Street v Queensland Bar Association

[1989] HCA 53

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

STREET v. QUEENSLAND BAR ASSOCIATION

(1989) 168 CLR 461

16 November 1989

Constitutional 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 State Supreme Court—Legal practitioners—Admission to practice—Person previously admitted in another State—Requirement of residence in State and ceasing to practise in other State—Amended Rules requiring intention to practise principally in State—Conditional admission for one year—Absolute admission only if during conditional period person practised principally in State—Rules relating to the Admission of Barristers of the Supreme Court of Queensland, rr. 15, 15B 38(d)—The Constitution (63 and 64 Vict. c. 12), s. 117.

Decisions

MASON C.J. Mr Street is a barrister resident in New South Wales and admitted to practice as a barrister in the Supreme Courts of New South Wales, Victoria, South Australia and the Australian Capital Territory. He was refused admission as a barrister of the Supreme Court of Queensland on 22 May 1987. This refusal was based upon his failure to comply with two requirements which formed part of the Rules Relating to the Admission of Barristers of the Supreme Court of Queensland ("the Rules").

2. First, Mr Street intended to remain a resident of New South Wales notwithstanding that the necessary affidavit required him to state on which day he "arrived ... in the State of Queensland". This requirement is said to mean that the person seeking admission must be a resident of Queensland. Secondly, he did not cease practice in New South Wales, nor did he intend to do so. A statement that he ceased to do so was explicitly required to be made in the affidavit referred to above. Mr Street's intentions have not changed in the relevant respects.

3. The Full Court of the Supreme Court, having rejected argument based upon ss.92 and 117 of the Constitution to the effect that the requirements which Mr Street had failed to meet were invalid by reason of contravention of one or both of those provisions, ordered that Mr Street's application for admission to practice as a barrister in the Supreme Court of Queensland be refused. On 10 June 1987 Mr Street filed notice of an application to this Court for special leave to appeal from that decision. Before the application could be heard, the Governor in Council on 2 July 1987 amended the Rules. These amendments are described below. The Court subsequently adjourned the application until the present hearing.

4. Mr Street claims that he is unable to comply with the amended Rules without foregoing his place of residence in Sydney and his practice as a barrister in New South Wales. He contends that the amended Rules are in contravention of ss.92 and 117 of the Constitution for reasons similar to those that he advanced before the Supreme Court in relation to the Rules before they were amended. He has brought a second action, by way of stated case, which requires examination of the amended Rules.

5. The first question is whether the amendments of 2 July 1987 are retrospective in their application to Mr Street. If their effect is to preclude him from continuing to seek admission under the Rules as they stood when he initially sought admission, then the question whether the Full Court erred in its decision is not one appropriate for the grant of special leave to appeal, especially since the questions of general principle raised by the application for special leave are broadly the same as those raised by the stated case. If the amendments are not retrospective in their application to Mr Street, then those questions naturally arise in the context of Mr Street's application for admission and the case would be appropriate for the grant of special leave.

6. It is therefore necessary to consider s.20 of the Acts Interpretation Act 1954 (Q), which states:

"(1) Where any Act repeals or amends ... wholly or in part any former Act ..., then, unless the contrary intention appears, such repeal or amendment ... shall not - ... (c) Affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to such repeal or amendment ...; or

... (e) Affect any investigation, legal proceeding, or remedy in respect of any such right, interest, title, power, privilege, status (or) capacity ..."

7. Unless the contrary intention appears, "Act" extends to include Orders in Council: s.5(2). No contrary intention was suggested. Nor is there any "contrary intention" in the amending Order in Council for the purpose of s.20. The question then becomes whether on 2 July 1987 there existed in relation to Mr Street a right, interest, title, power or privilege within the meaning of s.20. It is not clear from the available materials to what extent Mr Street had complied with the Rules as they then stood. But in the Supreme Court, Connolly J. said that he was "in all respects qualified to be admitted as a barrister in Queensland, save that he intends to continue as a resident of New South Wales and has not ceased to practise and does not intend to cease to practise as a barrister of his State of residence". This statement strongly suggests that, had Mr Street's constitutional arguments prevailed, he would have been granted admission. The Full Court suggested no other impediment to admission. In view of the approach of the Full Court, it appears that the order for admission would have been no more than a formality had it accepted his arguments. If the Full Court was wrong in not doing so, then Mr Street was denied the right to admission, a right established by him and subject only to its formal recognition by the Supreme Court.

8. The grant of special leave to appeal is opposed on the ground that as the Rules were amended on 2 July 1987 the questions sought to be argued by Mr Street are no longer of general interest. The answer to that submission is that the questions sought to be argued are of general importance even though the actual decision in the appeal may not directly affect applications for admission under the amended Rules. Mr Street's case raises questions concerning the interpretation of ss.92 and 117 of the Constitution in the context of the admission to practice as a barrister in Queensland of a person admitted to practice as such in another State. The validity of the legislative exclusion from practice in Queensland of non-resident practitioners admitted to practice in other States is in itself a matter of public importance. In this situation the Court should not refuse to grant special leave when the applicant had a vested right under s.35 of the Judiciary Act 1903 (Cth) to apply for special leave to appeal when the Rules were amended. And I should point out that this Court's function is to determine whether the decision appealed from was correct when it was given: Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73; Mickelberg v. The Queen (1989) 63 ALJR 481; 86 ALR 321. The indications that the amendments are not retrospective in this case are sufficiently strong to warrant the grant of special leave. On this basis special leave to appeal should be granted. I shall therefore consider the appeal before turning to the stated case.

9. Prior to 2 July 1987, r.15 of the Rules stated as follows:

"Subject to the provisions of any Statute relating to admission and to the provisions of these Rules, every person applying to be admitted as a barrister shall:- ... (d) possess one or other of the following qualifications:-

(1) He shall have passed or be deemed to have passed at all stages as required under these Rules;

(2) He shall have obtained a degree in Law with prescribed or approved subjects at a University within the State of Queensland or other Australian University approved by the Board, not being an honorary degree, and shall have performed all necessary practical work to the satisfaction of the Board, and shall have passed Stage 6 within the meaning of Rule 32; or

(3) He shall have been duly admitted as a barrister-at-law or advocate in the United Kingdom; or

(4) He shall have been duly admitted as a barrister-at-law in New South Wales or as a barrister-at-law in the Dominion of New Zealand or as a barrister and solicitor in Victoria; provided that in the latter case proof be given that he has signed and remains upon the roll of counsel of that State, and provided that in any of the three cases mentioned in this paragraph it be established to the satisfaction of the Board, that the State in question, or the Dominion of New Zealand, as the case may be, grants reciprocity of admission to barristers-at-law of the Supreme Court of Queensland; or

(5) He shall have been duly admitted as a barrister or as a barrister and solicitor of any State other than Queensland, New South Wales and Victoria or of the Australian Capital Territory or of the Northern Territory, provided that it be established to the satisfaction of the Board that the State or Territory in question grants reciprocity of admission to barristers-at-law of the Supreme Court of Queensland, and provided that he shall in that State or Territory have been in actual practice for twelve months exclusively as a barrister. He shall undertake that on admission and while remaining on the roll of barristers of the Supreme Court of Queensland he shall not practise elsewhere as a solicitor; or

(6) He shall be a solicitor of the Supreme Court of Queensland having been five years in actual practice in Queensland; or

(7) He shall have obtained the degree of Bachelor of Arts (Law) (or the equivalent degree however entitled) with prescribed or approved subjects at the Queensland Institute of Technology, not being an honorary degree, and shall have performed all necessary practical work to the satisfaction of the Board, and shall have passed Stage 6 within the meaning of Rule 32."

Rule 38(d) stated that a person relying upon a previous admission was required to include in an affidavit the statements set out in Form 10, which provided, so far as is relevant:

"(6) That I ceased to practise as a barrister in (here set forth the dates when the applicant ceased to practise in the various Courts to which he has been admitted, and the nature of his employment hereafter.) (7) That I arrived on the day of , 19 , in the State of Queensland."

Although counsel contended otherwise, I do not regard the relevant parts of Form 10 as inconsistent with the Rules or beyond the scope authorized by them; r.38(d) clearly incorporates the terms of the Form by reference and is not merely procedural in nature.

10. I turn first to consider s.117 of the Constitution in its application to the impugned provisions. The section is in these terms:

"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."

11. This Court has twice considered this provision at length, first in Davies and Jones v. The State of Western Australia (1904) 2 CLR 29 and later in Henry v. Boehm (1973) 128 CLR 482. Counsel for Mr Street submitted that the Court should reconsider these decisions. It is convenient in the first instance to ascertain precisely what Davies and Jones and Henry v. Boehm decided.

12. In Davies and Jones rates of estate duty payable in relation to beneficiaries who were "persons bona fide residents of and domiciled in Western Australia" were reduced in comparison with those payable generally. The relevant beneficiary was neither a resident of, nor domiciled in, Western Australia. Had he been domiciled in Western Australia the result would arguably have been different, but, since he was not, the Court held that there was no discrimination between subjects of the King residing in Queensland and those residing in Western Australia. The beneficiary's individual circumstances determined the result. The relevant discrimination, which in the Court's view was on the basis of domicile, was not the mischief aimed at by s.117. Accordingly, the executors' action to obtain on behalf of the beneficiary the reduced rates of duty failed. Had the only effective discrimination been on grounds of residence, then s.117 would have applied to render it ineffective. Thus Barton J. stated that it is "discrimination on the sole ground of residence outside the legislating State that the Constitution aims at in the 117th section" (at p 47). Likewise, O'Connor J. (at p 49) considered that the section was directed to a disability or discrimination based solely on the ground of residence in another State. In this respect his Honour pointed out that the word "residence" had quite a different meaning from the word "domicile" in the Western Australian statute imposing estate duty. In the ultimate analysis Davies and Jones decided no more than that a disability or discrimination by reference to residence and domicile is not a discrimination which falls within the operation of s.117.

13. Henry v. Boehm stands as authority for the proposition that a requirement of continuous residence within South Australia for a period of time, on the part of a legal practitioner admitted to practice in another State, as a condition of entitlement to apply for admission as a legal practitioner within South Australia, was not a disability or discrimination falling within s.117. Barwick C.J., McTiernan, Menzies and Gibbs JJ., with Stephen J. dissenting, held that rr.27 and 28 of the Rules of Court Regulating the Admission of Practitioners 1955-1972 (SA) did not fall within the section. The Rules were 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; ...

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 day 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."

14. The argument in Henry v. Boehm was that the Rules discriminated against the plaintiff on account of his residence in Victoria because they required him to give up his residence in that State as a condition of practising in South Australia: see p 483. The majority met that argument with the proposition that the concept of "resident" in s.117 connotes a person whose residence is not merely temporary but has a degree of permanence about it: see pp 487, 489-490, 492-493, 496-497. The plaintiff's permanent residence in Victoria was not impeded. Consequently the Rules, by insisting on the plaintiff's temporary continuous presence in South Australia for three months under r.27 and twelve months under r.28, did not discriminate against his continuing residence in Victoria. The majority also concluded that the Rules did not subject the plaintiff to any disability or discrimination which would not equally apply to him if he were a resident of South Australia: see pp 490, 494, 498. This conclusion necessarily followed from the interpretation which the majority gave to the word "resident" in s.117 and from the consequential finding that the Rules did not require the plaintiff to abandon his residence in Victoria.

15. It seems that the ultimate finding that the Rules did not subject the plaintiff to any disability or discrimination which would not apply equally to him if he were a resident of the legislating State may have reflected a view on the part of one or more Justices that such a disability or discrimination would otherwise fall within the ambit of s.117. However, it is significant that Barwick C.J. (with whom McTiernan J. agreed) found it unnecessary to explore the implications of the view of Griffith C.J. in Davies and Jones (at p 39) 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. Whilst finding difficulty with this proposition, Barwick C.J. found no reason to determine its correctness. Nor did Gibbs J.: see pp 495-496. This suggests that the majority did not regard the meaning of "resident" as conclusive of the case.

16. Gibbs J. observed (at p 496) that O'Connor J., who referred in Davies and Jones (at p 53) to the imposition of "some other substantial condition or requirement", may have 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". Later Gibbs J. remarked (at p 496):

"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."

17. But the point remains that Henry v. Boehm decided that the suggested discrimination, ineligibility for admission in the absence of continuous "residence" in South Australia for the stipulated periods, was not within the operation of s.117 because all persons, whether permanently resident in South Australia or not, were subject to the requirements as to "residence". Stephen J., in his dissenting judgment, took issue on several grounds with this approach to the operation of s.117. Whereas the majority compared the situation of the out-of-State resident with that of actual residents of the legislating State, Stephen J. compared the actual situation of the out-of-State resident with his hypothetical situation were he a resident of the legislating State. His Honour observed (at p 501):

"... 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".

This comparison gave meaning to the section's central comparative words "if he were", rather than placing a strained meaning on the word "would" which is a term of emphasis but is in the subjunctive form appropriate to the hypothetical situation postulated. On this view the possible situation of other persons was "wholly irrelevant" (at p 502).

18. It followed that Stephen J. disagreed with the majority in another important respect, rejecting (at pp 502-503) the view that a disadvantage is equally applicable to all if it is the consequence of a requirement of universal application. As his Honour remarked (at p 502):

"(I)f 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."

So it is no answer that a challenged statutory requirement as to residence applies equally to all, to those resident in the legislating State as well as to those resident out of the State; the disadvantage involved in compliance with the requirement may nevertheless apply unequally (at p 503) by compelling the out-of-State resident to give up his place of abode in order to qualify for admission in the legislating State.

19. The final point of departure in the judgment of Stephen J. was that his Honour (at p 504) agreed with the "distributive" meaning assigned to "resident" in s.117 by Griffith C.J. in Davies and Jones (at p 39). There the Chief Justice applied the section:

"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".

20. There are powerful reasons for adopting this interpretation of "resident" in s.117. The very object of federation was to bring into existence one nation and one people. This section is one of the comparatively few provisions in the Constitution which was designed to enhance national unity and a real sense of national identity by eliminating disability or discrimination on account of residence in another State. In this respect the section should be seen as a counterpart to other provisions in the Constitution which prohibit discrimination between the States in matters of taxation, trade and finance (ss.51(ii), 92 and 99). In James v. The Commonwealth (1936) 55 CLR 1; (1936) AC 578 Lord Wright (at pp 43-44; p 614 of AC) regarded the section as analogous to s.92 and referred to it as providing a constitutional guarantee of equal rights of all residents in all States. And, although the language of s.117 differs from that of Art.IV s.2 of the United States Constitution, there can be no doubt that the American model had an influential impact on the framers of our Constitution, at least to the extent of illustrating the need for a provision which, by guaranteeing to out-of-State residents who were British subjects an individual right to non-discriminatory treatment, would bring into existence a national unity and a national sense of identity transcending colonial and State loyalties.

21. These considerations, as well as the use of the expression "resident in" rather than "resident of" (cf. ss.75(iv), 100; Henry v. Boehm, at pp 504-506), point to a liberal, rather than a narrow, interpretation of "resident" in s.117, an interpretation which will guarantee to the individual a right to non-discriminatory treatment in relation to all aspects of residence. Accordingly, I favour the "distributive" interpretation adopted by Griffith C.J. in Davies and Jones and Stephen J. in Henry v. Boehm in preference to that taken by the majority in the latter case. The assimilation of "resident" in s.117 to "permanent resident" is arbitrary in the sense that the word is capable of a variety of shades of meaning and there is nothing in the context to support the selection of a meaning which works the greatest restriction in the operation of the section.

22. Section 117 is contained in Ch.V of the Constitution, which is entitled "The States". Chapter V contains a miscellany of provisions, all of which, except s.116, relate to the States. Some of these sections (ss.114, 115, 116) expressly prohibit the States or the Commonwealth from doing certain things. Others (ss.119, 120) impose duties upon the States. Section 117 is strikingly different. It is not expressed in terms similar to those of the surrounding sections. Notably, it relates not to a State or the Commonwealth, but to a "subject of the Queen". Its form and language indicate that s.117 is directed towards individuals and their protection from disability or discrimination of the kind contemplated by the section, and that it is not, except to that extent, a restriction on State or Commonwealth legislative power. So a person not subjected to any relevant disability or discrimination by a particular law could not have that law held invalid by establishing that it subjects a third person to such a disability or discrimination; that circumstance would not lead to a striking down of the offending law. Conversely, a person who would, but for s.117, be so affected by the law is immune from its operation in so far as it subjects him to impermissible disability or discrimination, though the law itself remains valid in its application to persons who would not be so affected. Perhaps an enactment might be rendered wholly invalid by s.117 if it depended for its operation upon the imposition of a prohibited form of disability or discrimination, but that is not a question which I need to examine. Its only significance in the present case is that it may serve to explain references to the validity of the State legislation in Davies and Jones. These remarks are explicable on the basis that, had the Court equated domicile with residence or otherwise regarded domicile as within the province of s.117, the result would possibly have been to deny the validity of the offending enactment because it enacted a prohibited form of discrimination.

23. The preponderant weight of opinion denies the individual focus which Stephen J. gives to s.117. With the exception of his Honour's dissenting judgment in Henry v. Boehm, all the judgments in Davies and Jones and Henry v. Boehm insist on comparing the way in which the non-resident of the legislating State is affected by the law of that State with the way in which residents of that State are affected: Davies and Jones, per Griffith C.J. at p 39, Barton J. at p 45 and O'Connor J. at p 49; Henry v. Boehm, per Barwick C.J. at p 489, Menzies J. at pp 492-493 and Gibbs J. at p 496. This approach denies the individual focus of the section by addressing itself to the general range of circumstances in which the State law applies.

24. However, as Stephen J. points out, the terms of the section invite a comparison of the actual situation of the out-of-State resident with what it would be if he were a resident of the legislating State. The section does not invite a comparison between his actual situation and that of other residents of the legislating State. Such a comparison poses the question whether or not the law necessarily applies differently to residents of the legislating State. The answer to that question will almost invariably be in the negative due to the range of persons in differing situations within the legislating State and the fact that some of those persons will probably be affected by the law in the same manner as the out-of-State resident. Thus, the mode of comparison adopted in the decided cases, though not suggested by the terms of the section, has confined the operation of the constitutional guarantee. When that mode of comparison is combined with the assimilation of "resident" to "permanent resident", the effect has been to deprive the section of any significant utility.

25. Another difficulty with the existing interpretation of s.117 is that it appears to proceed according to a narrow view of what amounts to a disability or discrimination. The statement of Griffith C.J. in Davies and Jones (at p 39) that I have already quoted, which was endorsed by Stephen J. in Henry v. Boehm, like that of Barwick C.J. in Henry v. Boehm (at p 489), suggests that, in order to bring the section into operation, the State law must make the fact of being a resident in another State the criterion of the disability or discrimination. Again, this seems to be an unduly limiting notion. In terms, the section applies when a subject of the Queen, being an out-of-State resident, is subject to a disability or discrimination under State law. The section is not concerned with the form in which that law subjects the individual to the disability or discrimination. It is enough that the individual is subject to either of the two detriments, whatever the means by which this is brought about by State law. This approach to the interpretation of the section accords with the approach generally adopted in connection with statutes proscribing particular kinds of discrimination. They are either expressed or construed as proscribing an act or a law the effect of which is relevantly discriminatory: see, for example, Birmingham City Council v. Equal Opportunities Commission (1989) 2 WLR 520, at pp 525-526; (1989) 1 All ER 769, at p 774; Mandla v. Dowell Lee (1983) 2 AC 548; Ontario Human Rights Commission v. Simpsons-Sears Limited (1985) 2 SCR. 536. It would be surprising if it were otherwise, especially since such statutes are generally intended to provide relief from discrimination rather than to punish the discriminator: see Simpsons-Sears, at p 547. It would make little sense to deal with laws which have a discriminatory purpose and leave untouched laws which have a discriminatory effect.

26. Once this is recognized, it becomes all the more difficult to accept that the fact that a requirement as to residence is universal in its application is necessarily an answer to the operation of s.117. Such a requirement may have a discriminatory effect in relation to an out-of-State resident for the simple reason that it may apply unequally by subjecting him to a greater burden or disadvantage than that imposed on a resident of the legislating State. So to forbid all persons from wearing a turban is on its face a prohibition applicable to all persons without distinction, but in effect is a discrimination based upon religious grounds because its only impact will fall upon adherents of a creed or religion which requires the wearing of turbans: Mandla v. Dowell Lee; Bhinder v. Canadian National Railway Company (1985) 2 SCR 561. An examination of the effect of the relevant law is both necessary to avoid depriving s.117 of practical effect and consistent with its emphasis upon the position of the individual.

27. One further aspect of the section needs explanation. A disability or discrimination may still apply in theory after residence is changed, yet be so reduced in its impact as a result of the change that it is rendered illusory. Stephen J. acknowledged this possibility and indeed that recognition was central to his decision. He stated (at p 507):

"Were he resident ... 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."

Thus his Honour saw the phrase "equally applicable" in s.117 as embracing the notion discussed above. It seems to me that for s.117 to apply it must appear that, were the person a resident of the legislating State, that different circumstance would of itself either effectively remove the disability or discrimination or, for practical purposes in all the circumstances, mitigate its effect to the point where it would be rendered illusory.

28. A disability or discrimination is rendered illusory if the fact of residence would substantially deprive it of its onerous nature. A requirement of continuous residence for a certain period would in my view be an example of a law whose onerous effect on non-residents would be rendered illusory under this test. A disability or discrimination based upon grounds apart from residence is effectively removed if those grounds relate to characteristics which are in the circumstances concomitants of the individual's notionally changed residence. To this extent I would accept the argument that s.117 is not susceptible of "colourable evasion" by State legislatures.

29. In the foregoing discussion I have stated why it is that I cannot accept the correctness of the interpretation placed on s.117 in Davies and Jones and, more importantly, Henry v. Boehm. Moreover, the adoption of the interpretation expounded in the preceding paragraph of these reasons would be inconsistent with the actual decision in Henry v. Boehm. Needless to say I am reluctant to depart from an earlier decision of this Court. However, two of the factors relied upon by the Court in John v. Commissioner of Taxation (1989) 63 ALJR 166, at p 174; 83 ALR 606, at p 620, for overruling the earlier decision in Curran v. Federal Commissioner of Taxation (1974) 131 CLR 409 are present in this case. The earlier decisions do not rest upon a principle gradually worked out in a significant succession of cases. And the decisions have not been independently acted upon in a manner or to an extent that works against reconsideration of them. Furthermore, there is in the present case an additional factor. The question at issue relates to an important provision in the Constitution dealing with individual rights central to federation. The earlier decisions placed an incorrect interpretation upon it. The Court has a responsibility to set the matter right.

30. Accordingly, I would apply the principle, along the lines mentioned above, that 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.

31. Applying this test to Mr Street's appeal, it is clear that a requirement that he cease to practise outside Queensland would be less onerous were he to live in Queensland, although it would still be a significant imposition. The notional change of residence does not justify the Court in assuming that, were he to live in Queensland, Mr Street would practise only or even principally in Queensland; not only is that to take the consequences of the notional change a step too far, but it is effectively to assume that, but for his residence, Mr Street would have been admitted to practice in Queensland, which is the ultimate question.

32. But it is not necessary to take that step. If Mr Street were a resident of Queensland, a requirement that he cease practice outside Queensland would still permit him to practise in the State in which he resided. This stands in marked contrast to the actual position, which requires Mr Street to practise only in a State in which he does not reside. The disability is one imposed upon residents and non-residents alike, but in the case of a resident its effect is mitigated to a very substantial extent. Only a non-resident is prohibited from practising where he resides. The inconvenience suffered by a resident as a result of compliance with the requirement pales in significance beside the onerous and in many cases impossible burden imposed upon a non-resident. Thus par (6) of Form 10 is a provision within the terms of the applicable test.

33. Paragraph (7) presents a certain difficulty of construction. On its face, arrival in Queensland is perhaps not indicative of the taking up of residence in Queensland. But, taken in conjunction with the requirement in par.(6), it seems sufficiently clear that par (7) implicitly requires that the applicant has abandoned interstate residence and moved to Queensland. Indeed, the fact that the affidavit prescribed by the Form is only to be sworn by persons previously admitted outside Queensland, coupled with the terms of par (6), compels that conclusion.

34. That paragraph thus requires Mr Street to reside in Queensland. That is something which, as a previously admitted barrister, he would still be required to do were he a resident of Queensland. But the notional fact of residence would effectively remove any disability or discrimination caused. Paragraph (7) therefore falls within the terms of the test I have explained.

35. It remains to consider whether the disability or discrimination imposed on Mr Street is of a kind contemplated as falling within the proscription in s.117. In Davies and Jones, O'Connor J. stated (at p 53) that s.117 "does not prohibit a State from conferring special privileges upon those of its own people who, in addition to residence within the State, fulfil some other substantial condition or requirement". It is implicit in that statement that a privilege granted upon the basis of residence alone may offend s.117. Even if one were minded to draw a distinction between the imposition of a disability and the denial of a privilege, the word "discrimination" is wide enough to cover the denial of a privilege in appropriate cases.

36. But this does not advance the matter very far. Clearly there must be some limit upon the ambit of s.117, especially when it is considered that it is not primarily a restriction upon legislative power. The section is intended to prohibit within certain limits the imposition of a disability or discrimination based upon residence, but does not specify what limits, if any, there may be to its operation. The delegates to the Conventions rejected a "privileges and immunities" formulation similar to that found in Art.IV s.2 of the United States Constitution because they thought the formulation too vague. However, the "privileges and immunities" concept is not so dissimilar to "disability or discrimination". It is therefore useful to look to the approach which the United States Supreme Court has taken to the meaning of "privileges and immunities" as used in Art.IV s.2.

37. Broadly speaking, the test adopted consists of two stages. First, the Court decides whether or not the interest violated is a "fundamental right" basic to national unity: Baldwin v. Montana Fish and Game Commission (1978) 436 US 371. If it is, then the second question is whether the legislating State can demonstrate a substantial reason for the discrimination. This involves showing that the discrimination against persons in their capacity as non-residents is justified, not merely that the law as a whole is justified: Hicklin v. Orbeck (1978) 437 US 518, at pp 525-526; Supreme Court of New Hampshire v. Piper (1985) 470 US 274, at p 284.

38. Both constitutional provisions broadly serve the same purpose: Davies and Jones, at p 52, per O'Connor J.; and see Stow, "Section 117 of the Constitution", (1906) 3 The Commonwealth Law Review 97, at p 98. However, there is not the same foundation for saying that s.117 was intended to protect fundamental rights as there is in the case of Art.IV s.2. The Australian Constitution contains very few provisions guaranteeing fundamental rights. The consequence is that s.117 must be understood as providing protection in relation to rights generally. But, as is accepted in the United States, that protection should be seen as serving the object of nationhood and national unity.

39. The second limb of the United States test is a recognition that some limit must be placed upon the application of the general principle. In my view it is necessary to adopt a similar approach when considering whether or not a particular disability or discrimination is prohibited by s.117. To allow the section an unlimited scope would give it a reach extending beyond the object which it was designed to serve by trenching upon the autonomy of the States to a far-reaching degree. Accordingly, there may be cases where the need to preserve that autonomy leads to a recognition that a particular disability or discrimination is not prohibited. The object of s.117 is very broad-ranging in its nature and it is difficult to conceive of a disability or discrimination which does not offend that object unless to prohibit the imposition of the disability or discrimination would threaten the autonomy of the relevant State.

40. The basis for insisting on some limitation to the operation of the privileges and immunities clause in the United States was expressed by the Supreme Court of the United States in Baldwin in the following terms (at p 383):

"Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States."

41. A similar basis underlies the correct approach to the interpretation of s.117. The preservation of the autonomy of the States demands that the exclusion of out-of-State residents from the enjoyment of rights naturally and exclusively associated with residence in a State must be recognized as standing outside the operation of s.117. Take, for example, the exclusion of out-of-State residents from the right to enjoy welfare benefits provided by a State under a scheme to assist the indigent, the aged or the ill. Generally speaking, I doubt that such an exclusion would amount to a disability or discrimination within the section. The exclusion would not seem to detract from the concept of Australian nationhood or national unity which it is the object of the section to ensure, because it would offend accepted notions of State autonomy and financial independence and a due sense of a State's responsibility to the people of the State to say that the Constitution required the State to extend the range of persons entitled under the scheme to out-of-State residents. The same comment might be made about a requirement that a person is not eligible to be the licensee of an hotel unless he resides on the premises.

42. On the other hand, the same comments could not be made about the exclusion of out-of-State residents from participation in professional activities open to residents of the legislating State or the imposition of discriminating burdens on such out-of-State residents, unless the exclusion could be justified as a proper and necessary discharge of the State's responsibility to the people of that State, which includes its responsibility to protect the interests of the public. Such an action against out-of-State residents would be inconsistent with the constitutional object of Australian nationhood and national unity, unless the State were able to demonstrate that the interests of the State in maintaining its autonomy, over and above such interest it might have in giving an advantage to its residents over non-residents, required such action to be taken. Obviously, there will be circumstances in which need for regulation of activity, including professional activity, in order to protect the public in a State, requires that conditions be prescribed which may have a greater impact on out-of-State residents than residents of the legislating State. The qualifications and experience prescribed for entry into professional practice in another State may be insufficiently rigorous compared to those appropriate to the legislating State. There may even be a case for justifying the imposition of conditions on out-of-State professionals, though clearly conditions requiring any form of residence within the State would call for stronger justification.

43. But there is in my view no compelling justification for the disability or discrimination imposed upon Mr Street which would suffice to deny s.117 its effect. The United States Supreme Court has consistently rejected arguments invoked in support of bar residence requirements similar to those in the present case; see, for example, Piper, at pp 285-287; Barnard v. Thorstenn (1989) 57 LW 4316. It was found in Piper that there was no evidence that non-resident attorneys would lack familiarity with local rules and procedures, would be less likely to behave in an ethical manner, would be unlikely to perform their share of voluntary work or would be unable to perform their professional duties as satisfactorily as resident attorneys. Greater difficulty in physically attending proceedings was acknowledged, but was not viewed as a sufficient ground for denying admission. These conclusions apply with equal force to the position in Queensland. I am reinforced in that view by the fact that States other than Queensland do not see the need for special treatment of residents of their home States in order to ensure that proper professional and ethical standards are maintained. No peculiar characteristic of the Queensland legal profession or of Queensland law or practice has been suggested that would call for unique treatment.

44. My conclusions are:

(1) Mr Street is a subject of the Queen resident in New South Wales.

(2) The Rules subject him to a disability or discrimination, namely giving up his practice in his State of residence, which would not be equally applicable to him if he were a resident of Queensland. The Rules also subject him to a further disability or discrimination of that kind, namely giving up his residence in New South Wales.

(3) The need to ensure proper professional and ethical standards for the legal profession in Queensland does not justify the imposition of this disability or discrimination upon practitioners resident outside Queensland.

45. It follows that I would allow the appeal and remit the matter to the Supreme Court of Queensland for the making of orders in accordance with the judgment of this Court. From Mr Street's point of view there would then be no necessity for me to consider either the arguments raised in relation to s.92 or the stated case. In these circumstances it would not be desirable to embark upon an analysis of the operation of s.92 in this context.

46. However, in view of the general importance of the matter, it is desirable to deal with the stated case, in so far as it concerns the operation of s.117. The first question in the stated case can therefore be answered, despite its practical irrelevance to Mr Street, without embarking upon further constitutional analysis. The same is not true of the second question, which I accordingly refrain from addressing.

47. The amendments made to the Rules on 2 July 1987, in so far as they are relevant, can be shortly stated. In r.15, the following extra paragraph was inserted:

"(e) if he relies on a qualification set out in paragraph (d)(3), (4) or (5), have the intention of practising principally in Queensland."

A form of conditional admission was stipulated in the case of persons relying on a previous out-of-State admission, in these terms:

"15B. (1) An applicant for admission who relies on a qualification set out in rule 15(d)(3), (4) or (5) shall in the first place be admitted conditionally only for a period of one year. (2) After the expiration of the said period of one year, the applicant may be
granted absolute admission if he satisfies the court that, since his conditional admission and until the date of the application for the order absolute, he has practised principally in Queensland and has not pursued any occupation or business other than that proper for a barrister."

Finally, pars (6) and (7) of Form 10 were omitted and the following par (6) substituted:

"(6) It is my intention to practise principally in the State of Queensland commencing on (here set forth any relevant date)."

The stated case asks the following relevant question:

"1. Are the Rules of the Court relating to the admission of Barristers of the Supreme Court of Queensland, as amended by Order in Council dated the (2nd) July 1987, invalid as being contrary to Section 117 of the Constitution?"

48. The amendments can be seen to require that a person admitted to practice as a barrister in Queensland practises principally in Queensland. No longer does a person relying upon a previous admission have to reside in Queensland. Leaving aside r.15B, the requirement that a person practise principally in Queensland is one which would be substantially deprived of its onerous nature were Mr Street to reside in Queensland. Accordingly, Mr Street could not be refused admission on the basis that he failed to comply with r.15(e) or par (6) as amended. That is a result of Mr Street's individual circumstances. Were he, for example, to reside close to the Queensland border, the notional change of residence might make insufficient difference to warrant the conclusion of invalidity.

49. Rule 15B has the effect of requiring Mr Street substantially to abandon his non-Queensland practice for one year. That is a contravention of s.117 for reasons similar to those I have already stated. However, I think that the other requirement stipulated in r.15B(2) and the words concerning the system of conditional admission itself are severable both from the offending words of r.15B and from the invalid r.15(e) and par (6) of Form 10. Hence I regard r.15B as invalid in its application to Mr Street only to the extent to which it provides: "has practised principally in Queensland and".

50. I would answer question 1 as follows: "Rule 15(e), par (6) of Form 10 and Rule 15B(2) are inapplicable to the plaintiff to the extent that they would require him, on any fresh application for admission, to have an intention of practising principally in Queensland or so to practise during the period between conditional and absolute admission."

51. As the parties have agreed to bear their own costs in these matters, there should be no order as to costs.

BRENNAN J. The jurisdiction of the Supreme Courts of each of the Australian States extends to the admission, disciplining and disbarring of barristers and has done so from colonial times: In Re The Justices of the Court of Common Pleas at Antigua (1830) 1 Knapp 267 (12 ER 321); In re Spensley (1864) 1 WW &AB (L) 173; In re Davis (1947) 75 CLR 409, at pp 414,419,423, 427,429; Ziems v. The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, at pp 287, 290-291. That is an important jurisdiction affecting the organization of the court itself, for the proper functioning of a court depends on the proper discharge of their duties by the advocates who are entitled to appear before it: Giannarelli v. Wraith (1988) 165 CLR 543, at pp 555-558, 578-580,588-589. As Dixon J. pointed out in In re Davis, at p 420:

" The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges."

The exercise of the jurisdiction of the Supreme Court of Queensland to admit barristers to practice is now governed by Rules of Court enacted by Order in Council with the concurrence of at least two judges of the Court: Supreme Court Act of 1921 (Q), s.11(2)(v). At an earlier time, the exercise of the jurisdiction was governed by rules made by the judges of the Court. The rules express the qualifications of an applicant who, by training, experience and character, is suitable for admission to practise as a barrister of the Court. There can be no doubt about the validity of provisions of the Rules of Court which set out what an applicant must show as to training, experience and character in order to satisfy the Court that she or he is suitable to be admitted to practice.

2. In Re Sweeney (1976) Qd R 296, W.B. Campbell J. traced the history of the provisions governing the admission in Queensland of barristers previously admitted elsewhere who rely on previous admission to show suitability to be admitted in Queensland. For present purposes, it is sufficient to take up that history at the judgment of Lutwyche J. in In re Owen (1865) 1 QSCR 139. Refusing Mr Owen's application for admission, his Honour said (at p 140):
"An affidavit of residence or intention to
practise is necessary to ground an application for admission to the bar of this colony. If Mr Owen should ever decide upon becoming a resident practising barrister in Queensland, this Court will give him a hearty welcome; but, at present, the application must be refused." This approach was carried into the Regulae Generales of the Supreme Court of 27 November 1896 ("the 1896 rules"). Rule 45(3) of the 1896 rules prescribed the "Conditions to be performed before admission" in these terms:

"If he is a barrister previously admitted elsewhere, he shall at least five days before seeking admission - (a) Submit his certificate of admission to the Board;

(b) File with the Registrar an affidavit in and containing the several allegations specified in form 14; and

(c) Deliver a copy of such affidavit to the secretary."

Paragraphs (6) and (7) of form 14 read as follows:

"(6) That I ceased to practise as a barrister in (here set forth the dates when the applicant ceased to practise in the various Courts to which he has been admitted, and the nature of his employment thereafter);

(7) That I arrived on the day of 18 , in the colony of Queensland;".

As amended from time to time thereafter, the 1896 rules governed the admission of barristers of the Supreme Court of Queensland until the Rules relating to the Admission of Barristers of 4 December 1975 ("the 1975 rules") came into operation.

3. Although the 1896 rules reserved to the Court a general power of exemption (r.59), the Court was not accustomed to exempt any applicant relying on previous admission elsewhere from the necessity to depose to the allegations contained in pars (6) and (7) of form 14 unless there were "special circumstances": Ex parte Evatt (1931) QWN 11; In re O'Sullivan (1940) QWN 37; In re Holmes (1944) QWN 33. In the first two of these cases, special circumstances were held to exist but not in the third.

4. The requirement that an applicant depose to the allegations contained in pars (6) and (7) of form 14 created a protection for the Queensland Bar against competition by barristers who, having been admitted previously to practice elsewhere and practising out of Queensland, sought admission to practise in Queensland in order to supplement their original practice. In In re O'Sullivan Mr McGill K.C., appearing for the Barrister's Board, submitted:
" The Queensland bar should be protected.
The University has recently provided a system of legal education and a number of young men have come to the bar, and their interests must be considered. The objection is in no way personal to the applicant. The Board is anxious to protect this bar and to have principles formally laid down. When application is made for exemption under r.59, surely strong circumstances are required." Although the majority of the Court held that special circumstances existed in the case of Mr O'Sullivan (a New South Wales barrister), E.A. Douglas J. in dissent said:

"I hope this will not be a prelude to a practice by which members of the junior bar will be sent up here in place of engaging members of the Queensland bar. I regret that I have to express these views, but I think that if we are going to allow members of the junior bar to come in, it should be done by express amendment of the rule. I do not think that reciprocity in the real sense of the term will be in danger if we refuse this application, because it is quite sufficient, I think, for the purposes of reciprocity that residents or persons who intend to reside in Queensland or New South Wales may be admitted to the respective bars."

In In re Holmes, another application by a New South Wales barrister for admission in Queensland, Macrossan ACJ. found in form 14 two requirements - cessation of practice in the courts of earlier admission and Queensland residence:

"Nos. 6 and 7 of these allegations clearly contemplate that an applicant for admission who is a barrister previously admitted elsewhere should have ceased to practice as a barrister in the other court or courts to which he has been admitted elsewhere, and should have become a resident of this State, before applying for admission as a barrister here."

E.A. Douglas J., rejecting an argument that reciprocity is itself a special circumstance within the meaning of r.59, said:

" I think that if it is desired there should be a general reciprocity, irrespective of any conditions, between the barristers of this court and the barristers of New South Wales, the rules should be amended; and if the board desire that should be done they can approach the proper authorities for the purpose of having the rules amended. According to the New South Wales rules, there is no limitation with respect to residence, but it is a fact that nearly all the barristers who have been admitted in New South Wales from Queensland went there for the purpose of residence. There are one or two exceptions."

5. The 1975 rules, prior to their amendment by the Order in Council of 2 July 1987, made provision similar to the provision made by the 1896 rules for the admission of barristers who had previously been admitted elsewhere. The 1975 rules were made pursuant to s.11(2)(v) of the Supreme Court Act. It is convenient first to refer to those rules in their unamended form. Rule 38 of the 1975 rules provided:
" Every person seeking admission as a
barrister shall:- ...

(d) If he relies upon a previous admission, include in his affidavit the matters set out in Form 10".

The form of affidavit (form 10) in the 1975 Rules contained these paragraphs:

"(6) That I ceased to practise as a barrister in (here set forth the dates when the applicant ceased to practise in the various Courts to which he has been admitted, and the nature of his employment hereafter.)

(7) That I arrived on the day of , 19 , in the State of

Queensland."

The allegations in form 10, which was part of the Order in Council enacting the 1975 rules, prescribe requirements for admission as effectively as if they were set out seriatim in r.38. The Supreme Court interpreted these provisions in the same way as it had interpreted the corresponding provisions of the 1896 rules. In Re Sweeney, a majority (Wanstall ACJ. and W.B. Campbell J., D.M. Campbell J. dissenting) followed In re Holmes, holding that the 1975 rules, like the 1896 rules, imposed requirements of residence in Queensland and ceasing to practise elsewhere and did not make reciprocity a special circumstance justifying an exercise of the exempting power: see per Wanstall A.C.J., at pp 298-300, and W.B. Campbell J., at pp 309-311.

6. The 1896 rules and the 1975 rules and the decisions which applied them denied admission in Queensland to applicants who relied on prior admission as barristers elsewhere in Australia unless the applicant, having ceased to practise as a barrister outside Queensland, came to reside in Queensland or unless "special circumstances" were found to exist. The restrictions on admission imposed on barristers who had been admitted in other States were abrogated for a time by the Barristers Act 1956 (Q) but that Act was repealed by The Barristers Act of 1956 Repeal Act of 1960 (Q).

7. Neither the 1896 rules nor the 1975 rules contain any suggestion that residence in Queensland or cessation of practice elsewhere is necessary or desirable to ensure that the applicant for admission has the training, experience or character necessary to show that the applicant is suitable to be admitted to practise at the Bar of the Supreme Court of Queensland. The requirements of Queensland residence and cessation of practice elsewhere were applied by r.15 to applicants for admission who relied on previous admission in New South Wales. Prior to its amendment by an Order in Council of 2 July 1987, that rule required an applicant -

(a) to be of good fame; (b) to be proficient in the English language; (c) to have complied with all the conditions of the rules applicable to him; and

(d) to establish to the satisfaction of the Barristers' Board that New South Wales grants reciprocity of admission to barristers-at-law of the Supreme Court of Queensland.

8. These qualifications apply indifferently to all New South Wales barristers seeking Queensland admission, wherever resident. No distinction relevant to training, experience, character or general suitability to practise as a barrister of the Supreme Court of Queensland is drawn between those barristers admitted in New South Wales who are resident in Queensland and those who are not resident in Queensland. The difference between residents and non-residents in their entitlement to admission to practise in Queensland arises solely from the provisions of r.38(d) and pars (6) and (7) of form 10 as construed by the Supreme Court. Having regard to the history of these provisions and the absence of any rational connection between an applicant's suitability to practise at the Queensland Bar on the one hand and the requirements of residence and cessation of practice in the courts of prior admission on the other, their only purpose can be the protection of the locally resident Queensland Bar from competition from barristers admitted and resident in other States. It is irrelevant in these proceedings to consider whether the Queensland Bar needed or needs any such protection, whether the interests of the Queensland Bar would not be better served by open competition and whether open competition is likely to reflect fairly the comparative professional merits of the competitors. In the years when I practised at that Bar, those were - I presume they still are - issues which excited much controversy.

9. The construction which Re Sweeney placed on r.38(d) and pars (6) and (7) of form 10 is not the only construction which the words of those provisions might have supported, but that construction accords with the settled construction of the 1896 rules which the 1975 rules substantially re-enacted. Although re-enactment of a statute generally gives no great support to a prior judicial construction of its terms (Reg. v. Reynhoudt (1962) 107 CLR 381, at p 388), the Order in Council which enacted the 1975 rules was made with the concurrence of at least two judges of the Supreme Court (Supreme Court Act, s.11(1)) and it is inconceivable that the provisions of the 1896 rules which had been held to impose the residential restriction were substantially re-enacted in the 1975 rules without the intention of maintaining the then settled construction.

10. The applicant, Alexander Whistler Street, applied to the Supreme Court of Queensland for admission as a barrister of that Court, relying on his previous admission as a barrister of the Supreme Court of New South Wales. Mr Street is permanently resident in New South Wales. From what appears in the judgments of the Full Court which heard Mr Street's application for admission, it seems that he complied in all respects with the rules of the Supreme Court of Queensland relating to the admission of barristers save that he intends to continue to reside in New South Wales and he does not intend to cease to practise as a barrister in that State. The Full Court refused his application: (1988) 2 Qd R.209. Connolly J., with whom Shepherdson J. agreed, said (at p 210):
"He is in all respects qualified to be
admitted as a barrister in Queensland, save that he intends to continue as a resident of New South Wales and has not ceased to practise and does not intend to cease to practise as a barrister (of) his State of residence. In these circumstances, it is clear that the court is precluded by a line of decisions from admitting him to practise: Re Sweeney (1976) Qd R 296; Re Holmes (1944) QWN 33; Re O'Sullivan (1940) QWN 37." Mr Street applied for special leave to appeal against the order refusing his application but, before that application was heard, the rules relating to the admission of barristers were amended in material respects by the Order in Council of 2 July 1987. The application for special leave was opposed. Mr Street submits that he had a right to admission which was erroneously refused by the Supreme Court and that that right is unaffected by the subsequent amendment of the rules. Accordingly, if special leave to appeal against the order of the Supreme Court be granted, he seeks an order admitting him to practice as a barrister of that Court. For the reasons stated by each of the Chief Justice, Dawson and McHugh JJ., I agree that the amendment leaves unaffected Mr Street's claimed right to admission under the rules as they stood prior to the amendment and that it is appropriate to grant him special leave to appeal.

11. If his appeal be successful, Mr Street would not need to make another application for admission under the amended rules. However, if Mr Street were to make another application for admission, the amendment would require him to depose to an intention, if admitted, to practise principally in Queensland. That is not Mr Street's intention. He commenced other proceedings in this Court challenging the validity of the rules as amended by the Order in Council of 2 July 1987. In those proceedings, the Chief Justice has stated a case reserving two questions of law for determination by this Court:

"1. Are the Rules of the Court relating to the admission of Barristers of the Supreme Court of Queensland, as amended by Order in Council dated (2) July 1987, invalid as being contrary to Section 117 of the Constitution? 2. Are the Rules of the Court relating to
the admission of Barristers of the Supreme Court of Queensland, as amended by Order in Council dated (2) July 1987, invalid as being contrary to Section 92 of the Constitution?"

12. Mr Street's appeal and the stated case both raise for consideration the questions whether s.92 of the Constitution invalidates those provisions of the rules which have precluded or would now preclude Mr Street's admission and whether those provisions purportedly impose on him a disability or discrimination from which s.117 of the Constitution protects him. It will be convenient to consider the 1975 rules as they stood before the amendment of 2 July 1987 in order to dispose of the appeal before considering the rules as they now stand in order to answer the questions in the stated case.
Section 92 and section 117 compared.

13. The argument founded on s.92, if successful, would lead to a different conclusion from that to which the argument founded on s.117, if successful, would lead. The s.92 argument, if successful, would lead to the conclusion that particular provisions of the 1975 rules are invalid because their purpose or their substantial effect is such that they are to be characterized as discriminatory against interstate trade or commerce in a protectionist sense: Cole v. Whitfield (1988) 165 CLR 360, at pp 407-408,409-410; Bath v. Alston Holdings Pty.Ltd. (1988) 165 CLR 411, at p 424. Section 92 restricts legislative power, so that a purported law which offends s.92 is to that extent made without power. Therefore, a law which is invalidated by s.92 binds nobody: any person is free to ignore the invalid law, whether or not that person is engaged in interstate trade or commerce. Conversely, s.92 gives no relief to a person who is engaged in interstate trade or commerce and whose trade or commerce is adversely affected by a law unless the purpose or substantial effect of the law is such that it is to be characterized as discriminatory against interstate trade or commerce in a protectionist sense. By contrast, s.117 does not restrict legislative or other power; it does not operate by invalidating the law or the governmental act by or under which the disability or discrimination is imposed. It confers an immunity on individuals or, if we choose to employ the rhetoric of rights, confers a constitutional right not to be subjected to a certain disability or discrimination. The object of s.92 is to secure the freedom of markets; the object of s.117 is to secure equal treatment for the individuals whom it protects.

14. In considering the two arguments, the narrower consequence of the s.117 argument - individual protection rather than general invalidity of a law -
suggests that it should be considered first. If the applicant's argument on s.117 prevails, it will be unnecessary to consider whether some provisions of the 1975 rules, if not the rules as a whole, are invalid. The issues arising on the s.92 argument include two questions of significance for the purposes of ss.51(i) and 92 of the Constitution. The first question is whether a supplier of personal services resident outside a State who goes into another State in order to supply services wholly within the other State is engaged in interstate trade or commerce; the second is whether barristers, in the conduct of their profession, are engaged in trade or commerce. These are questions which ought to be answered only in a case where it is necessary to do so. It will not be necessary to do so in this case unless the applicant's argument on s.117 fails.

15. The decision of this Court in Henry v. Boehm (1973) 128 CLR 482 stands in the way of Mr Street's argument on s.117. In that case, the Court held that s.117 did not affect the application to a Victorian barrister and solicitor of rules in the South Australian Rules of Court Regulating the Admission of Practitioners 1955- 1972 which required an applicant relying on previous admission elsewhere to reside continuously in South Australia for three months prior to applying for admission and, after conditional admission, for at least a further 12 months until order absolute. It will be necessary to consider the authority of that decision after examining the terms of s.117.

16. Section 117 is a singular provision. It does not purport to limit the grant of legislative power to the Commonwealth, to restrict the scope of any power of a State, to afford any protection against the subjection of a person in a State to a disability or discrimination imposed by or under a valid law if that person is not a subject of the Queen resident in another State or to afford any protection against disability or discrimination imposed on any person in a Territory. It is not in terms directed either to the Commonwealth or the States. It is found in Ch.V - "The States" - but its mere presence in Ch.V does not mean that it has no operation when a disability or discrimination is imposed by or under a law of the Commonwealth: cf. s.116 which, though in Ch.V, is directed in terms only to the legislative power of the Commonwealth. However, as the protection afforded by s.117 extends only to the subjection of a person in a State to an impermissible disability or discrimination, it is understandable that s.117 should be within Ch.V. Section 117 is not directly concerned with the nature of the power by which an impermissible disability or discrimination is purportedly imposed.

17. Section 117 is expressed to protect the persons whom the section mentions: "A subject of the Queen, resident in any State". It gives no protection to those who are subjects of the Queen but who are not residents in a State; nor does it give protection to those who are residents in a State who are not subjects of the Queen; nor, of course, does it give protection to those who possess neither qualification. Its protection is limited to natural persons (cf. Western &Southern Life Insurance Co. v. Board of Equalization (1981) 451 US 648, at p 656) and does not appear to extend to subjects of the Queen resident in a Territory: cf. Anderson v. Scholes (1949) 83 FSupp. 681, at p 687. Section 117 makes the persons within the class it describes immune from ("shall not be subject ... to") an impermissible disability or discrimination however imposed. Thus the immunity extends to disability or discrimination arising by exercise of executive or judicial, as well as legislative, power. The section does not purport to restrict the immunity it confers to disability or discrimination imposed directly by a law. An impermissible disability or discrimination may be imposed as well by executive or judicial act as by law. The exercise of an executive discretion against a protected person on the ground that she or he is not a resident in the relevant State ("out-of-State residence") subjects that person to a relevant discrimination. Similarly, it would offend s.117 for a judge to impose a more severe penalty on an offender who is a protected person merely on the ground of out-
of-State residence. Section 117 cuts across the exercise of all governmental power, conferring immunity directly on individuals; their immunity is not a consequence of a limitation on a power. A law which imposes an impermissible disability or discrimination on a protected person is not invalid; it remains in full force and, except in relation to protected persons, in full effect. Uniquely in the Constitution, s.117 carves out an area of personal immunity which cannot be breached by law, executive action or judicial order. It is a constitutional guarantee to each person within the protected class that no law or act of government will subject her or him to a certain kind of disability or discrimination. The difficulty in construing s.117 is to identify the kind of disability or discrimination which falls within the guarantee and thus to define the area of immunity enjoyed by each subject of the Queen resident in a State.

18. It is unnecessary to determine in this case whether the term "subject of the Queen" in s.117 (meaning thereby the Queen in right of Australia: Nolan v. Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, at p 186) is synonymous with the term "Australian citizen". The closest analogies of the United States Constitution - Art.IV s.2 and the 14th Amendment - resolve this question so that the American cases can provide little guidance: see, for example, United Building &Construction Trades v. Mayor (1984) 465 US 208, at p 216. The Federal Convention meeting in Melbourne in 1898 consciously left the question open: see the Debates, vol.v, pp 1784-1797, 1801-1802. The question was not raised in Nolan which established that "subject of the Queen" is the antonym of "alien" in s.51(xix) of the Constitution: see pp 185-186. It may be that resident friendly aliens are subjects of the Queen in right of Australia so long as they remain in Australia: see Arnerich v. The King (1942) NZLR 380. However, as there is no doubt but that Mr Street is a "subject of the Queen" on any interpretation of that term, the question need not be answered in this case.

19. Nor is it necessary to determine in this case the degree of permanency of residence which confers on a subject of the Queen the status of a "resident in any State". Mr Street, being permanently resident in New South Wales, is a "resident in" that State. However, the question of permanency was material to the decision in Henry v. Boehm and it will be necessary to refer to the question in considering the authority of that case. For the moment, it is sufficient to note that Mr Street is a person who, if s.117 has been offended, is entitled to the protection it affords.
Section 117: "disability or discrimination".

20. The scope of the immunity conferred on a protected person by s.117 is limited to "any disability or discrimination" falling within the descriptive clause: "which would not be equally applicable to him if he were a subject of the Queen resident in such other State." Disability is a term apt to describe an incapacity to take, exercise or enjoy a right, power or privilege. That meaning is consistent with both modern dictionary definitions and the ancient definition (1721) of "disability" in William Rastal's Les Termes de la Ley:
"when a Man by an Act or Thing, by himself or
his Ancestor done or committed, or for or by any other Cause, is disabled or made incapable to do, inherit, or take Benefit or Advantage of a thing, which otherwise he might have had or done." Less clearly, the term "disability" might be held to describe a liability to suffer a diminution in legal rights or an increase in legal liabilities, but that meaning in the context of s.117 is subsumed in the connotation of "discrimination" and it is unnecessary to attempt an exhaustive definition of "disability". The term "discrimination" is to be distinguished from "disability" in three relevant respects: discrimination connotes a comparison (Post Office v. Crouch (1974) 1 WLR 89, at p 97; (1974) 1 All ER 229, at p 238), but disability does not; discrimination imports a ground for differentiating between the persons compared, but disability is not concerned with the reason why it is imposed; and discrimination extends beyond the discriminatory imposition of a legal incapacity or liability to the discriminatory withholding of any benefit (including any right, power or privilege) and to the discriminatory imposition of any burden (including any liability to suffer a diminution of legal rights or an increase in legal liabilities). Discrimination is a broader term than disability but the two terms are not mutually exclusive: a discriminatory imposition of a disability is comprehended by both.

21. The hypothesis contained in the descriptive clause must be adopted in each case to ascertain whether the particular protected person has been subjected to a relevant disability or discrimination. When a protected person alleges that he is subject to a disability or discrimination in a State other than his State of residence, a comparison must be made between the disability or discrimination to which the person is purportedly subjected in the other State and the disability or discrimination, if any, to which he would be subjected "if he were a subject of the Queen resident in such other State." The actual position of the protected person must be compared with the hypothetical position. The starting point is to identify the disability or discrimination to which the protected person is purportedly subject; the next enquiry is whether, if that person were resident in the State in which she or he is purportedly subject to the disability or discrimination, she or he would be subject to it to the same extent ("equally applicable"). Section 117 is focussed on the individual and looks to the actual benefit withheld or the actual burden imposed on the individual ("applicable to him"), not to the means by which the protected person is subjected to it. For the purposes of s.117, it is not the indifferent application of a law to in-State and out-of-State residents which is material, but the actual impact on a protected person of a law or governmental act in comparison with the impact it would have if that person were an in-State resident.

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

23. As s.117 affords protection to individuals when the individual is subject to a disability or discrimination which would not be "equally applicable to him" if he were an in-State resident, it focusses upon the impact of a governmental measure on the individual not merely upon the applicability of the measure to a class of which the individual is a member. To determine the impact of a measure on an individual, it is necessary to take account of the particular circumstances of the individual. In other words, s.117 is concerned not only with legal rights and liabilities but also with the actual effect on the individual of legal rights and liabilities produced by a law or other governmental action. In this respect, discrimination within s.117 extends to what McIntyre J. called "adverse effect discrimination" in Ontario Human Rights Commission v. Simpsons-Sears (1985) 2 SCR 536, at p 551; 23 DLR (4th) 321, at p 332:
"It arises where an employer for genuine
business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force." See also Griggs v. Duke Power Co. (1971) 401 US 424, at p 431. Discrimination in s.117 thus extends beyond a law, administrative policy or judicial practice of general application to the actual impact which a law, policy or practice produces on the persons to whom it is directed. The comparison which establishes discrimination is not necessarily made by reference to questions of law alone. It may have to be made by reference to the facts of the particular case: see Cole v. Whitfield, at pp 407-408.

13. Having regard to what was said in the Full Court concerning Mr Street's qualifications for admission, it seems plain that, but for his intention to reside and to practise principally in New South Wales, he would have a "right" to be admitted to the Queensland Bar. If, by reason of s.117 of the Constitution, the Rules could not lawfully require him, as a condition of admission, to give up his residence and practice in New South Wales, he is entitled to admission in Queensland. Consequently, the amendments to the Rules made on 2 July 1987 are not a ground for refusing Mr Street special leave to appeal against the judgment of the Full Court. Special leave to appeal should be granted.
The Appeal

14. Section 117 of the Constitution enacts:

"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."

15. The Full Court held (at p 210) in the present case that the decision of this Court in Henry v. Boehm (1973) 128 CLR 482 was "binding authority that a residential requirement for admission to the practice of a profession does not contravene s.117". Mr Bennett QC, who appeared for Mr Street, submitted that the Full Court erred in regarding itself as bound by the decision in Henry v. Boehm. It becomes necessary, therefore, to determine what Henry v. Boehm decided and whether the decision in that case is consistent with the protection given to an interstate resident by s.117 of the Constitution.

16. In Henry v. Boehm the plaintiff, who was admitted as a barrister and solicitor in Victoria, applied for admission to practice in South Australia. Supreme Court Admission Rule 27(1) provided that an applicant, previously admitted elsewhere, should reside "for at least three calendar months in the State continuously and immediately preceding the filing of his notice of application". However, r.27(1) did not apply to an applicant who satisfied the Board of Examiners that he "ordinarily resides in and is domiciled in this State": r.27(2). Rule 28 provided that an applicant previously admitted elsewhere should be admitted conditionally only for a period of one year but that he might be granted absolute admission if he satisfied the Court that, since the date of his conditional admission, he had "continuously resided in the State" and had not pursued any occupation or business other than the proper business of a practitioner. This Court, by majority, held that these Rules did not offend s.117 of the Constitution.

17. The majority (Barwick C.J., McTiernan, Menzies and Gibbs JJ.) reached its conclusion on two grounds. First, the Rules applied equally to residents of South Australia relying on a "previously admitted" qualification. Hence, the plaintiff would be liable to observe in South Australia exactly the same provisions if he were a resident of South Australia: Barwick C.J. at pp 486-487, McTiernan J. at p 490, Menzies J. at p 491, Gibbs J. at pp 497-498. Secondly, the concept of "residing" in the Supreme Court Admission Rules was not the same as the concept of "resident" in s.117 of the Constitution. An applicant for admission in South Australia could comply with rr.27 and 28 without giving up his interstate residence. Consequently, there was no disability or discrimination based on residence within the meaning of s.117: Barwick C.J. at pp 489- 490, McTiernan J. at p 490, Menzies J. at pp 492-493, Gibbs J. at p 498.

18. At back of these conclusions were three wider conclusions about s.117. First, a law only offends s.117 if the disability or discrimination is based solely on residence: Barwick C.J. at p 488, McTiernan J. at p 490, Menzies J. at p 493, Gibbs J. at p 496. Secondly, the concept of residence to which s.117 is directed involves a degree of permanence: Barwick C.J. at p 487, McTiernan J. at p 490, Menzies J. at p 491, Gibbs J. at pp 496-497. Thirdly, regard can only be had to the legal operation of the impugned provision and not to its factual consequences: Barwick C.J. at p 489, McTiernan J. at p 490, Menzies J. at p 491.

19. Whatever the nature of the disability or discrimination to which the interstate resident is subject, s.117 does not assist him or her unless the disability or discrimination is imposed or created on the ground of interstate residence and is decisive in denying equality of treatment to him or her. A State law which provides that a person cannot be admitted to practice in that State if (a) she is a woman, or (b) an interstate resident, discriminates against an interstate woman resident in three different ways. It discriminates against her on the ground of sex so far as interstate men are concerned, on the ground of residence so far as the State's women are concerned, and on the grounds of sex and residence so far as the State's men are concerned. But s.117 does not assist her claim for admission because one form of discrimination (refusal of admission on the ground of sex) would be equally applicable to her if she were a resident of the State. Hence, the only disabilities or discriminations which offend s.117 are those which are the result of interstate residence: those which apply to or against interstate residents but not to or against State residents who are in identical circumstances.

20. Section 117 does not say, however, that the offending law must select residence as the criterion of disability or discrimination. The section requires 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 such other State". But in the language of modern anti-discrimination law, a law may have a discriminatory operation or a discriminatory impact. A person resident in another State may be subject to disability or discrimination on the ground of his residence not only from the direct operation of a law but also from its factual impact.

21. In Cole v. Whitfield (1988) 165 CLR 360, this Court said (at p 399) that the "concept of discrimination in its application to interstate trade and commerce necessarily embraces factual discrimination as well as legal operation". The Court went on to say (at p 399) that a law discriminates against interstate trade "if the law on its face subjects that trade or commerce to a disability or disadvantage or if the factual operation of the law produces such a result". There is no reason why the terms "discrimination" and "disability" in s.117 should be given a meaning which excludes disability or discrimination arising from the factual operation of the law. If the interstate resident is subject to a disability or discrimination because of his residence, it cannot matter whether that result is produced because the law selects interstate residence as the basis of discrimination or the imposition of the disability, or because the law selects some other criterion which operates so as to give rise in fact to a disability or discrimination on the ground of interstate residence. Discrimination can arise just as readily from a law which treats as equals those who are different as it can from a law which treats differently those whose circumstances are not materially different: Griggs v. Duke Power Co. (1971) 401 US 424, at p 431; Ontario Human Rights Commission v. Simpsons-Sears Limited (1985) 2 SCR. 536, at p 549; Bhinder v. Canadian National Railway Company (1985) 2 SCR 561, at p 586.

22. The majority in Henry v. Boehm held that the plaintiff was not subject to discrimination because the Supreme Court Admission Rules applied equally to residents of South Australia. But a requirement or condition imposed uniformly on and "applying equally" to residents and interstate residents may nevertheless subject an interstate resident to a disability or discrimination on the ground of interstate residence. What applies equally may be discriminatory because its impact is unequal. To confine "disability" and "discrimination" in s.117 to the consequences of the legal application of the enactment in question and to ignore its factual impact on the interstate resident is to reduce a great constitutional protection to a mere matter of form. Moreover, as Stephen J. pointed out (at p 502) in his dissent in Henry v. Boehm, the position of South Australian residents in that case was irrelevant. What s.117 requires is a comparison between the actual position of the interstate resident and his hypothetical position as a resident in the legislating State. If a law operates so that an interstate resident would be worse off by reason of his residence than he would be if he were a resident in the State in question, s.117 will prevent the law operating to his detriment. In my opinion, the majority judges in Henry v. Boehm were in error in holding that a law which applies equally to residents and non-residents does not discriminate for the purpose of s.117.

23. But what is "discrimination" for the purpose of s.117? The concept frequently involves the notion of unjustified differentiation: Deputy Federal Commissioner of Taxation (N.S.W.) v. WR Moran Pty. Ltd. (1939) 61 CLR 735, at p 764; Belgian Linguistic Case (No.2) (1968) 1 EHRR 252, at p 293; Simpsons-
Sears, at p 549. On this view a justifiable differentiation which is based on or is the result of interstate residence would not be "discrimination". In s.117, however, "discrimination" seems to mean the act of distinguishing or treating differently irrespective of whether the distinction or different treatment can be justified. Two considerations point to this conclusion. The first is the presence of the word "disability" which in the context of s.117 must have the second meaning attributed to it in the Oxford English Dictionary, 2nd ed. (1989): "Incapacity in the eye of the law, or created by the law; a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them; legal disqualification". There is no ground for holding that "disability" in s.117 means an "unjustifiable" or "unreasonable" disability. It would be incongruous, therefore, to give "discrimination" in s.117 an interpretation which leads to the result that the imposition of differential treatment which is justifiable is outside the section but the imposition of a disability which is justifiable is within the section. Indeed, in many cases a restriction might be classified as both a disability and a discrimination. The presence of "disability" in s.117, therefore, is a powerful reason for not confining "discrimination" to "unjust", "undue" or "unreasonable" discrimination. Secondly, the term "discrimination" is also used in s.102 of the Constitution which provides: "The Parliament may ... forbid, as to the railways, any ... discrimination by any State ... if such ... discrimination is undue and unreasonable ..." In that context, "discrimination" means differential treatment. This gives some limited support for the proposition that in s.117 "discrimination" also means differential treatment. Moreover, by s.51(ii) the Parliament is given power to make laws with respect to "Taxation; but so as not to discriminate between States or parts of States". The Court has held that in that paragraph "discriminate" means "treat differently": Cameron v. Deputy Federal Commissioner of Taxation (1923) 32 CLR 68, at pp 72, 76, 78, 79, 80. Accordingly, in s.117 "discrimination" should be interpreted to mean differential treatment whether arising from the legal application or the factual impact of the law.

24. Despite the width of its language, however, s.117 was not intended as a human rights charter for interstate residents. It does not prohibit a State from subjecting an interstate resident to disabilities or discriminations to which State residents in identical circumstances are subject. Indeed, as the Convention Debates show, the desire of Western Australia to continue to discriminate against Asian persons was the reason the words "to him" were inserted in s.117. Moreover, although s.117 leaves the words "disability" or "discrimination" at large and does not identify their subject-matter, the "structural logic" of the Constitution indicates that there are some subject-matters in respect of which an interstate resident is not entitled to equality of treatment with State residents in identical circumstances. The object of s.117 was to make federation fully effective by ensuring that subjects of the Queen who were residents of Australia and in comparable circumstances received equality of treatment within the boundaries of any State. But the existence of a federal system of government, composed of a union of independent States each continuing to govern its own people, necessarily requires the conclusion that some subject-matters are the concern only of the people of each State. And since the residents of a State and its people are basically interchangeable concepts, it follows that laws dealing with these particular subject-matters may exclude interstate residents from participation either generally or subject to conditions. The exclusion of these subject-matters from the scope of s.117 is the necessary consequence of a federal system in which each State exercises independent powers and functions within its territory for the peace, order and good government of that territory.

25. Matters which are the concern only of a State and its people and are not within the scope of s.117 would seem to include the franchise, the qualifications and conditions for holding public office in the State, and conduct which threatens the safety of the State or its people. No doubt there are other subject-matters which are also outside the reach of s.117. But since all exceptions to the terms of that section arise by necessary implication from the assumptions and structure of the Constitution, they must be confined to the extent of the need for them. The question is not whether a particular subject-matter serves the object of s.117; it is whether, by necessary implication, the matter is so exclusively the concern of the State and its people that an interstate resident is not entitled to equality of treatment in respect of it.

26. It follows from the foregoing analysis that the current approach of the U.S. Supreme Court to the Privileges and Immunities Clause (Art.IV s.2) of the U.S. Constitution, which provided the inspiration for what became s.117 of the Constitution, is of limited assistance in determining the scope of s.117. Article IV s.2 provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". The Supreme Court has held that, for the purpose of analysis in most cases, the terms "resident" and "citizen" are essentially interchangeable: Austin v. New Hampshire (1975) 420 US 656, at p 662, fn.8; Hicklin v. Orbeck (1978) 437 US 518, at p 524, fn.8. Despite the terms of the Privileges and Immunities Clause, however, the Supreme Court has held that it does not prevent differential treatment when there are valid reasons for that treatment: Toomer v. Witsell (1948) 334 US 385, at p 396. The clause applies only to those "privileges" and "immunities" which bear "upon the vitality of the Nation as a single entity": Baldwin v. Montana Fish and Game Commission (1978) 436 US 371, at p 383; Supreme Court of New Hampshire v. Piper (1985) 470 US 274, at p 279. Moreover, even if a particular activity is one of the "privileges" or "immunities" to which the clause applies (a "fundamental" privilege or immunity), a State may still discriminate against an interstate resident in respect of that activity if (a) there is a substantial reason for the difference in treatment, and (b) the discrimination bears a substantial relationship to the State's objective: Toomer v. Witsell, at p 396; Hicklin v. Orbeck, at pp 525-526; Supreme Court of New Hampshire v. Piper, at p 284.

27. The "two-step inquiry" (United Building and Construction Trades Council v. Mayor of Camden (1984) 465 US 208, at p 219) which the Privileges and Immunities Clause mandates has no counterpart in s.117. Section 117 is not concerned to inquire whether the subject-matter of the disability or discrimination bears "upon the vitality of the Nation as a single entity", or whether there is a substantial reason for the disability or discrimination, or whether the disability or discrimination bears a substantial relationship to the State's objective. Unless by necessary implication, drawn from the assumptions and structure of the Constitution, the subject-matter of the disability or discrimination is outside the scope of s.117, that section focuses on the position of the individual interstate resident in relation to the disability or discrimination. Would it be equally applicable to him if he were resident in the State concerned?

28. Subject-matters which are within the protection of the Privileges and Immunities Clause are a fortiori within s.117; but many subject-matters falling outside the protection of that clause may be within the very different wording of s.117. The point is well illustrated by the leading case of Baldwin. There the Supreme Court held (at p 388) that a statutory licence scheme in relation to elk-hunting which required non- residents to pay licence fees at a substantially higher rate than State residents and to purchase a special licence did not come "within the purview of the Privileges and Immunities Clause". The Court said (at p 388) that since elk-hunting in Montana by non-
residents was a recreation and a sport, equality in access to Montana elk was "not basic to the maintenance or well-being of the Union". However, it seems clear that a similar scheme, enacted by an Australian State, would be held to subject an interstate resident to a "discrimination which would not be equally applicable to him if he were ... resident in such other State". Hence, the basic approach of the U.S. Supreme Court to the Privileges and Immunities Clause is opposed to what s.117 requires. United States cases on that clause are of assistance only in so far as, by decision, they illustrate activities which are "within the purview" of the clause.

29. Significantly for the present case however, the U.S. Supreme Court has concluded "that the right to practice law is protected by the Privileges and Immunities Clause": Supreme Court of New Hampshire v. Piper, at p 283. In that case the Supreme Court of New Hampshire offered several justifications for its refusal to admit non-residents to practice in that State. They were that non-residents "would be less likely (i) to become, and remain, familiar with local rules and procedures; (ii) to behave ethically; (iii) to be available for court proceedings; and (iv) to do pro bono and other volunteer work in the State" (at p 285). The U.S. Supreme Court held that none of these reasons met the test of "substantiality" and the means chosen did not bear the necessary relationship to the State's objectives. State Rules precluding the admission of interstate practitioners on residency grounds have also been struck down by the Supreme Court in subsequent cases: Barnard v. Thorstenn (1989) 57 LW 4316; Frazier v. Heebe (1987) 482 US 641; Supreme Court of Virginia v. Friedman (1988) 101 L Ed 2d 56.

30. It should be apparent from the foregoing analysis that I consider the basic reasoning process and the actual decision in Henry v. Boehm to be erroneous. In addition, I think that the majority were in error in that case in holding that "resident in" in s.117 meant "permanent resident in". No doubt the concept of "resident" in s.117 requires more than presence in a State. But I do not see any constitutional purpose in reading it restrictively to mean "permanent resident". The words are "resident in", not "resident of". "Resident" is a word with a number of shades of meaning. In a legal document, its precise meaning will usually depend more upon context than on the dictionary definition. Nevertheless, when used as a noun, it will prima facie refer to a person who resides permanently in a place: Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe (1922) 31 CLR 290, at p 295. When used as an adjective, however, as it is in s.117, some lesser connection than permanence with a place may make a person "resident in" that place. In Davies and Jones v. The State of Western Australia (1904) 2 CLR 29 Griffith C.J. said (at p 39):

"The word 'resident' is used in many senses. As used in sec.117 of the Constitution, I think it must be construed distributively, as applying 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."

In Henry v. Boehm, Stephen J. was of the same view. So am I.

31. Hence I think that the majority in Henry v. Boehm were in error in holding that a law cannot subject an interstate resident to any relevant disability or discrimination if it applies equally to State and interstate residents and in holding that "resident" meant permanently resident.

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

33. I prefer the above approach to the comparison exercise to the approach taken by Stephen J. in Henry v. Boehm. His Honour saw (at p 507) the disability or discrimination as the disadvantage to the plaintiff in having to leave his established home and live continuously in South Australia for the relevant period to qualify for admission. This was a disadvantage to which the plaintiff would not be subject if he were resident in South Australia. One difficulty with this approach to s.117, however, is that the plaintiff would be actually better off than he would be as the hypothetical South Australian resident if, for example, while remaining a resident in Victoria, he had been overseas for the three months preceding the date on which he filed for admission. To obtain the equality which is the object of s.117, the plaintiff must surely be required to reside continuously for a three-month period in his own State. The plaintiff in Henry v. Boehm sought a declaration inter alia that r.27(1) was invalid to the extent that it applied to him. But if the condition of three months continuous residence was applicable to him, any declaration would have to take account of that condition. And since s.117 does not place an interstate resident in a better position than he would be as a State resident, compliance with the condition was essential. But this problem was not addressed by Stephen J. in his analysis. Nevertheless, I think that the decision of his Honour that the plaintiff could successfully rely on s.117 was correct.

34. I think that the Court should take the exceptional, but not unprecedented, step of overruling Henry v. Boehm. The decision and essential parts of its reasoning are erroneous; it does not rest upon a principle carefully worked out in a significant succession of cases; there was a dissenting judgment; and the decision has not been independently acted upon in a manner which militates against reconsideration. These are all matters which make it proper to overrule the case: see John v. Commissioner of Taxation (1989) 63 ALJR 166, at p 174; 83 ALR 606, at p 620. Moreover, the doctrine of stare decisis has less force in constitutional cases than in other cases: Parliament cannot legislate to overturn an erroneous constitutional decision: Queensland v. The Commonwealth (1977) 139 CLR 585. But most importantly, the decision, if followed, will greatly reduce the scope of a great constitutional protection for the residents of this country. In these circumstances, I think that it is proper for the Court to overrule Henry v. Boehm.

35. Apart from a brief reference to the judgment of Griffith C.J., I have not referred to Davies and Jones v. Western Australia. However, neither the actual decision nor its ratio decidendi seems to me to have any bearing on the present appeal. It is, therefore, unnecessary to come to any conclusion as to whether it was correctly decided or whether all the statements in the judgments in that case were correct.

36. Nothing concerning the practice of law in Queensland provides any ground for concluding that, by necessary implication from the assumptions and structure of the Constitution, the practice of law is outside the scope of s.117. Indeed, many considerations point to the practice of law in Queensland, as in other States, as a subject-matter which is of national and not purely local concern. It is a matter of national importance that, if they wish, interstate residents should have the services of legal practitioners from their own State when conducting litigation in the courts of another State. It is a matter of national importance that, if they wish, State residents should be able to utilise the services of interstate practitioners in conducting litigation in courts of their State. The practice of law also plays an increasingly important part in the national economy and contributes to maintaining the single economic region which is a prime object of federation. There is no ground for concluding that the right to practise law is excluded from the protection given by s.117.

37. It remains only to consider whether the requirements of the Rules concerning residence in and cessation of practice outside Queensland subjected Mr Street to a disability or discrimination which would not be equally applicable to him if he were resident in Queensland. This requires, as Stephen J. pointed out in his dissent in Henry v. Boehm (at p 501), a comparison between Mr Street's actual situation and a hypothetical situation which differs from his actual situation only by assuming that he is a resident of Queensland. When that comparison is made, it is readily seen that Mr Street was treated differently on the ground of his New South Wales residence because, unlike his position as a hypothetical Queensland resident, he could not be admitted to practice in Queensland without giving up his residence and his practice in the State where he resides. According to the Full Court's interpretation of the Rules, residence in Queensland was an implied condition of admission. And the effect of par (6) of Form 10 was that, to obtain admission in Queensland, Mr Street was required to abandon his practice in the State in which he was resident. If he were resident in Queensland, he would not be required to give up either his residence or his practice in the State where he resided. Hence, he was subject to discrimination (refusal of admission unless he abandoned his practice and his residence) which would not be equally applicable to him if he were resident in Queensland.

38. The appeal should be allowed. The order of the Full Court of the Supreme Court should be set aside. The matter should be remitted to that Court so that an order can be made for Mr Street's admission.
The Stated Case

39. In my opinion the amended Rules also subject Mr Street to a disability or discrimination which would not be equally applicable to him if he were a resident of Queensland. If Mr Street were a Queensland resident, he would not be refused admission because he wished to practise principally in the State where he resided. However, the practical impact on him of the amended Rules is that, if he wishes to practise principally in Queensland, he must abandon his present New South Wales residence and reside in Queensland. Although in form the amended Rules require Mr Street as a hypothetical Queensland resident and as an actual New South Wales resident to practise principally in Queensland, the factual impact of the amended Rules is that Mr Street as a resident of New South Wales can only comply with them by abandoning his New South Wales residence. Hence, the factual effect of the amended Rules is that he must abandon his New South Wales residence. As a hypothetical Queensland resident, he would not be required to abandon his residence to practise principally in the State of his residence.

40. Question 1 in the stated case should be answered to the effect that r.15(e), Form 10 par (6) and r.15B, in so far as they require him to have an intention to practise principally in Queensland and to practise principally in Queensland during the period between conditional and absolute admission, do not apply to Mr Street if he makes a further application for admission. It is unnecessary to answer Question 2.

Orders

ORDER IN MATTER No. B45 OF 1987

Application for special leave to leave granted.

Appeal allowed.

Set aside the order of the Full Court of the Supreme Court of Queensland.

Remit the matter to the Supreme Court of Queensland for the making of orders in accordance with the judgment of this Court.

No order as to costs.

ORDER IN MATTER NO. B32 OF 1988

Answer the questions in the stated case as follows:
1. Are the Rules of the Court relating to the

admission of Barristers of the Supreme Court of Queensland, as amended by Order in Council dated (2) July 1987, invalid as being contrary to Section 117 of the Constitution?

Answer: Rule 15(e), par.(6) of Form 10 and Rule

15B(2) are inapplicable to the plaintiff to the extent that they would require him, on any fresh application for admission, to have an intention of practising principally in Queensland or so to practice during the period between conditional and absolute admission.

2. Are the Rules of the Court relating to the

admission of Barristers of the Supreme Court of Queensland, as amended by Order in Council dated (2) July 1987, invalid as being contrary to Section 92 of the Constitution?

Answer: Unnecessary to answer.

No order as to costs.