtue of admission elsewhere wherever they reside, under disabilities not shared by those who qualify for admission on other grounds, but the restrictions operate uniformly upon those subject to them wherever their residence. (at p492)

9. The contention to which counsel for the plaintiff returned again and again in the course of argument is that the rules would require the plaintiff, a resident of Victoria, to go to South Australia and reside there, whereas they would operate differently if he were already a resident of South Australia. It is not, however, any part of the operation of the rules that a person seeking admission must give up his residence in another State and go to South Australia, notwithstanding that, in certain circumstances, a remote consequence of the rules would mean a change of residence. A resident of Victoria might, for instance, have lived in South Australia for a month before he decided to make an application for admission there. In such a case, although still a resident of Victoria, the applicant would be in exactly the same position as if he were a resident of South Australia. He would have to stay there for a further fifteen months. Indeed, at the basis of the argument for the plaintiff was the assumption that a person cannot live in one State while being resident in another State. It may be that s. 117 assumes that a person is resident in one State and not in two or more States, but, be that as it may, the word "resident" does not carry any implication that a person may not be absent. The requirement of residence in the rules is, however, different. The rules speak of "residing ... continuously" and in so doing impose a real limitation upon a person resident in South Australia. Such a person, having been admitted in Victoria, who spent some part of the three months prior to his application for admission as a barrister and solicitor of the Supreme Court of South Australia out of that State, would not comply with the rules, notwithstanding that during the whole of the three months he would have remained a resident of South Australia for the purposes of s. 117. To take the instant case, the plaintiff could qualify for conditional admission in South Australia while remaining a resident of Victoria for the purposes of s. 117 and for other purposes, notwithstanding that he was living in South Australia for the three months prior to his admission. In short, a person could reside continuously in South Australia for the purposes of the rules while still remaining a resident of Victoria. It is this continuous residence that the rules require whether the person applying by virtue of a previous admission is resident in South Australia or in another State. (at p493)

10. Counsel for the plaintiff relied heavily upon an observation of Griffith C.J. in Davies and Jones v. Western Australia (1904) 2 CLR, at p 39 that the word "resident" in s. 117 "must be construed distributively, as applying to any kind of residence which a State may attempt to make a basis of discrimination". If by this statement it is meant that s. 117 denies operation to any State law which in any way effects a discrimination against a subject of the Queen on the basis of out of State residence, of course, I agree with it. If it suggests that, in some way or other, s. 117 is to be construed by reference to actual State laws, I do not find it helpful. It is only laws effecting a disability or discrimination upon or against a person resident in one State by reason only of his non-residence in another State that are condemned by s. 117. That is the decision in Davies and Jones v. Western Australia (1904) 2 CLR 29 . Whether the rules operate to impose such a disability or discrimination is the inquiry here. To require of applicants by virtue of a previous admission - residents and non-residents alike - continuous residence in a State for a period is to impose a common restriction which does not put a non-resident under a disability or expose him to discrimination that would not apply if he were a resident. (at p493)

11. Accordingly, in my opinion, the Rules do not subject the plaintiff to any disability or discrimination which would not be equally applicable to him if he were a resident of South Australia rather than a resident of Victoria. (at p494)

12. In my opinion the demurrer should be allowed. (at p494)

GIBBS J. The qualifications for admission as a practitioner of the Supreme Court of South Australia are laid down by the Supreme Court Admission Rules of that State. Persons eligible for admission fall into two main classes: first, those who have served articles of clerkship in South Australia and have passed or been credited with the examinations prescribed by the rules, and secondly, those who have been admitted as barristers (or advocates) or solicitors in England, Scotland, Northern Ireland or any "reciprocating part" of the British Commonwealth and those barristers or solicitors of the Supreme Court of a State or Territory of the Commonwealth of Australia who are in the opinion of the Board of Examiners and of the Court by reason of legal training and experience fit and proper persons to be admitted. A person who falls into the second class is described in the rules as "an applicant previously admitted elsewhere" and an application for admission by such a person is subject (inter alia) to rr. 27 and 28, which read as follows:

"27. (1) An applicant previously admitted elsewhere shall reside for at least three calendar months in the State continuously and immediately preceding the filing of his notice of application for admission. (2) This rule shall not apply to an applicant who satisfies the Board of Examiners - (i) that he ordinarily resides in and is domiciled in this State; or (ii) (a) that he is admitted as a solicitor in New South Wales, Victoria, Queensland or Western Australia; and (b) ordinarily resides and carries on practice as a

solicitor within 50 miles of the boundary between this State and the State in which he practises; and (c) that a practitioner of this State is eligible for

admission in the State in which he practises to the same, or a corresponding extent as practitioners of his State are admitted in this State in accordance with this sub-rule. 28. (1) An applicant previously admitted elsewhere shall, in the first place, be admitted conditionally only for a period of one year. (2) After the expiration of that period the applicant may be granted absolute admission if he satisfies the Court by affidavit that since his conditional admission, and until the date of the application for the order absolute, he has continuously resided in the State, and has not pursued any occupation or business other than the proper business of a practitioner. (3) This Rule shall not apply to any applicant who does not require the residential qualification prescribed by the preceding Rule."

The question for decision in the present case is whether r. 27 (1) and r. 28 (2), in so far as they apply to an applicant who is a subject of the Queen resident in a State other than South Australia, contravene s. 117 of the Constitution and are for that reason invalid. That section provides:

"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 such other State." (at p495)

2. Section 117 imposes a limitation on the powers of the States, and, it would appear (although it is unnecessary here to consider the question), upon the power of the Commonwealth as well. No doubt its object, like those of other sections such as ss. 90, 92 and 118, was to make federation fully effective. Speaking generally, it was intended by the enactment of s. 117 to secure a measure of equality for the residents of the various States, and to ensure that a resident of one State (provided that he was a British subject) should not find that in another State he was relegated to a status inferior to that of the residents of that other State. However, the precise nature and extent of the constitutional guarantee which s. 117 affords, and of the corresponding restraint on power which it imposes, must depend not upon general theories as to the broad purposes of the provision, but upon the actual language of the section itself. Moreover, in deciding this case it is unnecessary to attempt to settle all the questions raised by the section which as yet remain unresolved; it is enough to consider the application of the section to the particular statutory provisions now sought to be impugned. It is therefore unnecessary to express any view on the question whether the section would prohibit a State from according a special privilege, such as free hospital treatment or free education, to its own residents, who, perhaps, through the taxes they paid to the State were assisting to augment the funds which served to pay the cost of providing the privilege. The dicta of Griffith C.J. and O'Connor J. in Davies and Jones v. Western Australia (1904) 2 CLR 29, at pp 38-39, 48 , suggest that this question should be answered in the affirmative, but whether those dicta are correct need not now be decided. It is also unnecessary to mention again that the protection of the section is confined to British subjects. (at p496)

3. One thing that is clear from the words of the section itself, and from the decision in Davies and Jones v. Western Australia (1904) 2 CLR 29 , is that s. 117 does not prohibit discrimination generally. A law of one State will be valid notwithstanding that it subjects a person who is resident in another State to a disability or discrimination, provided that the disability or discrimination would be equally applicable to that person if he were resident in the former State. What the section proscribes is a disability or discrimination based solely on the ground of residence in another State: Davies and Jones v. Western Australia, per Barton J. (1904) 2 CLR, at p 47 , and per O'Connor J. (1904) 2 CLR, at p 49 . It follows that a discrimination in favour of a person who not only resides within the State but also satisfies some additional condition or requirement would not infringe the constitutional guarantee (at least, according to O'Connor J. in Davies and Jones v. Western Australia (1904) 2 CLR, at p 53 , if that other condition or requirement was substantial, by which it may have been meant that the imposition of the additional condition or requirement should not have been a merely colourable attempt to disguise the fact that the discrimination was really based on residence alone). For example, a State could validly give special taxation concessions to residents of particular areas, such as residents in the tropics. Such a law would effect a discrimination, but a person resident in another State who complained of it would be met with the answer that the law would be equally applicable to him if he were resident in the legislating State. Similarly, in my opinion if a State law discriminated between persons not because of residence alone but on the ground of residence for a specified period, it might again be said, if a person resident in another State complained of the law, that it would be equally applicable to him if he were resident in the State that had enacted the law. It is unnecessary to consider whether, in accordance with the suggestion made by O'Connor J., in some cases the specification of a period of residence might, having regard to the provisions of the statute as a whole, be treated as insubstantial or illusory so that in reality the law should be regarded as effecting a discrimination on the ground of residence alone. (at p496)

4. The word "resident" can be used in a variety of senses. The word appears in other section of the Constitution, ss. 34, 75 (iv) and 100, and although it is there used as a noun, whereas in s. 117 it is used as an adjective, it seems to me that in the latter section as well as in the earlier it connotes some idea of permanence: see Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe (1922) 31 CLR 290, at pp 295, 307-308, 327 and Coates v. Coates (1925) VLR 231, at p 235 . In their early Commentary on the Constitution, Quick and Garran said, at p. 960: "In this section" (117) "'a resident in any State' means a person who permanently lives in a State; one who is not a mere visitor or sojourner; one who by his continued residence in a State has become identified with it and is regarded as one of its people." This statement seems to me to give the general notion of the meaning of the word "resident" in s. 117, although the reference to permanence should not be thought to suggest that "resident" in the section means "domiciled", and the reference to "continued residence" does not mean that continuous physical presence within the State is necessary to make a person a "resident". In this regard I agree with the Full Court of the Supreme Court of Queensland in Commissioner of Taxes v. Parks (1933) St R Qd 306 , that the master of an inter-State trading vessel could be resident in New South Wales within the meaning of s. 117 notwithstanding that he was compelled by the exigencies of his avocation to be bodily absent from that State during the greater part of the year. (at p497)

5. Understood in the light of these observations, s. 117 does not in my opinion invalidate either of the rules now under attack. Rule 27 (1) applies to persons who are resident in South Australia as well as to those who are resident in any other State. It is obvious that "an applicant previously admitted elsewhere" will not necessarily be a person who resides outside South Australia. He may, for example, be a South Australian resident who has obtained his legal qualifications elsewhere. Whether he is a resident of South Australia or not he is required by r. 27 (1) to reside for at least three calendar months in the State continuously and immediately preceding the filing of his application for admission. Rule 27 draws a distinction between continuous residence (r. 27 (1)) and ordinary residence (r. 27 (2) ). Sub-rule (1) requires the applicant to be physically present in the State for a continuous period of three months, whether or not he ordinarily resides elsewhere. This requirement applies equally to applicants who are ordinarily resident in the State and to those who are not. A person ordinarily resident in South Australia would not satisfy the requirements of the rule if, for example, he had first moved into that State and established his home there less than three months before the date of filing his application or if, although at all times having his permanent home in the State, he was in fact absent from the State studying overseas during that three months' period. It was submitted that a resident of Victoria who wished to satisfy the rule would have to abandon for the time being his residence in Victoria whereas a resident of South Australia would merely continue his residence in that State, and that there was accordingly a discrimination based solely on residence. I cannot agree with this submission. In my opinion it is not right to say that the rule would require the Victorian to abandon his permanent residence in Victoria; what it requires is his physical presence in South Australia for the continuous period of three months. Exactly the same requirement is made of a South Australian resident. It is true that r. 27 does effect a discrimination, but that is brought about by sub-r. (2) and is clearly not based on residence alone. Sub-rule (2) discriminates in favour of two classes of persons. The first, dealt with by r. 27 (2) (i), comprises those who are ordinarily resident and domiciled in South Australia; Davies and Jones v. Western Australia (1904) 2 CLR 29 is an authority for the proposition that this is not a discrimination forbidden by s. 117. The second favoured class, mentioned in r. 27 (2) (ii), consists of certain solicitors who (inter alia) ordinarily reside and carry on practice within fifty miles of the boundary of South Australia. Again, clearly, a discrimination in favour of such a class is not based on residence alone. (at p498)

6. In my opinion no discrimination is effected by r. 28 (1). That sub-rule in itself effects no discrimination at all but imposes a condition upon the admission of all to whom it applies, whether resident in South Australia or not. Sub-rule (3) of r. 28 does bring about a discrimination in favour of the classes of persons mentioned in r. 27 (2), but for the reasons already given that is not a discrimination effected on the basis of residence alone. (at p498)

7. For these reasons it is my opinion that the operation of the rules in question does not subject a person resident in another State to a disability or discrimination which would not be equally applicable to him if he were resident in South Australia. In my opinion the rules do not contravene s. 117 of the Constitution and the demurrer should be allowed. (at p498)

STEPHEN J. In this action the plaintiff seeks declarations as to the partial invalidity of certain of the Supreme Court Admission Rules of the State of South Australia and does so in reliance upon their alleged contravention of s. 117 of the Constitution. (at p499)

2. The matter comes before this Court upon demurrer and all relevant facts are set out in the reasons for judgment of the Chief Justice. (at p499)

3. Section 117 is as follows:

"117. 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 such other State." (at p499)

4. The section thus is aimed at the imposition of what I shall, for the sake of brevity, call disadvantages upon subjects of the Queen resident in any State of the Commonwealth. However in any particular application of the section the class upon which immunity is conferred is restricted so as to exclude those subjects who are resident in the State whose laws are in question (the legislating State); only subjects resident in a State other than the legislating State will, in any particular instance, be in a position to claim the immunity conferred by s. 117 - Lee Fay v. Vincent (1908) 7 CLR 389 . The disadvantages which may not lawfully be imposed upon a member of this restricted class are those which would not be equally applicable to him if he were a subject resident in the legislating State. (at p499)

5. To learn whether any particular disadvantage falls within s. 117 it must be asked whether it is one which would not be "equally applicable" to the particular subject of the Queen were he what he is not, that is to say, were he in fact resident in the legislating State. Thus the disadvantages at which the section is aimed are those which depend for their operation upon the condition of not being resident in the legislating State; for the section to apply it must appear that were the particular subject of the Queen resident in the legislating State this fact would of itself either wholly remove the disability or discrimination or else so affect its application to him as to cause it no longer to be equally as applicable to him as it in fact is having regard to his actual circumstances of residence. As Barton J. said in Davies and Jones v. Western Australia (1904) 2 CLR 29, at p 47 , "it is discrimination on the sole ground of residence outside the legislating State that the Constitution aims at in the 117th section". (at p499)

6. Relevant disadvantages may be imposed directly, as in the case of a tax upon persons not resident in the legislating State. They may also take a less direct form, as when a tax is imposed upon all but subject to exemption or alleviation in favour of those resident in the legislating State; Davies and Jones v. Western Australia (1904) 2 CLR 29 provides an instance of the latter, although in that case it was held that because alleviation depended not merely upon residence in the legislating State but also upon domicile in that State s. 117 was inapplicable. Nor is the operation of s. 117 restricted to the imposition of burdens, fiscal or otherwise; exclusion from the opportunity of participating in benefits or of exercising rights will also constitute a "disability or discrimination" within s. 117 if imposed by reference to circumstances of residence: as Griffith C.J. said in Davies and Jones v. Western Australia (1904) 2 CLR, at p 38 , "whatever privileges are conferred upon residents of a State by its laws are to be taken to be equally conferred upon residents of other States". (at p500)

7. The question is, then, whether the present Admission Rules impose a relevant disadvantage by reference to circumstances of residence. Rule 5 (1) describes those persons eligible for admission as practitioners in South Australia and includes persons qualified as practitioners in other States or Territories of the Commonwealth. It may be observed in passing that it is curious that these Australian practitioners must satisfy the Board of Examiners and the Court that by reason of their legal training and experience they are fit and proper persons to be so admitted, whereas barristers or solicitors of England, Scotland and Northern Ireland are all eligible for admission in South Australia without any such scrutiny of their legal training or experience. (at p500)

8. Rule 5 (2) defines as "an applicant previously admitted elsewhere" all those persons made eligible for admission by reason of inter-State or overseas admissions and in doing so qualifies their eligibility for admission in South Australia by making applicable to them rr. 26, 27 and 28, which apply only to applicants previously admitted elsewhere. Rule 26 (a) requires of such applicants the filing of certain documents which, in the forms prescribed, give effect, generally speaking, to the requirement of r. 27 (1) that such an applicant should "reside for at least three calendar months in the State continuously and immediately preceding" his application for admission. Rule 27 (2) exempts from this requirement of residence an applicant who either ordinarily resides in and is domiciled in South Australia or, being a solicitor of an adjoining State, ordinarily resides and carries on practice within fifty miles of the South Australian border and in a State which gives to South Australian practitioners what may loosely be called reciprocal admission rights. (at p501)

9. Rule 28 then imposes a further residential requirement upon an applicant previously admitted elsewhere; his admission to practice is to be conditional only for a period of one year, after which he may be granted absolute admission only if he satisfies the Court that during that first year "he has continuously resided in the State and has not pursued any occupation or business other than the proper business of a practitioner". (at p501)

10. The present plaintiff, a Victorian practitioner residing and practising in Melbourne, will thus have to reside continuously in South Australia for three months before becoming eligible to apply for admission and then for a further period of one year after his conditional admission before he can be granted absolute admission as a practitioner in that State. The prescribed forms scheduled to the rules take the matter somewhat further; the certificate to accompany his application for admission contemplates, in par. 4, that during his first three months' period of residence in South Australia he will have been employed as a clerk to a local practitioner, although this is not stipulated in r. 27 (1). Rule 28 (2) , in prescribing, in the terms quoted in the preceding paragraph, the period of twelve months' residence after conditional admission, also appears to contemplate that that period will be spent in practice as a legal practitioner in South Australia. (at p501)

11. The practical effect of these requirements of residence in South Australia will no doubt be, in all but very exceptional cases, to compel an inter-State practitioner to give up his practice in that other State if he is to be admitted to practice in South Australia. (at p501)

12. How then does s. 117 bear upon the requirements of these rules; do they subject the plaintiff to any disability or discrimination which would not be equally applicable to him if he were resident in South Australia? To answer this question the process of comparison which the section calls for must be undertaken, the plaintiff's actual situation must be contrasted with a hypothetical one which differs from actuality only because it assumes the plaintiff to be a resident of South Australia; in making the comparison called for by s. 117 no departure from actuality is to be made other than this one, relating to the plaintiff's residence. Being thus resident in South Australia but having previously been admitted to practice in Victoria, his position when wishing to use that qualification in order to gain admission to practice in South Australia is to be contrasted with his position as it is in fact. (at p502)

13. The obvious difference between that hypothetical situation and the situation with which the plaintiff is in fact confronted is that were he already resident in South Australia he would not have to abandon his existing Victorian abode so as to reside continuously in South Australia, first for three months and then for a further twelve months. This difference arises because of the express requirements of the rules. If this may be said to be a "disability or discrimination" to which the plaintiff is subject by reason of his being "resident" in Victoria, using these words in the sense which they bear in s. 117, then that section will apply. (at p502)

14. It is, I think, no objection to the application of s. 117 that residents of South Australia seeking to be admitted to practice there in reliance upon the same inter-State qualifications as the plaintiff will be equally subject to the operation of rr. 27 and 28; nor that some such South Australian permanent residents might, when they wish to seek admission, happen to be absent from that State so that they, like the plaintiff, will have to journey to South Australia and may have to then live there for lengthy periods if, perhaps because their domicile is other than South Australian, they cannot take advantage of the exemption in r. 27 (2). If the comparison called for by the section is faithfully adhered to the possible situations of other persons is seen to be wholly irrelevant, the comparison to be made will ignore all actual residents (in whatever sense that term be used) of South Australia. This is because s. 117 does not concern itself with the making of any comparison between the situation of the plaintiff were he a resident of South Australia and the situation of other residents of that State. What s. 117 calls for is, instead, a comparison between the plaintiff's situation as it is in fact and as it would be were he a resident of South Australia. (at p502)

15. Moreover, I regard it as incorrect to say of a disadvantage that because it is the consequence of a requirement of universal application that disadvantage is equally applicable to all; if the discriminating factor relates to the personal attributes of individuals some only of whom possess those attributes then, while the requirement may be said to apply equally to all, the disadvantage will apply unequally for it will apply only to those who do not possess those attributes. Thus the Western Australian statute considered in Lee Fay v. Vincent (1908) 7 CLR 389 , and which prohibited persons of the Chinese or Asiatic race from being employed in a factory, could be said to apply equally to all, European and Asiatic factory workers alike, but the disadvantage it imposed was applicable only to the latter, the former being in the fortunate position of having satisfied the test of race which the Act imposed. (at p503)

16. Likewise in the case of an attribute which, unlike racial origin, is capable of alteration by voluntary act of the individual, albeit at the expense of conscience, property or convenience. For example faith, like residence, may be subject to change, a new faith being adopted by voluntary act. Suppose a constitutional provision that a person professing any faith should not be subject to any disadvantage which would not be equally applicable to him if he were of any other faith; suppose also a State law requiring the profession of a particular religion as a qualification for office. The requirement of that law would be uniform in its application to all aspirants to office but the disadvantage which it imposed upon those not of the favoured religion would be a disadvantage the nature of which might be characterized in terms of the violence done to conscience in having to abandon an existing religion and to adopt another in order to qualify for office. Likewise when s. 117 is invoked it cannot, I think, be any answer that a challenged statutory requirement as to residence applies equally to all, to those already resident within the legislating State as well as to those resident in other States; the disadvantage involved in compliance with the requirement of residence may nevertheless apply unequally. (at p503)

17. It might be contended that the residence required by the rules is of a different quality from that residence to which s. 117 refers, the latter involving a concept of permanence, such as is involved in the acquisition of a domicile of choice, but not requiring that continuity of physical presence which the Admission Rules call for. If this were so then the making of the relevant comparison indicated by s. 117 would not necessarily reveal the imposition upon the plaintiff of any disadvantage imposed by reference to residence because if, for the purpose of that section, the plaintiff were to be thought of as a resident in South Australia that residence would not necessarily produce automatic compliance with the residence requirements of the rules. A resident in South Australia in such a s. 117 sense might in fact frequently be absent from that State for long periods at a time; were he, in those circumstances, required by the rules continuously to reside in that State for the relevant three and twelve months' periods he might be said to be subjected to a disadvantage no less than that suffered by a Victorian resident. (at p503)

18. In Davies and Jones v. Western Australia, Griffith C.J. (1904) 2 CLR, at p 39 in effect answered such a contention by assigning to "resident" in s. 117 what he described as a distributive meaning so that it applied

"to any kind of residence which a State may attempt to make a basis of discrimination, so that, whatever that kind may be, the fact of residence of the same kind in another State entitles the person of whom it can be predicated to claim the privilege attempted to be conferred by the State law upon its own residents of that class."

I do not understand his Honour as there proposing an interpretation of "resident" in s. 117 which would give to it a fluctuating meaning dependant for its content, in any particular instance, upon the sense in which any State legislation to which s. 117 was sought to be applied might use "resident". On the contrary, his Honour was giving to "resident" in s. 117 a wide and comprehensive but unvarying meaning, wide enough to cover whatever type of residence State legislation may select as the criterion of discrimination. If this is indeed the proper meaning of "resident" in s. 117 then the forbidden criterion has been adopted in the Admission Rules. (at p504)

19. The two other members of the Court in Davies' Case (1904) 2 CLR 29 did not attempt to define the limits of the meaning of "resident" in s. 117, O'Connor J. (1904) 2 CLR, at p 53 expressly disavowing the task of determining "what are its limitations". This Court has not in any subsequent case considered in any detail the meaning of "resident" in s. 117 although passing reference was made to s. 117 in Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe (1922) 31 CLR 290, at pp 327, 330 . Howe's Case (1922) 31 CLR 290 is, however, of greater significance in the present case than is suggested by these passing references because of the consideration given by members of the Court to the meaning generally of "resident" and "residence". The Court was there concerned to determine whether a company could be a resident for the purposes of this Court's diversity jurisdiction, and both in the majority judgments and in those of the minority the meaning of "residents of different States" appearing in that section was the subject of close analysis, although always directed essentially to the question whether a corporation might be a resident for the purposes of s. 75 (iv). (at p504)

20. In the judgments of the majority "residents", used as it is in s. 75 (iv) as a noun substantive, was treated as involving a concept of permanent residence in a place (1922) 31 CLR, at p 295 , as designating the place where a person sleeps, finds shelter and has his home (1922) 31 CLR, at p 334 . The minority judgments refer to residence in s. 75 (iv) as involving a suggestion of State membership, of the status of being identified pre-eminently with some one State (1922) 31 CLR, at pp 308-309 , of attachment to or incorporation in the people of some one State (1922) 31 CLR, at p 340 . However, it was acknowledged by all that "resident" and "residence" were words the precise meaning of which depended very much upon the context in which they appeared (1922) 31 CLR esp, at pp 297, 299, 304, 335 and 337 . Thus Isaacs J. pointed out (1922) 31 CLR, at p 304 that it was not a term of art but rather a word of very flexible meaning acquiring from its surroundings whatever precision it had in any given case. (at p505)

21. In some of the judgments the expression "the right of a State or of the residents therein" in s. 100 was referred to and in their joint judgment (1922) 31 CLR, at p 299 , Knox C.J. and Gavan Duffy J. acknowledged that "residents" in that section might have a different meaning from that which it bore in s. 75 (iv). The other member of the majority, Higgins J., was rather more clearly of the view that it did have a different meaning in s. 100, suggesting that because, unlike s. 75 (iv), s. 100 was not concerned with the conferring of a right of suit but rather with negativing a right of government to interfere with the use of waters of rivers it might, in its use of "residents", refer to all those who were holders of land within the State in question. His Honour also regarded it as of significance that in s. 75 (iv) the phrase used was "residents of different States" whereas in s. 100 the wording was "residents therein"; the former phrase he took to involve some close connexion between the resident and the State, some "more intimate connexion with the State than 'residents therein' - in a State" (1922) 31 CLR, at p 335 . (at p505)

22. Section 117 is concerned with negativing a right on the part of a State to impose disadvantages upon individuals and it too employs the phrase "resident in" as distinct from "resident of" and is expressed in the adjectival form rather than using the noun substantive, a form said by the Chief Justice and Gavan Duffy J. (1922) 31 CLR, at p 295 to be capable of bearing a more extended meaning than is the noun substantive. (at p505)

23. It follows, I think, that not only will the established meaning of "residents" in s. 75 (iv) not necessarily bear upon the meaning of "resident" in s. 117 but that there are reasons for giving to the adjective "resident" in s. 117 a wider meaning than the noun "residents" in s. 75 (iv) tied, as the latter is, to the concept of a permanent home. The distinction already referred to between "resident of" and "resident in" does, I think, involve, in the case of the latter, less sense of identification as a matter of status with a particular State and a greater concern with the whereabouts of a person's present abode. (at p506)

24. Again, the phrases employed in s. 117 are unqualified ones, "resident in any State" and "resident in such other State"; there seems to me to be no reason for implying into the section some qualifying word, such as "permanently" so as thereby to limit meaning. As Higgins J. said in Howe's Case (1922) 31 CLR, at p 329 "'Residence' is a mere question of fact; citizenship has legal implications; domicile is an idea of law"; there is nothing in the words of s. 117 which would add to the simple factual concept of residence legal overtones of citizenship or of domicile. This is not a case in which the dictionary meaning of "resident" is of much help since it is clear that a selection may properly be made from within the whole range, from wide to narrow, of the meanings of the adjective "resident", the choice within that range being dependant upon context. (at p506)

25. It is, I think, important to bear in mind that s. 117 is both a provision of our federal Constitution and the chosen means by which future immunity from discriminatory laws of other States was granted to subjects of the Queen, thereby in some measure conferring equal standing within each State of the Commonwealth upon those subjects resident in any other of the federating States. In James v. The Commonwealth (1936) 55 CLR 1, at p 43 Lord Wright M.R. spoke of s. 117 as analagous to s. 92 and described it as providing a constitutional guarantee of equal right of all residents in all States. These considerations provide, to my mind, little encouragement to seek for any narrow definition of the designated beneficiaries of this constitutional guarantee of immunity. The immunity conferred by s. 117 is, in any event, quite a restricted one, limited to discrimination upon the sole ground of residence; further to confine it to only those discriminations which would be equally applicable were the subject of discrimination a person having his permanent home in the legislating State, so that very lengthy periods of actual residence in that State might be validly imposed upon subjects who retained their permanent residence in other States, so detracts from the effectiveness of this grant of immunity as to raise, at least in my mind, a very real doubt whether this can be the true meaning of the section. The various considerations to which I have already adverted satisfy me that it is not and that the wide meaning of "resident" adopted by Griffith C.J. as long ago as 1904 should be adhered to as giving to that word in s. 117 its true meaning and effect in the context in which it occurs. (at p507)

26. The American experience, if at all applicable in the interpretation of s. 117 in view of the different language of somewhat analogous provisions of the U.S. Constitution, suggests that in fields remote from the present, such as the exercise of rights of franchise at State elections, real difficulties may be experienced in seeking to apply the concepts involved in s. 117; these are problems properly to be left for another day. (at p507)

27. It will, of course, only be some circumstance properly capable of description as residence that will satisfy the requirements of the section, a mere transitory presence will not suffice. In the present case, it is both unnecessary and undesirable to seek to define in advance the precise breadth of meaning of "resident" in s. 117; it suffices to conclude, as I do, that the residence provisions of the Admission Rules do involve the imposition of a disadvantage by reference to the circumstance of being resident in a State, within the meaning of s. 117. The requirement of r. 27 (1), continuous residence for at least three months, and of r. 28 (1), continuous residence for a further twelve months, each prescribes a condition of living in South Australia for a substantial and unbroken period of time which readily conforms to one of the ordinary meanings of "resident", a meaning unconfined by concepts of permanency or of the location of the permanent home. (at p507)

28. I also conclude that these two rules do subject the plaintiff, resident in Victoria, to a disability or discrimination which would not be equally applicable to him if he were resident, in the sense indicated above, in South Australia. They require him to leave his established home in Victoria and to live continuously in South Australia for considerable periods of time. Were he resident, in the sense indicated above, in South Australia the requirement of the rules would bear quite differently and less onerously upon him; their precise effect in such a hypothetical situation cannot be predicated but at least it is clear that were he resident in South Australia the disability involved in lengthy residence away from Victoria would either be wholly absent or be substantially mitigated. (at p507)

29. There is one particular contention urged on behalf of the defendants to which I should shortly refer; it is that on the proper construction of r. 27 it is not concerned only with residence but also with domicile. It is said that when regard is had to sub-r. (2) (i), which exempts from the residence requirements applicants who ordinarily reside in and are domiciled in South Australia, it is apparent that the relevant discrimination is by reference to both residence and domicile, as it was in Davies and Jones v. Western Australia (1904) 2 CLR 29 and is therefore not struck at by s. 117. This contention mistakes the feature of the rules which attracts s. 117. It is not because those taking the benefit of sub-r. (2) (i) are treated more favourably than others that there is discrimination against these others, non-residents of South Australia; the discrimination is more fundamental, it arises from the very existence of a residence requirement. To superimpose upon that requirement an exemption in favour of a particular class neither removes that discrimination nor alters its character. (at p508)

30. The consequence is that rr. 27 and 28, to the extent to which they require periods of residence in South Australia as a prerequisite to conditional and to absolute admission, are invalid in their purported application to persons, such as the plaintiff, who are within the immunity conferred by s. 117. Although it is only in sub-r. (1) of r. 27 and sub-r. (2) of r. 28 that conditions of residence are imposed, the remaining paragraphs of these two rules are concerned only with carrying into effect the residence requirements of those two sub-rules and cannot stand, in their application to the plaintiff, if these two sub-rules go. The remainder of the Admission Rules may stand unaffected but rr. 27 and 28 and those portions of the scheduled forms which give effect to them are in my view invalid in so far as they purport to apply to subjects of the Queen resident in other States of the Commonwealth. I would overrule the demurrer and would dispose finally of the action by making appropriate declarations accordingly. (at p508)

Orders

Demurrer allowed with costs.