Street v Queensland Bar Association & Ors; Street v Queensland Bar Association & Ors; In the Matter of Robertson
[1989] HCATrans 49
IN THE HIGH COURT OF AUSTRALIA Office of the Registry
Brisbane No B32 of 1988 B e t w e e n -
ALEXANDER WHISTLER STREET
Plaintiff
and
QUEENSLAND BAR ASSOCIATION
First Defendant
QUEENSLAND BARRISTERS BOARD
Second Defendant
THE ATTORNEY-GENERAL IN AND
FOR THE STATE OF QUEENSLAND
Third Defendant
Case stated
Office of the Registry
Brisbane No B45 of 1987 B e t w e e n -
Street(2) ALEXANDER WHISTLER STREET
Applicant
and
QUEENSLAND BAR ASSOCIATION
First Respondent
QUEENSLAND BARRISTERS BOARD
Second Respondent
THE ATTORNEY-GENERAL IN AND
FOR THE STATE OF QUEENSLAND
Third Defendant
Application for special leave to appeal
ClT 1 14/3/89 Office of the Registry
Sydney No S58 of 1987 In the matter of - The Rules relating to the
Admission of Barristers of
the Supreme Court of Queensland
And in the matter of -
TIMOTHY FRANK ROBERTSON
Case stated
MASON CJ
BRENNAN J
DEANE JDAWSON J
TOOHEY J
GAUDRON J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 14 MARCH 1989, 'AT 10.16 AM
Copyright in the High Court of Australia
MR D.M.J. BENNETT, QC: In the first two matters, if the Court pleases, I appear with my learned friend,
MS M.C. WALKER, for the applicant in the special leave application and the plaintiff in the stated
case. (instructed by M.G. Lyons & Co)
MR T.F. ROBERTSON: I am the applicant in the matter of ROBERTSON, if it please the Court.
ClTl/2/SDL 2 14/3/89 Street(2) MR R.V. HANSON, QC: If the Court pleases, in all matters I
appear with my learned friend, MR W.M. BOULTON,
for the Bar Association of Queensland. (instructed
by W.H. Tutt & Co)
MR J.W. GREENWOOD, QC: May it please the Court, in all matters I appear with my learned friend,
MR W.M. BOULTON, for the Queensland Barristers
Board. (instructed by W.H. Tutt & Co)
MR G.L. DAVIES, QC: May it please the Court, in all matters I appear with my learned friend, MR J. DOUGLAS, for the Attorney-General for the State of
Queensland. (instructed by the Crown Solicitor
for Queensland)
Your Honour, could I indicate at this stage
that as between those respondents it has been
agreed, subject to any view that the Court might
have, that I should go first. And might I mention also that each of those respondents also opposes
any leave being granted, if it is sought, to reopen
any decisions of this Court and, in particular,
the decision of this Court in DAVIES AND JONES
V WESTERN AUSTRALIA and HENRY V BOEHM.
MASON CJ: Yes, Mr Davies. There is no objection to your
going first, Mr Davies, for the respondents.
MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:
If the Court pleases, I appear with my learned
friends, MR T. ROSE and MR A. ROBERTSON, to intervene
in all matters on behalf of the Attorney-General
for the Commonwealth. (instructed by the Australian
Government Solicitor)
We would oppose leave being given to reargue
HENRY V BOEHM. Subject to that reservation,
Your Honour, we support the plaintiffs in the result in all matters both on section 92 and
section 117.
MASON CJ: Yes, Mr Solicitor. MR K.H. PARKER, QC, Solicitor-General for Western Australia:
If it please the Court, I appear with my learned
friend, MRS M.A. YEATS, in each of the matters.
(instructed by the Crown Solicitor for Western
Australia)
Our submissions would oppose the reopening of HENRY V BOEHM, and otherwise would be against
the interests of the applicants/appellants.
MASON CJ: Yes.
ClTl/3/SDL 3 14/3/89 Street(2)
MR J.J. DOYLE, QC, Solicitor-General for South Australia:
If the Court pleases, I appear with my learned
friend, MRM.J.M. QUINLAN, to intervene for the
Attorney-General for the State of South Australia.
(instructed by the Crown Solicitor for South Australia).
If the Court pleases, our intervention is
in support of the plaintiff/applicant and in support
of Mr Robertson although perhaps I could indicate
that our support is based on section 92. In relation to section 117 our submissions will be opposed
to those which I anticipate will be presented
by the plaintiff and by Mr Robertson. We would also oppose leave being granted to reopen the
correctness of the decision in HENRY V BOEHM and
DAVIES V THE STATE OF WESTERN AUSTRALIA.
MASON CJ: Yes, Mr Solicitor. MR K. MASON, QC, Solicitor-General for New South Wales:
If the Court pleases, I appear with my learned
friend, MR R. SACKVILLE, for the Attorney-General
for New South Wales, intervening. (instructed
by the Crown Solicitor for New South Wales)
Our position is the same as that just spoken
by my learned friend, Mr Doyle, from South Australia.
If I can just clarify one aspect of our position
on section 92, which I think accords with that
of my learned friend: we oppose the plaintiff
succeeding by virtue of the intercourse limb but
support success by virtue of the trade and commerce
limb. In that wise I believe we may be at variancewith the position to be adopted by the plaintiffs.
(Continued on page 5)
ClTl/4/SDL 4 14/3/89 - Street(2)
MASON CJ: Thank you, Mr Solicitor. Yes, Mr Bennett. MR BENNETT: May it please the Court. I hand up to the Court our outline of submissions and I also hand
to the Court a bundle of folders containing cases
and materials not in our list of authorities.
They.are in the order in which I will be referring
to them.
MASON CJ: Yes, Mr Bennett. MR BENNETT: If Your Honours please, Your Honours will see that the first matter I propose to deal with concerns the leave application only and, indeed, may not concern most of my learned friends.
The submission there will be, very shortly, that the rules applied in Queensland at the time of the
Full Court decision in this matter were, very
simply, that one was excluded on the ground of
non-residence simpliciter and that HENRY V BOEHM,
DAVIES & JONES V WESTERN AUSTRALIA, and all the
other cases, can be simply distinguished on that
basis. That submission has an associated submission, which I assure the Court I will deal
with very briefly indeed, but I did refer to itwhen I made the application for special leave
before, and that is that the line of Queensland
cases is wrong for the short reason that a form
cannot govern the construction of rules and
cannot override what the rules provide. That will be very short~ It will also be necessary for me to make a
very short submission referred to paragraph 4
to the effect that the amendments were not
retrospective as far as Mr Street is concerned,
and those matters, as I say, relate to the leave
application and will not take between them very
much time. Coming to the new rules, the principal matter on which we rest our case is
section 117 and I will, as has been
anticipated by all my learned friends, be seeking leave to argue that HENRY V BOEHM and DAVIES & JONES
V WESTERN AUSTRALIA should no longer be followed,
and in the course of that I will be taking
Your Honours, if permitted to do so, very briefly
to some United States and European authority on
constitutional provisions having asimilar purpose,
although certainly not in the same form, to show
the approach that has been taken in relation to
them.
ClT2/l/HS 5 14/3/89 Street(2)
MR BENNETT (continuing): Finally, I will come to section 92. Our primary submission there is based on intercourse
and a subsidiary submission is based on trade and
commerce and that is referred to very briefly at the
end of the submissions. I will not be spending very
much time on trade and commerce; our principal
submission on section 92 concerns::~intercourse.
Now, the first matter is that the Court applied
a decision of the Queensland Full Court in RE SWEENEY
which itself conveniently set out the whole history
of the Queensland relationship to interstate barristers.
I do not propose to take Your Honours at all to that
history - it is not necessary to do so. It is of some
historical interest that many of the great names at
the New South Wales bar seem to have attempted to make
application such as that being made by Mr Street,
going back well into the last century. The history of it is all set out in the judgment of :tvtc Justice W.B. Campbell
in RE SWEENEY, and as I say, I will not take Your Honours
to it. It is reported in (1976) Qd R 296, and all I
seek to get from this case is that the common law, if
form and operates so as to exclude simpliciter a
I may so describe it, rule which has been developed in
person who is not a resident. Your Honours see the judgment of the acting Chief Justice commences at
page 296, says the applicant is a Victorian barrister
who does not intend to become a resident of Queensland.
The rules are set out and the rules themselves contain
no discrimination, they simply provide that one of the
eligible qualifications is being admitted as a barrister
at law elsewhere, New South Wales or Victoria. Then
rule 38 provides every person seeking admission must
include matters in form 10. And the two paragraphs of
form 10 are set out two-thirds of the way down page 297.
First is:
(6) That I ceased to practise as a barrister
in (here set forth the dates .....
(7) That I arrived on the --- day of --- 19
in the State of Queensland.
He then says, on the top of page 298:
Given the continuance of his present
intentions he will never be able to depose
in accordance with the requirements of -
the form. And, after referring to RE HOLMES, at 299F. His Honour describes the result of that decision and then at G says this:
C1T3/l/JH 6 14/3/89 Street(2) Holmes decided that, from the requirement
that paragraphs 6 and 7 of Form 14 be
included in the affidavit, there arose the
clear implication that "an applicant for
admission who is a barrister previously
admitted elsewhere should have ceased to
practise as a barrister in the other Court
or Courts to which he has been admittedelsewhere, and -
we stress the word "and" -
should have become a resident of this
State, before applying for admission as
a barrister here".
Then, there is a very short dismissal of the 117 argument
an the basis of HENRY V BOEHM, with no reasoning to
support it. Mr Justice D.M. Campbell dissented, Mr Justice W.B. Campbell set out the whole history of
the matter, going back to the last century. At
page 308 he refers to a statement in EVATT where
Mr Justice E.A. Douglas dissented and said:
I do think that, as our rules contemplate
reisdence, one should be very slow to hold
that a junior barrister -
et cetera. At page 310, the conclusion he comes to
at Eis that:
(Continued on page 8)
C1T3/2/JH 7 14/3/89 Street(2) MR BENNETT (continuing):
Although the statement of residence by
itself may not be a matter required to
be included in the affidavit by virtue of r.38(d),
the history of the residential requirement
unambiguously expressed in the 1866 rules and
carried through in the forms contained
in the 1880 and 1896 rules, together withthe matters specifically set out ..... of form
10, and not disregarding the initial
statement of residence in Queensland -
that is in the jurat, I should say -
have persuaded me that the present Rules
retain the residential requirement .... .
reinforced by ..... r. 15: "Subject ... to the
provisions of these Rules".
Again, HENRY V BOEHM is referred to. The basis on which HENRY V BOEHM is applied is an interesting
one. It appears at page 312, and I mention it
now to avoid coming back to the case later.
His Honour refers to HENRY V BOEHM and then says:
The Queensland Rules, as I have said, require
such applicants not merely to reside in
Queensland for a limited period but to be residents of Queensland at the time of their admission. Although the point was not raised by the applicant, I am of the opinion that
a law which requires a person to be a resident
..... in order to qualify ..... is not invalidated
..... because the applicant has become a residentof the States, prior to making application .....
Such a law does not subject a person resident
in another State to a disability.
In other words, a law which says you must become
a Queensland resident does not discriminate
because once you have become one you are a
Queensland resident and there is no discrimination. We would submit that argument is simply
untenable on any basis. But that was the decision in RE SWEENEY. Now, in the present case the Full Court regarded itself as bound
by HENRY V BOEHM and there was no discussion of
any basis on which it might be distinguished. Now, we submit that so far as the old practice was concerning, that is erroneous. The ratio of HENRY V BOEHM was twofold. I have set one of them out in the submissions, the other I have to explain.
HENRY V BOEHM said, first of all, that a three
month residence requirement was not a breach of
section 117 because that applied equally to a
resident and a non-resident; both had to res.ide
in South Australia for three months. That is
the first aspect of the HENRY V BOEHM decision
ClT4/l/MB 8 14/3/89 Street(2) which, ultimately, I will be seeking to attack.
The second basis of the decision was that because
part of the discrimination in the statute referred
to an exemption in favour of a person domiciled
and resident in South Australia, following
DAVIES AND JONES the imposition of a double
requirement did not discriminate. So a statute that said, for example, "These benefits shall
only be available to persons resident in Queensland
whose names do not begin with X", would not be a
discrimination on that test because it imposes
a second requirement. Those are the two bases
of the decision in HENRY V BOEHM but neither is
relevant here when one is talking about pure
residence and nothing in HENRY V BOEHM suggests
that a discrimination, a refusal to admit a
barrister, for example, on the basis of residence
alone would be justifiable, and the points are
simple as that.
Now, there is still one hurdle I have to
leap and that concerns paragraph (6) of the form.
Your Honours recall paragraph (6) is one which
requires giving up practice in another State.
That seems to have been regarded by
Mr Justice Wanstall as being merely ancillary
to the other aspect of form. In this case
there was no argument in the Full Court by therespondents based upon the inability to comply
with paragraph (6) of the form so, we take it,
it is not in issue in this case in any event,
it seems to have been accepted that that paragraph
does not apply.
(Continued on page 10)
ClT4/2/MB 9 14/3/89 Street(2)
MR BENNETT (continuing): But in case that is wrong, we would submit, thirdly, that in any event the
form cannot govern the rules. May I just briefly remind Your Honours of what was said in PERPETUAL
TRUSTEES V HOSKEN, 14 CLR 286. That is one
of the line of cases based on the New South
Wales REAL PROPERTY ACT and the use of forms.
It was on the supplementary list of authorities which contained only Commonwealth Law Reports.
I think Your Honours do have it. It is a very
short passage.
McHUGH J: It is in your list of documents that you handed
up.
MR BENNETT: I am sorry, Your Honours, I had not appreciated
that. It is 14 CLR 286. The Chief Justice Sir Samuel Griffith, at page 289, simply says
this - it is point 6 of the page:
The substance of the scheme of the
TRANSFER OF LAND ACT was to substitute
conveyance by registration for conveyance
by deed. For the purpose of facilitating
the carrying out of that scheme certainforms of instruments were given in the Schedules -
and, stopping there, we would say, here, for
the purpose of facilitating applications to
the Court for admission certain forms were givenin the schedules -
but the Act nowhere said that these forms
should be used precisely as given. Indeed, as I will show Your·Honours, these rules
say the opposite, but I will come to that.
On the contrary, the forms may be altered
and modified, as I shall show.
And that is the same in this case.
Forms of this sort, like forms for use in judicial proceedings -
which these are -
are good servants but bad masters, a
proposition which is sometimes - too·often
indeed - forgotten. I should like upon that point to adopt the language of a
distinguished predecessor of mine in the
presidency of the Supreme Court of Queenslandin a case decided in 1868 in which
substantially the same point was said .....
Cockle CJ said:- "It is more reasonable
C lTS/1 /ND 10 14/3/89 Street(2) to suppose that the operations of the
Registrar-General's office should be
adapted to the transaction of business than
that the transaction of business should
be adapted to suit the Registrar-General's
office."
And here, we submit the same: it is more reasonable
to suppose that the rules concerning the admission
of barristers and the requirements for their
admission should not be adapted to suit the
forms but the forms should be adapated to suit
them.
I think Your Honours have a copy of the
rules for admission in Queensland. It is the
rules made under the SUPREME COURT ACT of 1921,
relating to the admission of barristers to the
Supreme Court of Queensland .. And the only one
I want to refer to is the second last, rule 57,
which simply says:
The forms in the Schedule to these
Rules shall be adopted and they shall be
applied where appropriate.
And we say, very simply, if you do not reside
in Queensland and you have not ceased to practise
as a barrister somewhere else, it is not appropriate.
And to suggest that the draftsman of the rules
was imposing a requirement of ceasing practise
as a barrister and being a resident by the indirectand rather inelegant way of putting in a form:
I ceased to practise in --- and I arrived
in --- in the State of Queensland
something which can apply to the most temporary
transient, we would submit, simply defies reason.
And the approach taken by the Full Court
in RE HOLMES and RE SWEENEY and in this case,
we would submit, is simply wrong.
BRENNAN J: What operation do you given to rule 38(d)?
MR BENNETT: Your Honour, that simply is a procedural
requirement making form 10 applicable only to
people who rely on a previous admission. It
is simply saying, "If you're in that category
you use a different form which sets out these
matters. But had it been intended as a matter of substantive
law to impose the suggestions in paragraphs (6) and (7), one would have thought the rules would have said so. I do have to make one concession in making this sul::mission
and that is that these rules have been there for a long time
and the decisions have stood for a long time and the rules have
not been amended, no doubt, with those who would have amendedthem knowing of the authorities and I do have to concede that.
ClTS/2/ND 14/3/89 Street(2)
MR BENNETT (continuing): But,in my respectful submission,
that is insufficient to cause a construction to be
adopted which makes tbe tail, if I may use the
metaphor, wag the dog. A form is a convenient method of enabling the rules to be applied. It is
not something which itself imposes requirements as
was said by this Court in HOSKEN and the points
are short and simple as that.
The final matter in relation to the leave
application is the retrospectivity of it. The Queensland
ACTS INTERPRETATION ACT which is the next document
in the bundle - - -
DEANE J: Mr Bennett, I follow the bit about ceasing to practise. Has anybody said that under these rules that you have got to show that you were resident? MR BENNETT: In RE SWEENEY and in RE HOLMES, Your Honour.
DEANE J: What, independently?
MR BENNETT: Yes, Your Honour, as I understand that is - - - DEANE J: Do not go to it. MR BENNETT: If Your Honour goes back to RE SWEENEY, Your Honour will see at page 299 - 299 puts them
cumulatively at G:
"an applicant for admission ..... previously
admitted elsewhere should have ceased to
practise ..... in the other Court ..... and should
have become a resident.
And more clearly perhaps, from my point of view, at
310 midway between E and F:
the present Rules retain the residential
requirement.
DEANE J: And that comes from (6), (7) and (14) of that form? MR BENNETT: (6) and (7) of form 10 - paragraph (6) and (7) of form 10 which is set out on page 2~7 of the report.
DEANE J: I see. MR BENNETT: There is no(l4l There is a subtle one in
paragraph(8)of the form but that is not really a
barrier to an interstate applicant where you haveto give referees who are resident in Queensland
but I am not concerned with that. The ACTS INTERPRETATION ACT 1954 has the -
DEANE J: Can I just interrupt you again. In any of these cases did they define what they meant by "resident"?
ClTb/1/BR 12 14/3/89 Street(2)
:t,,lR BENNETT: I do not think so, Your Honour. That is not in any way relevant for my argument because - - -
DEANE J: But in one sense, anybody who is in Queensland and who
has arrived there could be said to be temporarily
resident in Queensland.
:t,,1R BENNETT: They have certainly excluded that meaning by their decisions in all the cases where New South Wales
barristers were excluded. They have treated the
words "arrived in Queensland" as meaning, arrived
with the intention of establishing permanent residence.
But the subtle distinctions which are relevant in some
cases between residents, permanent residents and so on,
we say,simply do not arise because we simply say the
CONSTlTUTION says residents and these cases say the
rule means residents and we do not need to look at -
and clearly Mr Street is not, whatever view one takes
of it.
(Continued on page 14)
C1T6/2/BR 13 14/3/89 Street(2)
MR BENNETT (continuing): He, like Mr Sweeney and Mr Holmes, he arrived on the morning of or the day before his
application for admission with the intention of
leaving that night. Now, the ACTS INTERPRETATION ACT section 20 is the standard retrospectivity provision
which appears in many of these Acts and it simply
provides - it is on the third page of the document
I have given Your Honours:
Where any Act repeals or amends ..... wholly or
in part any former Act ..... then, unless the
contrary intention appears, such repealor amendment ..... shall not -
(c) Affect any right, interest, title, power
or privilege created, acquired, accrued,
established, or exercisable ..... prior to such
repeal or amendment.
It is section 20(l)(c).
MASON CJ: Thank you. MR BENNETT:
And it applies to regulations by virtue of - or orders in counsel - by virtue of regulation 5(2)
which provides: In any Act every reference to any other Act,-
includes -
a reference to Proclamations -
et cetera, and section 3 says:
The ...... provisions of this Act ..... shall
apply to every Act (including this Act).
So it applies to regulations. Even without that, of course, the common law is reasonably clear in
relation to that sort of matter. This was a
case, I remind Your Honours, where the amending
regulation, to which I will take Your Honours in a moment, and which says nothing about its
transitional operation, came into effect on
the day before the first hearing of the specialleave application in this Court. I will have
something to say later about the significance
of that. But the order in counsel which I have given Your Honours says nothing about when it
comes into effect. It simply no doubt comes into
effect immediately and it is 2 July 1987,which
was a Thursday, this application being set down
for hearing in this Court at Brisbane on the Friday
and it amends the rules in a number of respects.
The effect of that on this case was discussed
by this Court in VICTORIAN STEVEDORING V DIGNAN,
which is a case on the supplementary CLR list, and
ClT7/l/VH 14 14/3/89 Street(2) I have not given it to Your Honours. It is a
lengthy case; it is 46 CLR 73. What this case says is that an appeal to this Court is an appeal
stricto sensu and therefore one applies the law
as it existed at the date of the hearing below.
That was a particularly strong case because
regulations under which the appellant had been
convicted were disallowed by the senate after his
conviction and before the appeal in this Courtand it was held, never the less, that the conviction
had to stand because the Court could only apply the
law as at the date of the hearing below.
In the judgment of the Chief Justice and
Mr Justice Starke at page 85, Their Honours said
that. They refer to the regulations being disallowed at point 2 and then say:
It is unnecessary, in our view, to determine whether the Regulations so disallowed cease
to have effect from the beginning, that is,
as if they had never existed, rather than from
the point from when they were disallowed.
Just stopping there, in other words, it does not
matter if the repeal or amendment is retrospective
or not; this rule flows out of the powers of thisCourt, not out of the retrospectivity of the law.
(Continued on page 16)
ClT7/2/VH 15 14/3/89 Street(2) MR BENNETT (continuing): Their Honours go on:
Assume, however, that they ceased to
have effect from the beginning, still
the disallowance could not affect
transactions that were passed and
closed. Here, convictions had taken
place, and, if no appeal had been brought,
the transaction, undoubtedly, would have
been passed and closed -
and it would have been the same, of course, if he
had been acquitted on some other ground and there
had been an appeal against that other ground, leaving aside the problems about appeals from
acquittals, the result would have been the same -
The question then is whether a right of
appeal to this Court, and an appeal brought
pursuant to that right, prevent thetransaction being treated as passed and
closed. In our opinion they do not, in
the present case. "Appeal" is used in
more senses than one -
and they are set out:
Consequently the only question for
this Court is whether the convictions
or adjudications were, on the materials
before the tribunal from which this
appeal is brought, in accordance with
the law as then existing. If they were -as we think was the case - the transaction
was closed -
et cetera. Mr Justice Dixon, as he then was, at page 106 to page 107, set out the problem and
then says at the top of page 107, line 3:
The appeal to this Court is given by
sec. 73 of the CONSTITUTION, which provides that "the High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments -
et cetera, and he then answers the question he
poses at page 110, three lines from the bottom,
having given a long discussion of what the position
was in England at the Court of Appeal:
On the whole, I am of opinion that the
appellate power does not enable or
require this Court to deal with the
ClTS/1/HS 16 Street(2) rights and liabilities or
immunities of the parties which have
been acquired, incurred, or secured
after the judgment appealed from,
and that it is confined to the
position of the parties at the time
the judgment complained of was given.
Mr Justice Rich reached the same conclusion at
page 87 point 5. I will not read Your Honours that passage.
DEANE J: What does this mean, that is your argument
we should admit your client as from three months ago?
MR BENNETT: Your Honour makes the order the court would have made, that would not involve the order
itself being retrospective but it would involve
making the order and it may well be that the
correct way of doing this under the provisions
we are operating under is, for the first time in
its history, for this Court to make an order
admitting the practitioner. There may be problems
with remission on the basis that the Court is doing
what the court below should have done at the timeand we would submit the appropriate order, if
leave is granted and the appeal is allowed, is
that this Court order - I hope I do not need to
put on my full-bottomed wig to ask for it, that
this Court order that Mr Street be admitted to
the Bar of Queensland.
DEANE J: As from three months ago? MR BENNETT:
We would be content with as from the date of the order, Your Honour. It is not necessary
to.decide whether one needs to take that step, probably not.
DEANE J: I was just pursuing the theory of your application
to this case. I mean, your first proposition must be that MEAKES V DIGNAN is authority for
the view that if somebody was acquitted and an
appeal lies this Court should convict, even though
the relevant law was retrospectively repealed - - -
MR BENNETT: Yes, subject to the problems arising out of MESSEL's case, yes, Your Honour.
DEANE J: - - - and that the Court has no choice. MR BENNETT: No, Your Honour, that 1s so. DEANE J: And what, should, on this approach, the conviction be back-dated for three months?
ClT8/2/HS 17 14/3/89 Street(2) MR BENNETT: That is not strictly necessary. The effect of an appeal of a court making the
order that should have been made would not
necessarily require that the order itself be
deemed to have been made at the previous time;
it might, but, in my submission, one does not need
to pursue that. We do not specifically seek retrospective admission. There is no suggestion that my client has been appearing and seeks to
validate things he has been doing.
(Continued on page 19)
ClT8/3/HS 18 14/3/89 Street(2)
GAUDRON J: But, surely, Mr Bennett, it is only if it is
retrospective that there is compliance with the
law?
MR BENNETT: Your Honour, if one takes the theory to its
logical conclusion, that is so. But if that is right there is no reason why that cannot be done,
I suppose; there is no reason why this Court
could not say, "Order that he be admitted as of a
previous date". I mean, there are cases where orders are made taking effect as from times other
than the date of the order and if that is the
logical conclusion, we do not quail from it.
But the fact that it might be does not cause any
doubt to be cast on the proposition laid down
in that case as to the nature of an appeal.
The Court does what the court below should have done.
We submit, then, firstly that this Court
would make an order on the basis of the law as
it then was and, secondly, in any event, even
if it would not, these regulations are not
retrospective. They clearly affect rights in the relevant sense. I will not spend a lot of time on that but there are just two cases I might
remind Your Honours of: ABBOTT V MINISTER FOR LANDS, (1895) AC 425. There is a short statement
by the Privy Council at page 431 point 6:
Their Lordships think not, and they
are confirmed in this opinion by the fact
that the words relied on are found in conjunction
with the words '·'obligations incurred or imposed".
They think that the mere right ..... existing
in the members of the community or any class
of them to take advantage of an enactment,
without any act done by an individual towards
availing himself of that right, cannot properly
be deemed a "right accrued".
Mr Street, of course, has done acts towards availing himself of that right, namely, applying to the
Court and, indeed, pursuing the matter to judgment.
So we would submit it is within the qualification.
One would not be able to say that every member
of the New South Wales Bar, as at the date of
these amending regulations, had an accrued right,
but Mr Street did.
MASON CJ: Mr Bennett, in the copy of ABBOTT that we have
been supplied with, those preparing the materials
have seen fit to exclude page 431. They have
given us the rest of the report, but not that
page.
ClT9/1/SDL 19 14/3/89 Street(2)
MR BENNETT: I am sorry, Your Honours. The passage is a very short one and it is mainly the passage I have read.
I apologize for that, Your Honours. I will try and have that cured during the morning.
The other case, Your Honours, is COLONIAL
SUGAR REFINING COMPANY LIMITED V IRVING, (1905) AC 369
Your Honours, again, should have that. At page 372, point 9, seven lines from the bottom against the
left-hand margin, Their Lordships said this:
To deprive a suitor in a pending action of
an appeal to a superior tribunal which belonged
to him as of right is a very different thing
from regulating procedure. In principle,
their Lordships see no difference between
abolishing an appeal altogether and transferring
the appeal to a new tribunal. In either case there is an interference with existing
rights contrary to the well-known general
principle that statutes are not to be held
to act retrospectively unless a clear intention
to that effect is manifested.
So that is a case where even what might be thought
to be a procedural change has substantive effect
where it deprives a litigant of an existing right.
McHUGH J: Did you have an existing right to this Court?
MR BENNETT: We had a right to seek special leave,
Your Honour, yes. And, if special leave is granted, a right to appeal pursuant to that. It is a conditional right and if the condition is fulfilled it is there. (Continued on page 21)
C1T9/2/SDL 20 14/3/89 - Street(2)
MR BENNETT (continuing): Now, the effect of the rule, the amending rule, was simply to amend the form
in a number of respects and impose a requirement
in relation to admission. Now, we submit that, as amatter· of construction,could not be said to
apply to a person who has already lodged his
form. In other words, if one had, at all material times, hundreds of people every day applying from
other States to be admitted into Queensland and
one had to say which ones were governed by the
new rules and which were not, the cut-off point,
we would submit, would be the filing of the form.
At the very latest it might be the date of hearing
but certainly it could not be after judgment.
BRENNAN J: Mr Bennett, what do you say about the effect of rule 17 which requires a "certificate of the
Board in Form 1"? Does that have anything to say as to whether your client had a right to
admission?
MR BENNETT: Your Honour, that, in our submission, cannot
affect the substantive matters. I do not think in this case that was the objection taken. The
case was certainly argued below as if the
constitutional objection, if successful, would
resolve the matter.
BRENNAN J: Well, no doubt, because then the court would have exercised its exempting power.
MR BENNETT: Yes. BRENNAN J: But is it a question of a vested right to admission on which you rely or are you constrained
to rely upon the exercise of the court's discretion
and does it make any difference?
MR BENNETT: The Board does not have a discretion, Your Honour.
BRENNAN J: Not the Boart, the court? MR BENNETT: We would submit, there is, I suppose - I am not surewhat the evidence was about the Board's
certificate in this case, whether it was qualified
or not, that does not appear in the material,
but whether the Board gave a qualified certificate
I am not sure. Perhaps I should have that checked
and that should be before Your Honours. But one would have thought that that is merely a procedural
requirement by which the other rules are given
effect. What the Board does is rather like what
the registrar does in a winding-up petition, it certifies
that the documents are in order so the court can
take it from there. The Board exercises a discretion in cases where there is some problem
ClTl0/1/MB 21 14/3/89 Street(2) in relaton to moral standards or previous convictions
or matters of that sort. In the present case, as I say, I am not sure if there was a certificate
but if there was I have no problem. If there was
not,then it is my submission that it is a procedural
requirement and the entitlement is to a certificate
and through the certificate to admission. But even
if the vested right is a right to have a certificate
issued the result is the same and even if the right
is conditional it is still a right. A right which
exists subject to someone providing a certificate
or doing something in the future is nevertheless
a right, and Mr Street, on the basis of ABBOTT's
case has done something to take advantage of
that right. Those are my submissions on the
first part of the case.
I come now to the way in which HENRY V BOEHM
arises and I seek leave to argue that HENRY V BOEHM
should be overruled.
MASON CJ: Yes, it may be convenient, Mr Bennett, if you present the whole of your argument and then
the Court can consider at some later stage what
course it will take in relation to BOEHM.
MR BENNETT: Now, Your Honours, the first matter to be noted is that this is a case where the amending regulation
was clearly enacted with a view to replacing something
which was thought to be vulnerable under section 117
and I ask the Court to draw that in~erence from
the timing of the amendment.
(Continued on page 23)
ClTl0/2/MB 22 14/3/89 Street(2)
MR BENNETT (continuing): The fact that in the 89 years of Federation no one had challenged any of the decisions in Queensland on interstate admission
in this Court until Mr Street did so and a
requirement of which the courts have held to be
resident simpliciter was adopted throughout that
period,·and then one day before the hearing of
the leave application there is an amendment
changing it from residence to a formula, which wesubmit, has a substantively virtually identical
effect - and I will come to that in a moment - we
submit brings it clearly into the category of
colourable evasion. It is our respectful submission
that that is something to which the Court is
entitled to look in assessing the purpose of the
regulation and whether it falls within section 117.
There was a reference, as Your Honours will
see, in the judgment of Justice Gibbs, as he then
was, in HENRY V BOEHEM, to 'colourable evasion"as
being a special circumstance which might create a
different result.
Might I now take Your Honours to HENRY V BOEHM,
128 CLR 482? 'Now, the relevant rules are set out
in the judgment of the Chief Justice Sir Garfield Barwick
at page 486. Your Honours will see the first rule, rule 27(1) provides that:
An applicant previously admitted elsewhere
shall reside for at least three calendar
months in the State -
prior to his application for admission. Then (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.
And then there is an alternative exclusion about
people within 50 miles of the boundary, which we are not concerned with. Then, there is a further
requirement in rule 28 that a person is admitted
conditionally for one year and has got to continually
reside for one year in South Australia to get his
final admission.
Relevantly, there were two aspects to this
decision. The first was a holding that a requirement to reside for three months was not a
discrimination on the ground of residence because
it applied equally to residents and non-residents.And the second was, that the exclusion resides in and
is domiciled in~ did not effect a discrimination
because it had the double requirement. And those
ClTll/1/JH 23 14/3/89 Street(2) are the two aspects of the decision which we seek
to attack. As Your Honours will see, Mr Justice Stephen dissented and I will be
adopting in toto the reasoning put by His Honour
in the dissent on both points.
On the first matter, Sir Garfield Barwick
at page 489 point 4 said this:
But, as I have pointed out, a person resident, but not domiciled in, South
Australia, temporarily absent from
that State, perhaps to obtain or
complete his out of State qualification,
if qualified out of the State would be
in precisely the same situation as the
plaintiff. Equally after conditional
admission, the resident for South
Australia must physically reside there
for the requisite period of one year.
The rules themselves make no distinction
between those who may happen already to
be resident in South Australia and those
who do not.
And we submit that ignores the discriminatory effect
of the rule. It is rather like-if one can take
the recent English case that Your Honours may be
aware of, it is rather like saying a rule that says,
no person may wear a turban, does not discriminate
against Sikhs · because it applies equally to
Sikhs and non-Sikhs.
(Continued on page 25)
ClTll/2/JH 24 14/3/89 Street(2) MR BENNETT (continuing): We would submit that a rule which
affects the two groups in a dramatically different
way and which is a rule in relation to which
one can see or infer that the purpose is to
discriminate against interstate residents is
within the prohibition.
The reference to domicile appears most clearly
in the judgment of Mr Justice Gibbs as he then
was at page 496 and it is applying what was
said in the earlier case of DAVIES AND JONES.
DAVIES AND JONES was a case where a Western
Australia statute imposed a discrimination in
relation to probate law under which there was
an advantage given if you were resident and
domiciled in Western Australia and the Board
said that did not discriminate because it had
the double requirement. And it is that which
the majority applied in HENRY V BOEHM.
Mr Justice Gibbs, at page 496, line 4, said
this:
One thing that is clear from the words
of the section itself, and from the decision
in DAVIES AND JONES V WESTERN AUSTRALIA,
is thats. 117 does not prohibit discrimination
generally. A law of one State will be valid notwithstanding that it subjects a person'
who is resident in another State to a disabilityor discrimination, provided that the disability
or discrimination would be equally applicableto that person if he were resident in the
former State.
We do not dispute that. That is what the section says.
What the section proscribes is a disability
or discrimination based solely on the ground
of residence in another State -
and that we respectfully differ from. DAVIES AND JONES - _:_
MASON CJ: But DAVIES AND JONES does decide that, does it not?
MR BENNETT: Yes, Your Honour,· two of the three Justices decided that, Mr Justice Barton and
Mr Justice O'Connor; Sir Samuel Griffith decided
the case on another basis. He decided it on the basis that the word "domicile" in the context
was caught up in the word "resident" and, therefore,
as a matter of construction it did not - I am
ClT12/l/ND 25 14/3/89 Street(2) sorry, the word "resident" was caught up in
"domicile" and, therefore, as a matter of
construction the statute only discriminated
on the ground of domicile. The other two Justices decided what is said here. It follows that a discrimination in favour of a person who not only resides within
the State but also satisfies some additional
condition or requirement would not infringe
the constitutional guarantee (at least,
according to O'Connor J. if that other
condition or requirement was substantial,
by which it may have been meant that the
imposition of the additional condition or requirement should not have been a merely
colourable attempt to disguise the fact
that it was really based on residence alone).
We submit that is what this discrimination does.
The requirement laid down is not residence.
If Your Honours go to the Order in Council
Your Honours will see he must have the intention
of practising principally in Queensland and
he must swear to that effect in form 10 and
he must, in fact, have practised principally
in Queensland for one year.
Your Honours, it is true that it is possible
to imagine that rule operating either against
a Queensland resident or in favour of an
interstate resident. By stretching the imagination one could imagine a barrister who resides on
the Gold Coast whose principal practice is in
northern New South Wales. It is a little unlikely
one might think but it is not beyond the bounds
of possibility.
One might also, I suppose, have a barrister
who lives in Tweed Heads and practises principally
on the Gold Coast or in Brisbane; that is, perhaps,
a-little more likely, although still, one would
have thought, reasonably unlikely. There may be one or two people in that position. It is hardly likely that the draftsman of these regulations had them in mind.
(Continuing on page 27)
C1Tl2/2/ND 26 14/3/89 Street(2) MR BENNETT (continuing): It is also possible, no doubt, for
one to live in Sydney and practise principally in
Queensland by flying up every time one has a case
But we would submit that those rather whimsical examples do not disguise the truth which is that
this regulation, in substance, has one purpose
and one purpose only and that is to discriminate
against interstate residents. In support of that,
may I take Your Honours to one aspect of the history?
RE SWEENEY itself, of course, sets out all the earlier
cases but, might I remind Your Honours that in 1956
there was enacted in Queensland - this is a little
lower down in my bundle- an Act called the
BARRISTERS ACT - it is about two-thirds of the way down
the bundle.
There are three documents: a one-page
BARRISTERS ACT, a one-page BARRISTERS ACT REPEAL ACT
and a couple of pages from Hansard. I am sorry, it is out of order. Now, the BARRISTERS ACT said -
it is section 2(1) is all that Your Honours need
to go to:
A person entitled to practise as a barrister
in any other State of the Commonwealth shall
have the like right to practise in the
Supreme Court or any other court of Queensland.
Then there were some provisions. In 1961 the BARRISTERS ACT REPEAL ACT was passed of which the
only relevant provision is section 2:
The BARRISTERS ACT of 1956 is hereby repealed.
In Queensland Hansard which we have given Your Honours an extract of - - -
MASON CJ: This is the next document, is it?
MR BENNETT: Yes, Your Honour. This is the Hansard of the
BARRISTERS ACT REPEAL ACT - - -
BRENNAN J: And this is in aid of the construction of the REPEAL ACT, is it?
MR BENNETT: Yes, Your Honour; I will be putting that. BRENNAN J: Is there some ambiguity about it?
MR BENNETT: I am sorry, Your Honour. No, it is not in aid of construction; it is in aid of demonstrating purpose.
This is using Hansard for a rather different purpose
than the ACTS INTERPRETATION ACT purpose.
Your Honours see the Honourable Mr A.W. Munro
introduces the bill and on page 224, in the middle
of the first column, having set out the history,
he says:
ClT13/l/VH 27 14/3/89 Street(2) It is necessary, in the public interest, to
have a strong, independent and capable Bar
in Queensland, and there are indications that,
if the practice under the 1956 Act was continued,it would have the effect of weakening the
Queensland Bar. This could be brought about particularly by companies, which have head
offices in Sydney and which become involved
in litigation, engaging members of the
New South Wales Bar to appear in cases before
Queensland courts.
And the next sentence is interesting:
The effect of this might well be that members
of the Queensland Bar would appear in important
cases as juniors to New South Wales leaders,
and this would ultimately be detrimental to
Queensland interests.
No doubt they would learn some bad habits, Your Honours.
It goes on, saying:
A further reason ..... is that the Queensland Bar
must be regarded as the logical training
ground of ..... judiciary.
And then Mr Duggan asks -interjects:
Did the Bar Association ask for this?
Mr Munro:
Yes, you heard that from me in 1956 -
and so on. Then there is an interjection which I plead not guilty to at the bottom of the page.
Now, we submit that what that demonstrates is that
the reversion to RE HOLMES and the line of cases which
were applied in RE SWEENEY was a deliberate and
desired consequence of the repeal of the BARRISTERS ACT and that the legislature has, in that way, given its
imprimatur to that line of authorities and shown that
the continuing character it bears - if there were any
doubt about it anyhow - is a discriminatory character.
(Continued on page 29)
ClT13/2/VH 28 14/3/89 Street(2)
MA.SON CJ: Does history reveal what particular event triggered
off the introduction of the REPEAL ACT?
MR BENNETT: I think a change of government, Your Honour. As I read the annexed speech by the Opposition member
it seems that the other party, the Labor Party, I
assume, had introduced the Bill in 1956 and theLiberal Party repealed it in 1961.
McHUGH J: I had always understood the 1956 Act was introduced so that Mr J.W. Shand, QC could appear in a defamation
action for a Queensland politician.
MR BENNETT: Your Honour has the advantage of me. BRENNAN J: I do not know that it was a defamation action.
MR BENNETT: Your Honour also has the advantage of me. But, of course, one does not really need to go to Hansard
to derive the purpose of this legislation. It is,
we would submit, abundantly clear. And one asks
oneself - and I will repeat this question when I
take Your Honours to the American authorities - what
possible justification could there be other than
protection for discrimination which, of course, are
two sides of the same coin. It cannot seriously be
suggested that it is to enable barristers to be
convenient to the courts if matters are put on at
short notice because a barrister whose principal
practice is in Mount Isa is entitled to admissionand to practise in Brisbane, but one whose principal
practice is in northern New South Wales is not.
It is clearly not any educational matter
because the rules expressly permit people who are
educated in legal education outside Queensland to be
admitted. It can hardly be ethical standards. We would submit there is simply no rational justification
except the one referred to by the minister and that is to strengthen, if one likes, the Queensland Bar.
In other words, protection and the other side of
protection, discrimination. We would submit that the timing of the amendment merely makes certain
what, in any event, would be sure without it.
McHUGH J: Could I just ask you about the operation of the new
rule 15B~ It does not apply to somebody who has the qualifications in (d)(l) or (2), does it?
MR BENNETT: No, Your Honour, it does not. It applies to a
person who has the interstate qualification. I think perhaps a sort of a London qualification,of
interstate qualification.
McHUGH J: Do you know whether or not - that .there· is any other Australian university approved by the Board other
than the Queensland university within the meaning of
(d) (2)?
ClT14/l/BR 29 14/3/89 Street(2)
MR BENNETT: Which rule is Your Honour referring to? McHUGH J: 15(d)(2), for example.
MR BENNETT:
I see, yes. But, Your Honour, that does not apply to a person who satisfies (d)(4).
McHUGH J: No, I appreciate that. MR BENNETT: I do not know the answer to Your Honour's
question in relation to ( d) ( 2) . There was, as I understand, no evidence of that. It may be that
my learned friend can give evidence from the Bar
table in relation to it and we would not oppose him
informing Your Honours about that,but I do not know.
Returning to HENRY V BOEHM, Mr Justice Stephen's
dissenting judgment commences at page 499, and at
point 6 of the page His Honour says this:
(Continued on page 31)
ClT14/2/BR 30 14/3/89 Street(2) MR BENNETT (continuing): To learn whether any particular
disadvantage falls withins. 117 it must be
asked whether it is one which would not be
"equally applicable" to the particular subject
of the Queen were he what he is not, that
is to say, were he in fact resident in the
legislating State. Thus the disadvantages
at which the section is aimed are those which
depend for their operation upon the condition
of not being resident in the legislating
State; for the section to apply it must
appear that were the particular subject of
the Queen resident in the legislating State
this fact would of itself either wholly remove
the disability or discrimination or else
so affect its application to him as to cause
it no longer to be equally as applicable
to him as it in fact is having regard to
his actual circumstances of residence.
In other words, one can look to the real effect
of the discrimination not to a theoretical effect.
And to say, as this Court said in that case, that
to reside in South Australia for a year is something
which is required equally of residents and non
residents, we would submit is something which
would only be accepted by the most literal minded of followers of the old school of interpretation.
His Honour says, at page 501 point 6:
The practical effect of these requirements
of residence in South Australia will no doubt
be, in all but very exceptional cases, to
compel an inter-State practitioner to give
up his practice in that other State if he
is to be admitted to practice in South
Australia.
And that is, of course, exactly the same under these rules. He then says:
How then does s. 117 bear upon the requirements of these rules;
do they subject
the plaintiff to any disability or discrimination
which would not be equally applicable to
him if he were resident in South Australia?
To answer this question the process of
comparison which the section calls for must
be undertaken, the plaintiff's actual
situation must be contrasted with a hypothetical
one which differs from actuality only because
it assumes the plaintiff to be a resident
of South Australia; in making the comparison
called for bys. 117 no departure from
actuality is to be made other than this one,
relating to the plaintiff's residence.
ClTlS/1/SDL 3 1 14/3/89 Street(2) Being thus resident in South Australia but
having previously been admitted to practice
in Victoria, his position when wishing to
use that qualification in order to gain admission
to practice in South Australia is to be contrasted -
with his position as it is in fact.The obvious difference between that hypothetical situation and the situation
with which the plaintiff is in fact confronted
is that were he already resident in South
Australia he would not have to abandon his
existing Victorian abode so as to reside
continuously in South Australia, first forthree months and then for a further twelve
months.
Then, lower down, at point 5, against the words
"they cannot" in the left-hand margin:
If the comparison called for by the section
is faithfully adhered to the possible situations
of other persons is seen to be wholly irrelevant,
the comparison to be made will ignore all
actual residents (in whatever sense that
term be used) of South Australia. This is
because s. 117 does not concern itself with
the making of any comparison between the
situation of the plaintiff were he a resident
of South Australia and the situation of other
residents of that State. Whats. 117 calls
for is, instead, a comparison between the
plaintiff's situation as it is in fact and -
the hypothetical situation. So what we have to do is say, "If Mr Street were exactly - if all
the facts relating to him were the same, except
one - that he were resident in Queensland - how
would these rules affect him?" And the answer
is obvious: he would have no difficulty in obtaining admission. He would have no difficulty in having his principal place of practice in Queensland. Or, to use the exact words of the Rule: "the
practice principally in Queensland". But for
him to do it while resident in Sydney is obviously
something much more difficult. Then he says, at page 502 point 7: I regard it as incorrect to say of a
disadvantage that because it is the consequenceof a requirement of universal application
that disadvantage is equally applicable to
all; if the discriminating factor relates
to the personal attributes of individuals
some only of whom possess these attributes
then, while the requirement may be said to
apply equally to all, the disadvantage willapply unequally for it will apply only to those
who do not possess those attributes.
C1Tl5/2/SDL 32 14/3/89 Street(2)
MR BENNETT (continuing): Then he refers to LEE FAY which I will refer to later, and he then refers
to the example of faith, which is perhaps
a useful one to illustrate the point. If I can
just summarize the paragraph which appears on
page 503, His Honour says, if you had a
constitutional prohibition in exactly the same
terms as section 115 prohibiting discrimination
on the basis of religion it would be a breach of
that to say that a person must follow a particular
religion. It would be no answer to say, "Oh well,
he can change his religion and then there is no
discrimination", which is, of course, exactly what
was said by Mr Justice Campbell in the present case
in relation to section 117.
We submit that His Honour's reasoning 1n
relation to that is far more in accordance with
the modern approach to discrimination. One does
not cease to discriminate against a group becausethe person who discriminates adopts a definition
slightly different to the accepted definition.
A person can discriminate against any - the example,
perhaps, of the Sikh and the turban is the most
convenient. There might conceivably be a non-Sikh who wants to wear a turban and there
well be some Sikhs who do not wish to wear turbans
but, in substance, le.~islation saying, "You may not
wear a turban'' is discrimination against Sikhs.
DEANE J: But how far does this go? I mean, would you say any provision requiring somebody with
non-Queensland qualifications to get practical
Queensland experience was contrary to section 117
or does this all depend on seeing this as a colourable device to get round a residential
qualification?
MR BENNETT: Your Honour, I do not quail from the harder
submission Your Honour· suggests but it is not necessary in this case to go that far. This more difficult case the Court will, of course, is a simple case of colourable evasion. In a have to draw lines and as with any new constitutional interpretation, when those lines are drawn there are obvious distinctions to be drawn in defining them.
DEANE J:
I do not really follow the logic of your argument of colourable evasion.
I mean, why
should we assume that the situation was not -
that a view was taken that the current rules
c o u 1 d no t be up he 1 d bu t th a t none the less i t w a s desirable to insist on some practical Queensland
experience for people without Queensland
qualifications who wanted to hold themselves out
as qualified to practise in Queensland?
ClT16/l/HS 33 14/3/89 Street(2)
MR BENNETT: There are three answers to that, Your Honour; the first is that has never been, suggested in
any of the cases or in Hansard as the reason for the
decisions or the policy over the years; the second is that I will take Your Honour to the American
cases which discuss the arguments put up by various cases analyse closely that sort of justification
and lay down fairly clearly that it is not a
justification. That does not mean that it may
not have been seen as such in this case, but it
is indictative. Thirdly, we would submit, perhaps most importantly that this requirement is not the one
one would lay down, if that was what one wished
to achieve.
DEANE J: I can see the force of all that you say, but what is concerning me is what if Mr Davies
has in his brief a meeting of the relevant
Queensland authorities which canvasses in great
detail the dangers of people without Queensland
experience or qualifications being held out as
practitioners, what should he have done about it?
I mean, how is that issue raised in this Court?
(Continued on page 35)
ClT16/2/MS 34 14/3/89 Street(2)
MR BENNETT: It can be raised as a matter of a priori argument, Your Honour.
DEANE J: Well, what if he has got that document in his brief?
MR BENNETT: He failed to prove it, I suppose, at the trial, if he is talking about intention. In so far as
intention may be relevant he has simply not
proved that.
DEANE J: I am sorry, what trial should he have proved it at?
MR BENNETT: The trial of the application for admission. McHUGH J: But this only came in afterwards? MR BENNETT: I am sorry, yes. Well, there may be a question as to whether it can be proved by tendering it
from the bar table or whether there should bean affidavit, matters of that sort - - -
DEANE J: Mr Davies is now trying to look as if he has got such a document.
MR BENNETT: Your Honour, the possibility that he may have such a document would not really affect
the argument. My argument is that one can, from these rules and from such material as there is,
infer a purpose. The purpose to which Your Honour refers could have been achieved in a number of
different ways and is inconsistent with it being
achieved this way. First of all why one asks,
rhetorically, should there be, or would one wish
there to be, Queensland experience in the case
of a person who has an interstate degree and not
in the person who has a Queensland degree.
The suggestion that the practice of a barrister
requires a particularly intensive knowledge of
a course or a short examination in Queensland law local law can hardly be the purpose because there is no suggestion that there is a requirement of for interstate practitioners; that might be a
different case. But that was not done. It is done by simply requiring principal place of practice, one might not practise at all. One's practice might consist of one case in the whole
year but if one says, "I intend to practise in Queensland", that is sufficient to get condition admission and final admission after one year.
It is not a requirement which one would have thought would be imposed if that were the intention and, of course, what one learns from a year of practise is very different from what one learns at a law school in any event, even if law schools
ClT17/l/MB 35 14/3/89 Street(2) were in the practice of teaching their own State's
legislation and laws as opposed to more general matters. We would submit one simply would not draw that inference from legislation worded in
this way. Also, of course, it stresses intention rather than the fact, except in relation to the
year. If the person intends, for example - suppose a person intends to practise for one year in
Queensland only, he would not satisfy these
rules because his intention is required to be
more general than that. A person who said, "I intend to practise principally in Queensland
for one year only, or for one week only" would
not satisfy this rule, it has to be a general
intention which - - -
DEANE J: I would have thought in the content of 15B(2) that what was required was an intention to practise
principally for a year?
MR BENNETT: Well, Your Honour, if so why did it not say
that, one rhetorically asks, in one l(e) and
in 3(a)(6). 3(a)(6) goes to the trouble of
having a commencing date but not a concluding date.
If the requirement was only a year one would have
thought it would have said so. We stress, Your Honour, it does not require that he have any particular
quantity of practise. A person who had a large
Queensland practice but his New South Wales practice
was bigger would not qualify. A person who had a tiny Queensland practice would qualify.
(Continued on page 37)
C1Tl7/2/MB 36 14/3/89 Street(2)
MR BENNETT (continuing): All those matters strongly suggest that what these rules were intended to
do was exactly the same as the old rules,
namely discriminate on the basis of residence.
BRENNAN J: Is that a constitutional fact which this Court must find on whatever material it can look to?
Or is a triable issue which needs to be tried?
MR BENNETT: We would submit the former, Your Honour. Purpose of legislation is something the Court
has never suggested as a matter for a trial in
section 92 cases or in any cases involving
constitutional issue.s. There may be some cases
where particular facts can be proved but normally
material such as the material we have relied on
here is material which has traditionally been used
by this Court and is available for that purpose.
BRENNAN J: So that we c~n focus precisely on your submission, if the inference that you seek to draw
were not drawn, could you then succeed?
MR BENNETT: Yes, Your Honour, because we would still rely on a lesser test based on the substantial effect
of the rule, but we address the possibility that the test the Court lays down involves purpose or
purpose and effect. In a sense the Court has a
choice. It may adopt a test based on purpose; it
may adopt one based on effect; it may adopt onebased on the combination of the two; it may adopt
one based on the existence of either. I have to address all possibilities so I address both purpose
and effect. My ultimate submission, I suppose, is
that either is sufficient but I attempt to justify
both against the Court coming to that conclusion.
BRENNAN J: Is one concerned with the purpose which might justify a discriminatory provision?
MR BENNETT: One might need to look at that, Your Honour.
For example, if one had a provision requiring a very minimal, say a one day or two day seminar on basic
differences between Queensland law and other States
law, which was required - if there was something
like that, one might well say, That was a
discrimination which one can see a justification
for. And certainly the American and European cases talk in those terms; they say that one
applies a sort of qualitative judgment to seeing
whether the discrimination is justified. In all areas, except actual examination requirements, the
American courts have now said discrimination
against interstate lawyers is not justified and that
seems to be the approach taken in Europe as well.
ClT18/l/JH 37 14/3/89 Street(Z)
BRENNAN J: What is the test, then, that we should apply in your submission?
MR BENNETT: But, Your Honour, my primary submission is
that one would not do that. My primary submission is that one would adopt the test which I have set
out in paragraph 5 of section II of my
submissions, whether the action has the purpose
or effect of discriminating against a group of
persons by reference in substance to their
residence interstate.
I should very briefly tell Your Honours about the other cases on section 117 because there were
very few of them. DAVIES AND JONES, which I seek to have overruled, is reported in volume 2 of CLR 29,
I will not take Your Honours through the case, it
simply says, as I indicated, that by majority a
requirement of domicile and residence does not
contravene. We submit, with Mr Justice Stephen, that it does. His Honour Mr Justice Stephen deals with
that second aspect at page 507, three lines from
the bottom, where His Honour says:
(Continued on page 39)
ClT18/2/JH 38 14/3/89 Street(2) MR BENNETT (continuing): There is one particular contention
urged on behalf of the defendants to which
I should shortly refer; it is that on the
proper construction of r. 27 it is not
concerned only with residence but also withdomicile. It is said that when regard is
had to sub-r. (2)(i), which exempts from
the residence requirements applicants who ordinarily reside in and are domiciled in
South Australia, it is apparent that the
relevant discrimination is by reference
to both residence and domicile, as it was
in DAVIES AND JONES V WESTERN AUSTRALIA
and is therefore not struck at bys. 117.
This contention mistakes the feature of
the rules which attracts s. 117. It is
not because those taking the benefit of
sub-r. (2)(i) are treated more favourably
than others that there is discrimination
against these others, non-residents ofSouth Australia; the discrimination is more
fundamental, it arises from the very
existence of a residence requirement. To superimpose upon that requirement an exemption in favour of a particular class
neither removes that discrimination nor
alters its character.
We would submit, in any event, that the dual
rule laid down in DAVIES AND JONES cannot be
right. It simply flies in the face, we wouldrespectfully submit, of the language of
section 117 itself. That section provides
that:
A subject of the Queen, resident in any
State, shall not be subject in any other
State to any disability or discrimination
which would not be equally applicable to
him if he were a subject of the Queen resident in such other State.
If one has a statute which says, "We", Queensland,
"hereby impose a disability on persons who are
neither resident nor domiciled in Queensland.",
that, in our respectful submission, imposes
such a disability because if you have a person
who is domiciled but not resident in Queensland
the prohibition attaches to him. One simply does not cease to discriminate because one adds
a second requirement. I gave the example of persons in Queensland whose names do not begin
with the letter X. That, perhaps, is a colourableevasion example where there would be very few
C lT 19 /1 /ND 39 14/3/89 Street(2) people affected but if a State can discriminate
against interstate residents merely by saying"discriminate against interstate residents who
also satisfy category X" then, we submit, the
protection given by section 117 is so easily
avoided as to be virtually non-existent. And, indeed, that is the effect to a large extent of the decisions of this Court in DAVIES AND
JONES and in HENRY V BOEHM and, in our respectful
submission, this Court should now overrule those
cases.
There are three other cases I simply tell
Your Honours about, they do not need to be overruled:
LEE FAY V VINCENT was a case where Western
Australia had a law against employing Chinese
in factories, there being an exclusion if one
had previously at a certain date been a Chinese
employed in a factory. It was construed by
the Court as meaning if one had previously been
employed in a factory in Western Australia.
So a Chinese who had been employed in a factory
in Victoria was not within the exemption and,
in those days, of course, the Court was more
concerned with the interstate discrimination
than the other aspect and the Court held thatthe discrimination was on the basis of past
residence not present residence, because the
plaintiff was, at the time of the action, a
resident in Western Australia and the discrimination
was based on something which had occurred in
his past, namely, his failure to have been a
resident when he had a particular position.
That is a special case concerning a special
rule. It may be right, it may be wrong. That
is for another day. Your Honours do not need to determine that in this case. There are two
other cases which referred to it: JAMES V THE
COMMONWEALTH was a case which said, as
Your Honours would be aware, in passing, that
a·restriction on importing dried fruits from other States did not contravene section 117.
That is fairly obvious, it was not concerned with residence it was concerned with goods.
And REG V SMITHERS, EX PARTE BENSON, 16 CLR, was
a case where this Court set aside a statute
which prohibited a person with even a minor
criminal conviction who was resident of another
State coming into a State.
C1Tl9/2/ND 40 14/3/89 Street(2)
MR BENNETT (continuing): Most of the Court rested that on
other grounds than section 117. One of the Justices referred to section 117 but, other than that, there
does not seem any authority in this Court. There
are some cases which, again, I will not take
Your Honours to, in New South Wales, where a rule
of court providing that security for costs can be
required from persons resident interstate is invalid
and there are some cases in Queensland saying that
a·requirement of the BAIL ACT, that a person
resident interstate not to be given bail except in more onerous circumstances, was invalid.
That really is the sum total of the authority on
section 117. There are no cases of which we are
aware, other than this one, in which HENRY V BOEHM
has, in fact, been applied or discussed.
There was one case in this Court involving the
TR.Ai~SCOVER legislation but that was merely a
strike-out application and nothing was said by the
Court on section 117 of any general relevance.
We submit the reasons why the Court should
grant leave are these. First, that the two aspects
of the decision to which I have referred are
excessively literal and apply a standard of
interpretation which is inappropriate today,
particularly to the CONSTITUTION. Secondly, the effect of HENRY V BOEHM is to make section 117
a virtual dead letter; a State desiring to discriminate
against interstate residence can do so in the easiest
possible way, by using either of the limbs of thatdecision. Thirdly, it is contrary to modern European
and United States' authority on corresponding but
different constitutional provisions. Fourthly,
it is not a case which has been extensively followed
or acted upon for a long period of time, except to
the extant that these regulations were no doubt
drafted_by a person having HENRY V BOEHM open on his
desk. - But, other than that, neither it nor even
DAVIES AND JONES which· is· a case which has been applied, in a long
line of autho~ity and, we would submit, for those
reasons, leave should be granted and the decision should be overruled.
BRENNAN J: Mr Bennett, what would happen if the Court were against you on the rec.ip.nociity . argument and for
you on the application of 117 to strike down the
amending rule of Court.
MR BENNETT: The Court would make declarations accordingly and it would probably be necessary for a fresh
application to be made.by Mr Street.
BRENNAN J: In what proceeding would we be making the declarations? MR BENNETT: In the stated case, Your Honour. That seeks a
number of appropriate declarations - I think that is
all - in relation to the validity of the rules.
ClT20/1/VH 41 14/3/89 Street(2) The final matter in relation to section 117 concerns
what has happened in the United States. I have given Your Honours a page with two lines typed on it,
the United States constitutional requirement.
Although it is shorter and uses different words, it
is not different in substance in what it seeks to
achieve.
McHUGH J: Well, that is not the view the delegates at the
convention thought.
MR BENNETT: Well, first, Your Honour, we would submit, on the
basis of COLE V WHITFIELD,that one does not look at
the convention debates for the purpose of seeing
what the intention of the draftsmen were. One looks for a much more limited purpose in relation to
which the discussion is not very helpful.
(Continued on page 43)
ClT20/l/VH 42 14/3/89 Street(2) MR BENNETT (continuing): What the discussion does show is that
they regarded the word "citizens" as inappropriate and
the phrase "privileges and immunities" one which they
were concerned about the meaning of. But the formula
which was ultimately reached really seems to have been
basically a redraft which solved those problems rather
than something which can be demonstrated to have been
intended to be narrow. One speculates, we would submit, that the founding fathers would have been surprised to
see section 117 construed so narrowly in contrast to
the way section 92 was construed, even in COLE V
WHITFIELD. It has been treated, we would submit, in an extremely narrow way rather than as a charter to
prevent discrimination against interstate residents.
The American authorities - we have given
Your Honours a bundle of them. I will go to them fairly quickly. SHAPIRO V THOMSON, 394 US 618 is the only one of the cases which is not concerned
with lawyers or professionals. It concerned a District of Columbia statute which denied welfare
assistance to people who had not been resident fora year and the relevance of it is in the broad approach
it took. It is more relevant to what I am going to
say about intercourse and what I am saying now about
section 117 but it is convenient to deal with all
the American authorities together and it is a case
referred to in many of the others.
What the court said was there is an implied
constitutional right to travel from one State to
another and one inhibits that if one imposes a
subsequent fetter by reference to the fact that one
has travelled and that, as I say, becomes primarily of
relevance in my submissions on intercourse. The passage is at page 630 and the opinion of the court,at
point 3, this is said:
We have no occasion to ascribe the
source of this right to travel interstate to
a particular constitutional provision. It
suffices that, as Mr Justice Stewart said .....
"The constitutional right to travel from one State to another ..... occupies a position fundamental to the concept ..... It is a right that has been firmly established and repeatedly recognized. " ..... [TJhe right finds no explicit mention
in the Constitution -
unlike our reference to intercourse -
The reason, it has been suggested, is that a right so elementary was conceived from the
beginning to be a necessary concomitant of the
stronger Union the Constitution created. In
ClT21/l/BR 43 14/3/89 Street(2) any event, freedom to travel throughout the
United States has long been recognized as a
. . h "
b as1.c r1.g t ..... Thus, the purpose of deterring the in-migration - I think that means immigration -
of indigents cannot serve as justification for
the classification created by the one-year waiting
period, since that purpose is constitutionally
impermissible. If a law has "no other purpose ..... than to chill the assertion of constitutional
rights by penalizing those who choose to exercise
them, then it [is] patently unconstitutional."
I do not propose to say more about that case but to go
straight to the cases now involving lawyers. The first one is KEENAN V BOARD OF LAW EXAMINERS OF NORTH
CAROLINA a decision of the District Court for the eastern district of North Carolina, 317 F Supp 1350.
The challenged law appears on page 1351 at the bottom
of the right-hand column:
Before being certified (licensed) by the
Board to practice law in the State of North
Carolina, a general applicant shall:
(6) Be and continuously have been a bona fide citizen and resident of the State of North
Carolina for ..... twelve (12) months.
That is struck down and at page 1361 in the second
column the court says this at point 6:
Rule VI(6) unconstitutionally conditions the exercise of the constitutional right to
interstate travel -
there is a reference to SHAPIRO - The right to travel and the right not to be
arbitrarily excluded from the legal profession, as pronounced in SCFIWARE, are here entwined. The right to work for a living in one's chosen occupation is for most people a prerequisite
to the pursuit of happiness. If a man may be arbitrarily made to give up his life time endeavour - even for a year - in order to move his residence, it is idle to talk: to him about Fourteenth Amendment protection of personal freedom.
And then further down the page -
Even though a one year exclusion from the
practice of law does not foreclose other avenues
of employment, just as all employment was not
ClT21/2/BR 44 14/3/89 Street(2) denied in TRUAX, the desirable, competent
attorney is doubtless much deterred from an
interstate move by it. He is likely to find
true personal fulfillment only in the active
practice of the profession to which he has
dedicated himself. An undesirable who finds
the practice only a money getting occupation
..... is not so likely to be deterred. He is
more likely to believe the grass grows greener
..... the eftect of Kule VI(6) is the opposite
of that said to be intended: the best arekept away and effectively excluded.
..... imposes a burden upon the right to
interstate travel witnout being necessary to
promote a compelling state interest.
(Continued on page 46)
ClT21/3/BR 45 14/3/89 Street(2)
McHUGH J: This case would have nothing to do with the privileges and immunity clause, it is the equivalent
of our section 117?
MR BENNETT: No, it does not, Your Honour. This one is also on intercourse but I have taken them all together
in chronological order because some of the later
ones are mixed and it is simpler to deal with them
together and then make the two submissions based
on them. The next one is GORDON V COMMITTEE ON
CHARACTER AND FITNESS, 48 NY 2d at page 641, which
is the Court of Appeals of New York. This one
does depend on the privileges and immunities
clause which is set out in footnote 2 on page 643.
At 643, the end of the second column:
The principal purpose of -
section 117 -
is to eliminate protectionist burdens placed
upon individuals engaged in trade or
commerce by confining the power of a State
to apply its laws exclusively to nonresidents.
In essence, the clause prevents a State from
discriminating against nonresidents merelyto further its own parochial interests or
those of its residents.
That, we submit, is applicable to 117.
While the precise reach of the clause must
await further clarification, it is settled
that a State may not premise an individual's
right to engage in his chosen occupation
within its borders solely on residence.
Thus, the clause has been consistently
interpreted to prevent a State from imposing
discriminatroy burdens on nonresidents,whether by means of artificial trade barriers
in the form of unequal licensing fees,
taxes ..... vendors - et cetera.
This is not to say, of course, that the privileges
and immunities clause forbids a State from
ever differentiating between residents and
non residents. Matters which directly implicate
its sovereignty, such as voting -
and that is recognized as an exception by
Mr Justice Stephen in his judgment -
or entitlement to public office furnish
ready examples of areas in which a State may
constitutionally condition eligibility upon
residence. Moreover, where the disparate
C1T22/l/MB 14/3/89 Street(2)
and 1 immunities' bearing upon the vitality of treatment does not implicate "those 'privileges 1 the Nation as a single entity", there is no requirement that the State treat ..... alike. That was a case about game fishing where residents were given prior right to certain types of hunting
where there was a shortage of the animals concerned.
Then at page 645, first column, point 3:
Nor can it be maintained that the rule works no invidious discrimination against
nonresidents. An attorney admitted to practice in one State who desires to practice
in New York must often give up an established
practice and residence, move to New York and
forfeit the right to engage in his or her chosen
occupation for at least six months and often
appreciably longer. One who desires to engage in a multistate practice, concentrating on a
particular area of expertise, is effectively
foreclosed from doing so by the requirements -
there is reference to employees. In the next
column there is an answer to Your Honour
Mr Justice Deane's question to me earlier:
It is undisputed that New York has a
constitutionally permissible interest to
assure that those admitted to the Bar
possess knowledge of the law as well as the
character and fitness requisite for an attorney.But appellant has not been excluded from membership in the Bar due to any challenge to
his knowledge of the law of this State or to
his good character. Rather, the exclusion
is based solely upon his residence in North
Carolina - a criterion which serves no purpose other than to deny persons the right to pursue
their professional career objectives because
of parochial interests. There is nothing in the record to indicate that an influx of nonresident practitioners would create, or even threaten to create, a particular evil (within the competence of the
state) to address. No valid reason is proffered as to why admission to practice law
before the courts of this State must be ma.dedependent upon residency. Indeed, aside from an oblique reference to the purported 11 dangers' 1 said to be inherent in the licensing of
nonresident lawyers, the State is at a complete
loss to justify the blanket discrimination against
nonresidents ..... Nevertheless, some have attempted
to identify reasons supporting residency requirements
On the whole, however, these justifications serveonly administrative convenience and thus are not closely tailored to serve a legitimate State interest.
ClT22/2/MB 47 14/3/89 Street(Z)
MR BENNETT (continuing): The next case is a shorter one but it deals with the problem in a rather simplistic
way, perhaps. It is a decision of the Supreme
Court of Alaska in SHELEY V ALASKA BAR ASSOCIATION,
620 P.2d 640. This again was on the privileges
and immunities clause. The rule there, as Your Honours see from the first lines of the opinion
on page 641, required:
an applicant for the Alaska bar examination
to establish domicile in Alaska at leastthirty days before the ..... examination.
It is a fairly mild requirement there. In the first column on page 643, they deal with a question
I will be coming to later. At about line 10, against the words "state oil" in the margin,
Their Honours say:
Assuming that there was once a status
distinction between engaging in common
occupations and in professinal pursuits,
it is not of constitutional significance.
The practice of law is like any other species
of trade or commerce -
that is a short answer to the other aspect of
section 92. But, more importantly, in the second
column in that page, they say, line 2:
The thirty-day residency requirement of the
rule clearly discriminates against nonresidents,
because they are denied the opportunity to
take the bar examination and, thus, precluded
from practicing law.
So the hair that was split by the majority of
this Court in HENRY V BOEHME is not even regarded as worthy of mention, in the way it is put there. It is simply a one-month residence requirement
is treated as discriminating against non-residents.
Coming to the more important cases, the United
States Supreme Court dealt with the matter in
SUPREME COURT OF NEW HAMPSHIRE V PIPER, 470 US 274.
That is not in the bundle I have given - I understand
Your Honours have that elsewhere. This was a
strong case on the facts because the applicant
lived within 400 yards of the relevant border
but on the wrong side of it. At page 277, in
footnote 1, the rule is referred to, and it says:
Rule 42 does not provide explicitly that
only New Hampshire residents may be admitted
to the bar. It does require, however, that
an applicant either be a resident of New
Hampshire or file a statement of intent to
reside there.
ClT23/l/SDL 48 14/3/89 Street(2) That is getting very close to what is done here.
In an affidavit submitted to the District
Court, the Chief Justice ..... said that ..... an
applicant for admission must be "a bona fide
resident of the State ... at the time that
the oath of office ... is administered."
So there seems to have been a practice as in the
case of Queensland. On page 278, they refer to the court below and they refer in the middle of the page to the dissenting judges below who:
found that the New Hampshire Supreme Court's
residency requirement did not violate the
Privileges and Immunities Clause. While
recognizing that Rule 42 may "serve the less
than commendable purpose of insulating New
Hampshire practitioners from out-of-state
competition -
and no doubt being led by interstate leaders -
they found several "substantial" reasons to
justify discrimination against nonresidents.
If the residency requirement were abolished,
"large law firms in distant states" might
exert significant influence over the state
bar. These nonresident lawyers would beunfamiliar with local customs and would be
less likely to perform pro bono work within
the State.
Then the Supreme Court filed notice of appeal
I am not quite sure why procedure went in that way.
(Continued on page 50)
ClT23/2/SDL 49 14/3/89 Street(2)
MR BENNETT (continuing): Then on page 280, at the end of the page:
There is nothing 1n -
various other cases -
suggesting that the practice of law
should not be viewed as a "privilege".
Like the occupations considered in our
earlier cases, the practice of law is
important to the national economy. As the Court noted in GOLDFARB the "activities of lawyers play an important
part in commercial intercourse."
The lawyer's role in the national economy is not the only reason that the opportunity to practice law should be
considered a "fundamental right". We
believe that the legal profession has a
noncommerical role and duty that
reinforce the view that the practice of
law falls within the ambit of the
Privileges and Immunities Clause.
Out-of-State lawyers may - and often do -
represent persons who raise unpopular
federal claims. In some cases,
representation by nonresident counsel may
be the only means available for the
vindication of federal rights.
That problem does not arise here, of course, because of the JUDICIARY ACT, but the problem of the unpopular litigant may well have been,
as Your Honour Justice McHugh suggested, a factor
in 1956. Then at page 285 they say: The Supreme Court of New Hampshire offers several justifications for its refusal to admit nonresidents to the bar. It asserts that nonresident members would be less likely to become, and remain, familiar with 1ocal rules and procedures; to behave ethically; to be available for court proceedings; and to do pro bone and
other volunteer work in the State. We find that none of these reasons meets the test of "substantiality". They then go through and present a priori
arguments why each of those four is not something
to which weight should be given and, without
taking Your Honours through them, the answer to
the first one is that there is no reason why a
ClT24/l/HS so Street(2) United States laywer cannot become familiar with
relevant matters and have a local agent if
necessary, there is certainly no reason to suggest
an interstate lawyer is less ethical, the
availability is dealt with by a requirement to
have an agent where a solicitor practises
interstate - it does not apply to a barrister -
and to do pro bono the volunteer work, again,there is no reason why that cannot be done.
They say that in the end - at page 288 they
come to the conclusion that it violates the
Constitution. There is only one recent case with goes the other way, of importance, and
that is the decision of the United States
CouTt of Appeals for the Fourth Circuit, in
GOLDFARB V SUPREME COURT OF VIRGINIA. In order not to confuse Your Honours, there are two cases
which bear no relationship at all to each other
and which are not the same litigant, both calledGOLDFARD V VIRGINIA, and the other one is a trade and commerce case I will be coming to later. It is
a 1975 case. This is a 1985 case, and it is
reported in 766 F 2d 859. This was a case where a requirement of examination was upheld and at page 863 the court says at the top
of the page in the first column:
In promoting this interest,
Virginia could have required that all
lawyers, including Goldfard, take
and pass the bar examination. Goldfarb concedes that this maximum burden lies
within the state's power to impose.
Virginia, however, has elected to
provide the full-time practice option
in lieu of an examination for thoselawyers who have practiced elsewhere
for five years. The state can hardly be penalized for offering a choice
between a requirement it can concededly
exact and one that many attorneys find less onerous.
So that seems to be an e~ception, that one can
have an examination requirement.
DEANE J: Except SUPREME COURT V PIPER turned to some extent on the fact that there was an examination.
MR BENNETT: Yes, and I will be suggesting, Your Honour, that a later case, SUPREME COURT OF VIRGINIA V
FRIEDMAN, has probably at least impliedly
overruled this in any event. It may depend on
the nature of the examination and how onerous it
is. One could easily imagine a provision requiring
ClT24/2/HS 51 14/3/89 Street(2) a three-year course, or even a 12-month
course, which would clearly be invalid in
relation to a barrister. A one or two-day course might well be valid. It mi3ht well be
a question of degree at that stage, whether one
could see that the purpose was genuinely to
require people to be informed about Queenslandlaw or colourably to exclude other persons.
(Continued on page 53)
ClT24/3/HS 52 14/ 3/89 Street(2)
MR BENNETT (continuing): We are living in a society, I suppose, which has had its experience of
examinations as a means of discrimination and the
old dictation test in immigration is a classic
example of that. And, had there been some prohibition against the type of discrimination
which was really being effected by that test, we
would submit, it would have been struck down,
notwithstanding that in form it was merely arequirement of literacy.
In a sense, the decision in HENRY V BOEHM,
is very much the same sort of reasoning as
applied in the case where this Court considered
Celtic was a language for the purpose of that test.
It is applying a very literal view of the
constitutional requirement.
The next case is SUPREME COURT OF VIRGINIA V
FRIEDMAN - we only have the Lexis report - it is
56 USLW 4669.
MASON CJ: When was it decided? MR BENNETT: 20 June last year, Your Honour. Justice Kennedy delivered the opinion of the court and the opening
paragraph of His Honour's judgment - I think
Your Honours may have a different copy to the one
I have.
MASON CJ: Yes, we have. MR BENNETT: Would Your Honours have the judgment or merely a summary?
MASON CJ: Not the one to which you refer. We have got an earlier judgment. Apparently we tlo bave it: 20 Jtme 1988?
MR BENNETT: Yes, Your Honour. MASON CJ: Yes.
MR BENNETT: He says: Qualified lawyers admitted to practice in another State may be admitted to the
Virginia bar "on motion", that is, without
taking the bar examination which-Virginia
otherwise requires. The State conditions
such admission on a showing, among other
matters, that the applicant is a permanent
resident of Virginia. The question for decision is whether this residency
requirement violates the Privileges and
Immunities Clause of the Constitution.
We hold that it does.
ClT25/l/JH 53 14/3/89 Street(2) It is interesting that under the heading II, about a page further on, His Honour says:
Article IV ..... of the CONSTITUTION
provides -
and that is set out -
The provision was designed "to place
the citizens of each State upon the same footing with citizens of other
States, so far as the advantages resulting from citizenship in those
States are concerned" -
And substituting "residency" for "citizenship",
that is applicable here -
The Clause "thus establishes a norm of
comity without specifying the particular
subjects as to which citizens of one
State coming within the jurisdiction of
another are guaranteed equality of
treatment" .....
While the ..... Clause cites the term
"Citizens," for analytic purposes
citizenship and residency are essentially
interchangeable -
and they go on to exaplain that. Then the:: Appellants concede, as they must, that
our decision in PIPER establishes that a
nonresident who takes and passes an
examination prescribed by the State, and
who otherwise is qualified for the practiceof law, has an interest in practicing law
that is protected by the Privileges and
Innnunities Clause. Appellants contend,
however, that the discretionary admission
provided for by rule lA:l is not a privilege protected by the Clause for two reasons. First -
they say -
the bar examination "serves as an
adequate alternative" -
well, that is the case I just took Your Honours
to, that is GOLDFARB -
ClT25/2/JH 54 14/3/89 Street(2) In appellants' view, "(s)o long as any applicant may gain admission to a State's bar, without regard to residence, by
passing the bar examination," ..... the
State cannot be said to have discriminated against nonresidents .....
Second, appellants argue that the right to admission on motion is not within the
purview of the Clause because, without
offense to the CONSTITUTION, the State
could require all bar applicants to pass
an examination. Neither argument is
persuasive.
(Continued on page SSA)
ClT25/3/JH 55 14/3/89
Street(2) (Continued on page SSA) MR BENNETT (continuing):
We cannot accept appellants' first
theory because it is quite inconsistent
with our precedents. We read in PIPER the well-settled principle that "'One of
the privileges which the Clause guarantees
to citizens of State A is that of doingbusiness in State Bon terms of substantial equality with the citizens of that State.'"
And they refer to some cases on that and they
say the law is sufficiently basic for that purpose.
Nothing in our precedents, moreover,
supports the contention that the Privileges
and Immunities Clause does not reach a State's
discrimination against nonresidents when
such discrimination does not result in their
total exclusion from the State.
And refers to some cases on that.
Further, we find appellants' second
theory--that Virginia could constitutionally
require that all applicants to its bar take
and pass an examination--quite irrelevant
to the question whether the Clause is applicable
in the circumstances of this case. A State's abstract authority to require from resident
and nonresident alike that which it has
chosen to demand from the nonresident alone
has never been held to shield the discriminatory
distinction from the reach of the Privileges
and Immunities Clause.
And that, as Your Honours would see, is a very
different approach to that taken in HENRY V
BOEHM.and, in the result, it is set aside.
There are two subsequent cases which I can
just mention very briefly which are in the documents Your Honours have: one is FRAZIER V HEEBE,
55 LW 4877. These cases are both cases which were decided on a totally different basis that
Your Honours are not concerned with and that
was that the court's supervisory jurisdiction
over the admission of attorneys and what they
said, in effect, were that particular discriminatory
rules were so unreasonable the court would set
them aside.
But what is important about these cases
is their relevance to what Mr Justice Deane
put to me earlier, they go through all the arguments
which can be put in support of a discrimination
ClT26/1/ND 55 A 14/3/89 Street(2) and show a priori that those arguments have no validity and it is for that purpose
only that I refer to them.
In FRAZIER V HEEBE, for example, it was
pointed out that the Louisiana discrimination
there operated against the person who lived
100 yards from a court-house across a border
but in favour of a person who lived at the other
side of the State and the State had sought to
justify it on the grounds that an attorney must
be convenient to the court in case a_ matter
was listed for mention at short notice. And,
clearly, that justification did not run.
The clearer case which lists the arguments conveniently is a decision of the Supreme Court
in BARNARD V THORSTENN., a judgment delivered
last week, 6 March 1989, on appeal from the
Virgin Islands, and that is the latest word of the Court on the matter and it is useful because there the Virgin Islands really made
an attempt to put up a strong justification
for its discrimination. It said, "Look, we
are a group of isolated islands, it is vital
that lawyers be here.", and it referred to the
difficulty of getting materials and so on and
the Court, nevertheless, held that none of those
matters were justified.
If Your Honours go to the fifth page of
the Lexis report - I should say that the discovery
of this case is due to the diligence of the
librarians of this Court rather than any diligence
of counsel.
MASON CJ: Yes, we are aware of that, Mr Bennett. MR BENNETT: Your Honours will see at the bottom of the fifth page, ·"Petitioners offer five justifications
for the ..residency requirements"-, and the five
are: First ..... the geographical isolation of the Virgin Islands, together with the irregular airline and telephone service with the
mainland United States makes it difficult for
nonresidents to attend court proceedings.
I do not think my learned friend would submit
that is so in relation to Queensland.
Second ..... finding that the delay caus~d by
trying to accommodate the schedules of non
residents would increase the massive
case load under which the court suffers. Thi rd,
ClT26/2/ND 56 14/3/89 Street(2) the delays in publication and lack of
access to local statutes, regulations and
court opinions will prevent nonresidentattorneys from maintaining an adequate level
of competence in local law. Fourth,
petitioners argued that the Virgin Islands
Bar does not have the resources for adequate supervision of a nationwide bar membership.
Firialiy, that the court has to administer
in a strict and fair manner the rule that
requires active members of the bar to
represent indigent criminal defendants.
(Continuing on page 58)
ClT26/3/ND 57 14/3/89 Street(2)
MR BENNETT (continuing): They then answer each of those five and the answer to the first one is that you can
have an agent. The answer to the second one is the same. The answer to the third one is that if a person is going to practise extensively in the Virgin
Islands he ought to keep himself aware and the
difficulty of obtaining copies of judgments and
materials apply to equally to a resident and a
non-resident. The fourth, the absence of resources, the obvious answer to that was, if there are more
members paying dues, they would have more resources and
tber:efore be able to service them. The final reason, that based on indigent defendants, he said
they could easily impose some sort of requirement
which required non-residents who appeared to assume
their share which, no doubt, would be less. And they say: In sum we hold that the petitions neither
advance a substantial reason for the
exclusion of nonresidents ..... nor deoonstrate
that discrimination against .nonresidents
bears a close or substantial relation to
legitimate objects of the court's rule. When the Privileges and Immunities Clause is made
part of our CONSTITUTION, cormnercial andlegal exchange between the distant States
of the Union was at least as unsophisticated
as that which exists today between the
Virgin Island the mainland United States.
Nevertheless, our Founders, in their wisdom,
thought it important to our genuine effort
to treat nonrestdents on an equal basis with
residents. By extending the Privileges and Immunities Clause to the Virgin Islands,
Congress has made the same decision with
respect to that Territory,
1
And the resid~ncy requirements violate the rules.
So that is the United States' position. In Europe - and
the Eu~opean cases are of less assistance because
there is more extensive requirement of the right to practise one's profession and the right to move
around. But the three cases in Europe are useful because they deal with the question of the requirement
of not having two officers and treat that as a
discrimation and in so far as there is any requirement
of giving up practice elsewhere, and;having one's
principal practice in Queensland, that, we submit,
is relevant.
The first of the European cases is THIEFFREY V
CONSEIL DE L'ORDRE DES AVOCATS A LACOUR DE PARIS
(1978) QB 315. That is on:·the list o.f authorities
rather than in the bundle. Your Honours see that Article 52 is in the first footnote on page 1 of the report:
ClT27/l/VH 58 14/3/89 Street(2) Restrictions on the freedom of establishment
of nationals of a member state in the
territory of another member,shall be
abolished by professive stages ..... Freedom of establishment shall include the right to take
up and pursue activities as self-employed
persons ..... under the conditions laid down
for its own nationals by the law of the country
where such establishment is effected.
Now, that, in effect, is saying what section 117 says
because it is saying that your right to practise
your profession in another State is to be same as
local people. So, in so far as section 117 applies to a right to practise, it is the same overall
concept; it must be treated the same way. And the courts had the same problem with what "treating the same way" means. The only thing I need to refer to
in THIEFFRY is the ruling at the end of the case
and the way it is put there is this - paragraph 27
on page 342:
In these circumstances, the answer to the
question referred to the court should be that,
when a national of one member state desirous
of exercising a professional activity such as
the profession of advocate in another member
state has obtained a diploma in his country
of origin which has been recognised as an equivalent qualification by the competent
authority under the legislation of the country
of establishment and which has thus enabled
him to sit and pass the special qualifying
examiniation for the profession in question,
the act of demanding the national diploma
prescribed by the legislation of the countryof establishment constitutes, even in the
absence of the directives provided for .....
a restriction incompatible with the freedom
of establishment.
(Continued on page 60)
ClT27/2/VH 59 14/3/89 Street(2)
MR BENNETT (continuing): In other words, if one accepts
the foreign degree as sufficient for general
purposes one cannot require an additional
qualification in order to create the discrimination.
So the court goes behind what appears to be
a discrimination not based on residence and
says, "That is a discrimination which we will
strike down." That is made, perhaps, a little
clearer in the case in my volume called
COMMISSION OF THE EURPOEAN cm-fMUNITIES V FRENCH
REPUBLIC. All three of the cases on right to practise involve France. One can describe it as the Queensland of Europe. On the first page of that report in the sec,}nd colurr..n this
appears:
A Member State which authorizes doctors or
dental practitioners established inanother Member State to enrol on the register
..... which is a prerequisite for the practice
of their profession ..... as an employee, as
a principal ..... or as a locum, only on condition
that their enrolment or registration in their
Member State of origin is cancelled is failing to fulfil its obligations under
..... the Treaty.
Again, I do not need to take Your Honours to the reasoning of Sir Gordon Slynn or of the court itself but an indirect fetter is struck down under
a general anti-discrimination provision, and that
is the purpose for which I refer to it. That is
the approach being taken, we would submit, to
general anti-discrimination provisions in the
United States and Europe today. The third case is a little more important. It is ORDRE DES AVOCATS V KLOPP, (1985) QB 711. It is a case where - there was a German advocate who sought to practise in Paris
and barriers were placed in his way. At page 722G
the court sets out the French argument, which was:
According to the French Government the fundamental question which arises in this case
is whether the French national rule whichrequires lawyers to maintain chambers in one place only -
that is one step further than the restriction here.
It is, one would have thought, a less discriminatory
requirement on its face -
constitutes an obstacle to the right of
establishment inasmuch as, according tothat rule, the establishment of chambers
in another raember state is a sufficient
ground for disallowing the establishment
of a second set of chambers in France.
ClT28/l/MB 60 14/3/89 Street(2) That question calls for an answer in the negative since the provisions in question are consistent with the principle
which prohibits discrimination, whilst
satisfying the profession's requirements
asregards internal organisation.
That is developed at page 724 where at the top of the page they say:
It is clear that for the purposes of the
right of establishment the Community must
be treated as a single territory, and
consequently in the absence of any law to
the contrary which has effect throughout theCommunity there is no limit on the number of
member states in which an individual may be
established.
It must be added that although the
second paragraph of article 52 leaves the
member states free to impose national
rules governing the conditions under which
lawyers may practise once established, it
does not permit a member state to impose a
national law which excludes the right of
establishment altogether by allowing an
individual to establish himself in one part
of the Community only if he is preparedto relinquish his establishment in another
part.
So a general prohibition on discrimination is held
to strike down a rule which says you can only
practise in one place. Then, leaving aside the
next paragraph, it said:
(Continued on page 62)
C1T28/2/MB 14/3/89 Street(2) MR BENNETT (continuing):
Finally, the argument to the effect that
the requirement that chambers may be maintainect
in one place only is justified in order to
ensure the proper administration of justice anct
compliance with professional ethics must be
rejected. Admittedly, the need for lawyers tobe permanently established for professional
purposes within the jurisdiction of certain
courts or tribunals ..... justifies national laws
requiring persons whose function is to assist
the administration or justice to maintain a
permanent establishment ..... but it does not
justifiy a requirement to the effect chat
only one permanent establishment be maintained
in the Corrnnunity.
They then reter to some submissions by other people
and rule accordingly. So we submit that the approach taken outside Australia to analogous problems is one
which should give guidance in construing a general
anti-discrimination requirement in the CON~TITUTION and
I turn to section 92
B~NNAN J: What is the meaning of "discrimination" in 117 in
respect of the grounds which might be advanced to
justify the making of a law which has an effect on
one group anct not on another?
MK BENNETT: Your Honour, inevitably some State laws, indeed, most State laws will primarily benefit residents of
that State. If one imposes a law - having daylight
saving, for example - that is going to affect persons
who travel interstate in a different way to the way
it affects local residents but that,clearly, would not
be invalid. But where one can predicate clearly that
the purpose of the law is to impose a discrimination
or disability on interstate residents as opposed to
local residents or where one can see that really the
primary effect of the law is to do that then, wesubmit, it matters not either that in form the law
does not use the word "residents" or that there are a few extreme cases one can conjure up if one uses
one's imagination where a non-resident might not be
affected and a resident might be affected.
One looks, in other words, to substance
rather than form and, we submit, the primary thing
one looks to, as in section ~2, is protectionist or
discriminatory purpose.
BRENNAN J: As at the end of the day I imagine the argument may
be put against you that these provisions which you
seek to challenge are provisions which are reasonably
calculated to facilitate the discipline of aprofession and it is easier to discipline those who
C1T29/l;BR 62 14/3/89 Street(2) practise principally in Queensland than it is to
practise those from wherever. Now, you may say that that that is an insubstantial reason,as the American's
have done. Is that a problem that we have or is it
sufficient that that connection or that purpose may
suffice to support the law albeit it has a
discriminatory effect1
:MR .8ENNET1': No, Your Honour. We would submit, that is a
discriminatory purpose. The mere fact that one has a justification for discriminatory purpose does not matter any more than the law about the influx of criminals, which was referred to by one Justice
under section 117. The purpose may have been to protect people against criminals and may not have been thought of as discriminatory but, of course,
it was. If one has a purpose which is a discriminatory
purpose then one may not apply it, and even if one
genuinely believes that interstate barristers have
lower standards of ethics or are harder to discipline.
Of course, it is not merely insubstantial to
say that it is harder, it is simply not correct that
it is harder. The sanction of striking off the rolls within Queensland can be used just as effectively
against someone who lives in Perth as someone wno lives
in Brisbane. He may have greater expense in defending
himself but the only difference to the State is in tne service fees otherwise it can deal with him in exactly
the same way. And such difficulties as it may have in
that, in service and so on, are at least equal to the
difficulties it would have with someone in Mt Isa.
(Continued on page 64)
ClT29/2/BR 63 14/3/89 Street(2) MR BENNETT (continuing): We would submit to say that there
are real difficulties disciplining interstate
practitioners which do not apply to local practitioners,
is not merely insubstantial, but without any weight
at all.
BRENNAN J:
What I am concerned to discover is not so much the answer to the present problem as the
nature of discrimination in section 117 and, in
particular, whether there is anything inherentin the concept of discrimination in section 117 which requires the Court to examine the basis
on which the differential effect is based. In other words, in the present case, if there is some ligitimate reason for discriminating, is it discrimination? MR BENNETT: Your Honour, there is a difficulty with that
and that is discussed in HENRY V BOEHME. The example that is given in HENRY V BOEHME is assuming
a State poll tax to support a hospital system
within the State and then a law under which
residents of the State are taxed to pay for hospitals
and then the law says, "Any person who is not
subject to pay that tax, ie a non-resident, has
to pay a fee in the hospital". That is the example
which is used to illustrate that point.
The answer there is in the old cliche, that
discrimination can be of two types: it can be
to treat equals unequally or to treat unequals
equally. And if one regards the law as being
a law which says, ''Only those liable to a tax
shall get the benefit without payment", then it
ceases to be a discriminatory law although in
form it may be discriminatory and although its
effect may be.
That is rather like the matter on which this
Court divided in the case following COLE V WHITFIELD,
I have forgotten the name at the moment.
MASON CJ: BATH V ALSTON HOLDINGS. MR BENNETT: Yes,~ BATH,. s case - I am indebted to Your Honour - where the majority of the Court said one looks
just at the specific legislation and says that
is struck down because it is protectionist, and
the minority said one looks at that in conjuction
with another piece of legislation imposing another
duty and says looking at the two together it isnot protectionist.
Now, in a sense, the question Your Honour
asks me involves the resolution of that dispute
in relation to section 117. And it may be that
protectionism, like discrimination, has to be
looked at as a whole.
ClT3O/l/SDL 64 14/3/89 Street(2) On the majority view in that case one would
look merely at the act of discrimination; on the minority view, if one applied an analogous
reasoning, one would look at the whole situation
and say there is no discrimination if in substance
it is merely treating people who are different
differently because of that difference.
It is rather like saying, if I can come back
to my turban example, "No children at this schoo 1
shall wear hats except Sikhs may wear their
turbans." :·One would not regard that as discriminatory;
one would regard it as enabling a general law
to have a fair operation to people who have a
different characteristic.
But whichever way that decision goes does
not affect this case because this case, we submit,
is one where, on any view of it, the only justification
that has ever been suggested or can seriously
be suggested for this legislation is the protection
of the interests of the Queensland Bar againstcompetition from the south. That, we submit,
is the only possible justification; it is the
only one ever put forward in Parliament and the
only one which the cases refer to. And the other ones which one could imagine, described in the
American cases as being insubstantial, we would
submit, do not merit any particular weight in
this case.
(Continued on page 66)
C1T30/2/SDL 65 14/3/89 · Street(2) MR BENNETT (continuing): That may be a decision for another
day if some particular justification is put up
for a particular matter and if my learned friend,
in this case, says there is some justificationfor this rule because of some matter such as
that Your Honour Mr Justice Deane put to me, then
I would have to deal with that. The primary submission is, with the majority in the case,
that one takes the discrimination as such and
that is sufficient. The second submission, if that is rejected, is that one may in certain
circumstances look at something as a whole and
say certain discriminations are justified, but
that would not assist my friend in this case.
Now, in COLE V WHITFIELD this Court laid down
that the primary test for determining whether
there had been a restriction on the freedom of
trade, commerce and intercourse, was whether the
proposed restriction had a protectionist purpose.
Now, we would submit it cannot seriously be
contended in this case that there was no such
purpose. I have taken Your Honours to the various matters under section 117, the argument is identical
substituting "protection" for "discrimination".
Protection is really, as I have said earlier, just the other side of discrimination.
Now, the second matter is this. We submit
intercourse has clearly been impeded. Now, the reasoning which was applied by the supreme court
and which has not, as far as we have discovered,
been discussed in this Court except indirectly
in the two lottery cases, which I will come to,
the reasoning seems to be, "Mr Street is free
to cross the border as often as he likes. The freedom of intercourse that is guaranteed to him
is the freedom to cross the border, therefore,
that has not been impeded. All that has been
done to him is to require him to observe a
requirement of Queensland law, like everyone else in Queensland once he has crossed that border."
(Continued on page 67)
ClT31/l/MB 66 14/3/89 Street(3)
MR BENNETT (continuing): Now, we submit that is not the analysis that should be adopted. First of all, I call in aid the American decision I took Your Honours to earlier:
the indigent transient case, the case of SHAPIRO V
V TI01PSON, where the court said it was a restriction on
freedom of movement, the implied freedom of movement
in the American Constitution which corresponds to
intercourse in ours, to impose a limitation on aperson when he arrives by reference to his having
travelled. Now, one can think of numerous examples.
A regulation which said,"any.: person may cross the
border but if a person is found in Cairns, having
crossed the border within the last 48 hours, he shall
be liable to pay a tax" would clearly be invalid.
That legislation does not in any way impinge on his freedom to cross the border.
It merely
imposes a discriminatory burden on him by reference
to his having crossed the border. One could think of other easier examples: legislation saying that a
person who has crossed the border in the last 24 hours
shall not stay in a hotel until he has been in
Queensland for at least two days; or, shall not
visit a particular type of place of entertainment
until he has been in Queensland for a certain period.
Any· such legislation, we muld submit, inl:>oses a
fetter on intercourse. It does that not by someone
standing at the border and saying, "No, you may not
cross," but by imposing a subsequent fetter by
reference to one as having cressed the border. Now, the effect of this legislation is to say if one's
principal practice is not in Queensland, one may not
practise in Queensland. In other words, the person
who normally has to cross a border from where he
normally practises to practise in Queensland issubject to a fetter.
Now, again, as in the case of section 117, one
could imagine cases where the legislation does not
operate merely because of the crossing of a border.
One could imagine the resident of the Gold Coast who practises principally in northern New South Wales
being subject to a fetter without him having to
cross a border.
(Continued on page 68)
C1T32/l/VH 67 14/3/89 Street(2)
MR BENNETT (continuing): He, when he walks from his home to the Southport court, all within Queensland, is
subject to the fetter. And similarly, the person who lives in Tweed Heads and practises principally
on the Gold Coast is not subject to the fetter
because his principal practice is in Queensland.
DAWSON J:
Are we talking about trade or commerce or intercourse?
MR BENNETT: Intercourse only at the moment, Your Honour. DAWSON J: I see. McHUGH J: So, the discriminatory burden does not have to be of a protectionist nature?
MR BENNETT: I am saying the reverse, Your Honour. I am saying that if the discriminatory burden is of a
protectionist nature and the substantial criterion
by reference to which it is imposed involves the
crossing of a border, there is an interference with
intercourse. A Queensland law which imposes a restriction on people by reference to their having
crossed the border is a restriction on intercourse.
DAWSON J: But is it posed by reference to their having crossed the border, that is why I asked the question
I did?
MR BENNETT: Well, that is the second step I am taking, Your Honou½ and that step is that where in substance
that is the effect of the law, that is sufficient.
Section 92 has never looked to - even under its old
interpretation - contorted examples to see whether a
particular piece of legislation might or might not
infringe. It looks at the substantive effect.
McHUGH J: But, COLE V WHITFIELD said, did it not, that so far as trade and commerce is concerned, it is not
enough that it is discriminatory, it must be a
discriminatory burden of a protectionist nature?
MR BENNETT: Yes. McHUGH J: And intercourse may be different? MR BENNETT: Yes, well may I take Your Honour to what COLE V WHITFIELD said about intercourse? It dealt
with it in two places. Your Honours have the report in 62 ALJR 303. Intercourse is discussed in
two places which seem to suggest that an analogoustest is applied in relation both to trade and
commerce and to intercourse.
ClT33/l/JH 68 14/3/89 Street(2)
MR BENNETT (continuing): The first is at page 308, in the first column at point 7,where
Their Honours say:
Below, we trace the transition
of this clause into s 92 of the
CONSTITUTION. At this stage, we note that 11 intercourse 11 appeared in the words
of the provision as a distinct and independent concept the freedom of
which was guaranteed from the very
beginning. It was not, as has sometimes
afterthought to "trade" and 11 commerce 11 • been saggested, added as some kind of As will be seen, it was the word
phrase 11 trade, commerce and intercourse 11 11 commerce 11 which was last added to the in the section. The relevance of that for present purposes is that it precludes
the approach that the content of the
guarantee of freedom of inter-St::ate intercoursemust be governed by the pre-existing content of a guarantee of freedom of inter-State trade and commerce
into which it was introduced. The notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct and neither the history of the clause nor the ordinary meaning of its words require that the content of the guarantee of freedom of trade and commerce be seen as governing or governed
by the content of the guarantee offreedom of intercourse. Now, what is being said there is that the very
great width that has been given to the guarantee
of intercourse does not necessarily apply to
trade and commerce. Intercourse, if anything, is
a wider guarantee rather than a narrower guarantee.
Then on page 311B, in the first column, the Court says:
The two elements ins 92 which provide
an arguable foundation for giving the
section a wider operation with respect
to trade and commerce than that
foreshadowed by its history are the
reference to intercourse -
1n other words, because "intercourse" is so wide
we should read it widely portrayed in commerce -
and the emphatic words "absolutely free 11 •
A constitutional guarantee of freedom
of inter~State intercourse, if it is to
C1T34/1/HS 69 Street(2) have substantial content, extends to
a guarantee of personal freedom
"to pass to and fro among the States
without burden, hindrance or restriction".
Stopping there, that must include a right to pass without some subsequent burden being imposed on one,
by reference in substance to one's having crossed
the border. Then on page 311 at about point 4, second column, against the words "and commerce"
in the left-hand margin:
| T3 4 | The history of s 92 points to the | |
| elimination of protection as the object | ||
| of s 92 in its application to trade | ||
| ||
| object is achieved is the prohibition | ||
| of measures which burden inter-State | ||
| trade and commerce and which also have | ||
| the effect of conferring protection | ||
| on intra-State and commerce of the same | ||
| kind. |
So their protection is ascribed to trade and
commerce but, at the bottom of the page:
In relation to both fiscal and non-fiscal
measures -
non-fiscal presumably relates substantially to
intercourse - I am sorry, I withdraw that - history and context alike favour the
approach that the freedom guaranteed
to inter-State trade and commerce
under s 92 is freedom from discriminatory
burdens in the protectionist sense -
and in the final formulations on page 317 there
are again references to trade and commerce.
We would submit that it is clearly relevant in
examining an impeding of the wider freedom of intercourse that one perceives in relation to it
a protectionist purpose. Protectionist, of
course, is used in a different sense in relation
to intercourse than in relation to trade and
commerce. For example, if one takes the example I gave a moment ago of a law saying that, "A
non-resident or a person who has just crossed the
border shall not visit a Queensland casino until
he has been in Queensland for 48 hours", such a
law would not interfere with that person's trade
and commerce. It would impede his intercourse
because it imposes a restriction on him by
reference to his intercourse between the States,
and once the purpose is protectionist, in that
sense, I suppose, in the sense of making more
ClT35/l/HS 70 14/3/89 Street(2) room in casinos for Queensland residents
and preventmg the non-commercial competition
of outsiders, we would submit that that type of
protection amounts to an inhibition of intercourse
in much the same way as normal protection
operates in relation to trade and commerce.
| TJ 5 | DAWSON J: | But it seems to be giving "intercourse" |
a wider meaning than "pass" and "repass".
MR BENNETT: Your Honour, it gives "intercourse" that
meaning. What it gives a wider meaning to is the word "burden" or fetter. There is no doubt what "intercourse" means. The question is, "What is a fetter on the intercourse"?
DAWSON J: There is no burden on the actual intercourse. He can come and go as he pleases all day, but when he gets there he cannot do something which he wants to do.
MR BENNETT: Yes and, Your Honour,my submission is that as was said by the court in that DISTRICT OF COLUMBIA case, where one imposes a fetter by
reference to having crossed the border, that 1s
as much a fetter on intercourse as someone
fettering the intercourse itself.
DAWSON J:
Why is it by reference to his having crossed the border, rather than by reference to his being,
for instance, a resident of another State? MR BENNETT:
Because, Your Honour, we submit one looks the substance, not the form.
DAWSON J: Well, I am there. I mean, residents of another State does not have anything to do
with his passing and repassing.
MR BENNETT: No, Your Honour. Well, this case involves
his principal practice being in Queensland. The effect of that is that as a matter of substance a person who has to cross the border to practise
is subject to a fetter which a person who does
not have to cross the border is not subject to.
DAWSON J: It is not a fetter which affects his crossing
the border. I am going over the same ground but I do not immediately see what you are saying.
MR BENNETT: It is a subsequent fetter imposed on people who have crossed the border and not - - -
DAWSON J: It may be discrimination, it may offend section 92, but I fail at the moment to see what
it has to do with passing the border.
Cl T36/l /HS 71 14/3/89 Street(2)
MR BENNETT: Your Honour, I cannot say more than that a subsequent imposition of a fetter by reference
to having cnossed tne border is identical to a
fetter at the border and that, in my submission -
DEANE J: But, Mr Bennett, do you not have to start back a little bit and show us what the fetter is?
I mean, is a New South Wales barrister whowithout the licence before we can really
happens to be in Queensland precluded from
accepting a brief, for example, from New South
appreciate the context in which the licence must
be viewe.d.
| T37 | MR BENNETT: | My submission is one looks at the substantive |
effect of the provision and one sees here a
provision,the substantial effect of which is that
a person who has to cross the border to practise
may not do so, and one does not need to examinethe precise detail of it to see if there are
some people who would be effected by it in a
different way. I see, Your Honours, it is after a quarter to one.
MASON CJ: Yes, the Court will adjourn until 2.15 pm. AT 12.47 PM LUNCHEON ADJOURNMENT
ClT37 /1/HS 72 14/3/89 Street(2)
UPON R.t;SUMING AT 2.1/ PM:
MA~ON CJ: Yes, Mr ~ennett.
MR BENNETT: Your Honour Justice Dawson asked me before lunch a question about the relationship between this
legislation and tne crossing of the border.
Your Honour, that question should be answered in two
separate parts and I seeK to answer it this way. The first submission is that one may impede the freedom
to cross the border by subsequently imposing a sanction
or consequence on a person by reference to his having
crossed it. I gave the example of tne tax. A tax charged as a person crosses the border to achieve a
crossing is, of course, a restriction on freedrom of
intercourse, but so would a tax which is imposed on a
person who crosses the border and has been in
Queensland for 24 hours after crossing it, even it
the sole consequence of not paying it is a civil
liability.
The sanction or the fetter can be imposed upon
the activity after it as effectively as at the time
because in either event there is a fetter on a person
making the decision whether to cross the border, and
I pray in aid in support of tnat proposition
SHAPIKO's case in the United States where they said
that legislation requiring a one year waiting period
before one could claim social security benefits if one
was a new resident was in disguise a restriction on the
right to cross the border.
The seconct submission I have to make is that,as
in the case of my submission in relation to section 117,
the discrimination or selection of the class against
whom the order operates need not be totally precise so
long as it is in substance a fetter on tnose who have
recently crossed the border and if there are some
people who might be liable to pay the impost or
subjected to the disability who have not crossed the border anct some wno are not subjected to it who have,
it may nevertheless be characterized as in substance
a fetter on the crossing of the border if one can say
in 99.9 per cent of cases it operates that way and
clearly that is its purpose.
(Continued on page 74)
ClT38/l/BR 73 14/3/89 Street(2)
MR BENNETT (continuing): As in the case of a discrimination, it does not cease to be a discrimination against
a group because the definition of that group
in the discriminatory act is slightly different
to the way the court regards the group as properlydefined. In the present case where the requirement
is that one practise principally in Queensland,
what that means is that the person on whom the
fetter is imposed is the person who practises
principally somewhere other than Queensland,
say, without limiting the generality of the
example, New South Wales.
If a person practises principally in New South
Wales in the normal course - not every case but in almost every case - such a person, in order to
appear in court in Queensland will need to cross
the border. As I have said I have conceded he might live in Coolangatta, in fact is principally in
New South Wales and not need to cross the border, but in virtually every case he will need to.and, therefore, a fetter imposed for the purpose of preventing him coming into Queensland to practise
and then going back to his home is a fetter imposed
in substance by reference to his need to cross the
border. If part of the purpose is to prevent a
person having a multi-State practice, which means
nothing more than crossing the border in order to
carry out some of his practice, then that is a
restriction on intercourse, or a fetter on
intercourse under section 92 and we have to make
good both those propositions to answer Your Honour's
question.
The only cases in Australia which are of
value on this aspect of section 92 for present
purposes are the two lottery cases, which I will
take Your Honours to in a moment. There are cases,
of course, where the Court has relied on the word
"intercourse" in section 92; the leading case is
GRATWICK V JOHNSON which involved the restriction on travel interstate in war time. But none of those cases discuss either way the present problems.
May I take Your Honours to the two lottery cases
because each has some dicta on it, not all of which
is favourable to my argument. The first is RV CONNARE EX PARTE WAWN, (1939) 61 CLR 596.
This involved a Tasmanian institution known as
Tattersall's lottery and the question of the
sale of lottery tickets in Sydney.
ClT39/l/MB 74 14/3/89 Street(2) MR BENNETT.(continuing): Three of Their Honours in that case
referred to the problem. The first of those is Mr Justice Rich, who dissented in the result.
His Honour, at page 613, said this, at line 7
against the words "of Tattersalls" in the margin:
The selling or offering for sale of a ticket
is merely a step in a transaction which has
the consequences mentioned. While it may
be said that the taking part in a lottery
such as Tattersall's may not amount to trade
or commerce, it cannot be said that it does
not amount to "intercourse" between the States.It may be suggested also with some force
that the attempt of the legislature to prevent
residents in new South Wales from taking
part in lotteries in other States and which
are lawful in such other States is not
unconnected with the object of allowing an
advantage for the State lottery of New South
Wales at the expense of lotteries legally
established in other States.
Stopping there, that is a suggestion, of course, that one does bring in concepts of protection into the word "intercourse".
The Act prevents the sale of tickets obtained
from Tasmania. It does not prevent the
importation of tickets but only their sale
after importation. The prohibition imposed by the Act is absolute. The Act does not
merely control or regulate traffic in the
tickets by, for example, prescribing sales
by persons licensed ..... For those reasons
..... is obnoxious to sec.92.
That, as I say, was a dissenting judgment.
Mr Justice Dixon, as he then was, at page 618,
said this, at line 4:
It follows that the transaction itself could not fall under the direct protection
of sec.92. But a law which forbids or burdens an intra-State transaction may operate to
hinder or prevent some anterior dealing of
an inter-State character and therefore be
bad. Thus an attempt to place a burden upon the first sale of goods after their introduction
into a State might well be obnoxious to sec.92
because of its tendency to prevent or discourage
the importation of s~ch goods from another
State. It therefore does not follow from
the mere fact that the sale by the appellant
to the respondent of the ticket in Tattersalls
was an intra-State transaction that it is
effectually penalized by sec.21 of the LOTTERIES
AND ART UNIONS ACT 1901-1929.
ClT40/l/SDL 75 14/3/89 Street(2) MR BENNETT (continuing): For the contention would still remain that
no State legislation could place a burden
on the introduction into New South Wales
of lottery tickets from other States, things
which the appellant seeks to bring into
the same category as commodities that arethe subjects of trade and commerce.
The second matter ..... appears to me
to answer this contention. It is that,
apart from the State lottery and permitted
charitable raffles, the New South Waleslegislation suppresses uniformly the sale
of all lottery tickets in New South Wales.
In form of expression, the legislation
forbids under a separate heading the sale
of foreign tickets. But the content and not the form of the law must be considered
to discover whether it detracts from the
freedom guaranteed by sec. 92.
And that assists the second of those arguments
I was putting a moment ago in answer to
Mr Justice Dawson's question.
The New South Wales law does not by its
content discriminate against foreign lottery
tickets.
Another reference to that criterion.
It does not forbid them because they come
over the border but because they are lottery
tickets and because all lotteries except
the State lottery are uniformly suppressed -
so ultimately he finds that it is not really
discriminatory and decides it on that basis.
A different view was taken by
Mr Justice McTiernan at page 633 where His Honour
says, at the top of the page:
Sec. 92, however, has a wider field
than trade and commerce. It guarantees
freedom of intercourse among the States
against infringement by a State or even
the Commonwealth. Sec. 21 does not, in
my opinion, in any way impair freedom of
intercourse among the States. As has been explained, the section is a law against
gaming. What it does, in effect, is to
prevent a person in New South Wales from
ClT41/1/ND 76 14/3/89 Street(2) selling to others, in return for their
cash, tickets in a lottery, or, in other
words, distributing for money consideration
things which are part of the paraphernalianecessary or incidental to the game.
Sec. 92 intends that Australia should be
a unity in trade and commerce; it also intends
its unity in social intercourse.
(Continuing on page 78)
ClT41/2/ND 77 14/3/89 Street(2) MR BENNETT (continuing): Those two, we would submit, are not
exhaustive. There are things which may fall between
the two - of social intercourse and trade and
commerce and, if a profession is not trade and
commerce it would be caught, we would submit, by
intercourse:
But it is not true that the social unity of
the Commonwealth is impaired if, for example,
a citizen of Tasmania, who goes to
New South Wales for the purpose of selling
tickets in a Tasmanian lottery, is prevented
by the laws of New South Wales from selling
the tickets. The State of New South Wales could not prevent him from entering the State,
but the limitation or regulation of his
gambling activities in the State is no
infringement of the freedom of intercourse .....
A fortiori, it is not an infringement of
the freedom of intercourse between the States
for the State ...... to_ prohibit one of its own
citizens from selling tickets in a Tasmanian
lottery, whether the tickets are sent from
Tasmania or printed in New South Wales.
If His Honour intended to say by that, that a law
specifically discriminating against interstate lottery
tickets, and saying they could not be sold in
New South Wales, although local tickets could, would
be valid, we would respectfully submit that
His Honour's decision ought not to be followed.
The only other remarks are the remarks of
Mr Justice Taylor in the other lottery case, which
is MANSELL V BECK, 95 CLR 550. In that case,
Mr Justice Taylor put some matters whicbare contrary
to my submissions and, Mr Justice Kitto, dissenting,
puts some matters which are in accordance with my
submissions. Mr Justice Taylor said this at page 598, in the middle of the page, on the left-hand margin:
The fact that there may have been a premise or understanding - outside the field of trade
and commerce and which did not create enforceable
rights and obligations - that the money would be
remitted to Tasmania and a lottery ticket
obtained from that State is, in my view, quite
inadequate to make the receipt of the money
by the defendant part of the defendant's
inter-State intercourse or to enable it tobe said that the prohibition of the former
constituted an impediment to the latter. The plain fact is that sections 20 and 21 having
nothing to say on the subject of intercourse
among the States and they leave the defendant's
constitutional right completely untouched. It
is true that if he is prevented from accepting
ClT42/l/VH 78 14/3/89 Street(2) money in respect of the purchase of
tickets in lotteries conducted in other States
he may not have occasion to exercise his right
as frequently as he, otherwise, might, but it cannot be said that such a circumstance impairs his freedom of intercourse.
Well, we respectfully submit that goes too far.
Mr Justice Kitto, at page 586, in a short passage
in His Honour's dissenting judgment, supported what
I am putting and that is at point 4 where His Honour
says:
To participate in a movement of money from one
person to another in circumstances such as
these may not be to engage in trade or commerce,
but assuredly it is to engage in intercoursebetween the place from which the money starts and the place to which the participants agree
that it shall go; and if the movement between
the participants is only a part of a larger
movement the participation must be in the appellant was nothing less than the first stage of the journey to Tasmania upon which
intercourse between the place of departure and
the destination provided by the larger movement.Brodie embarked when he handed it to the appellant.
Yet it is the appellant's participation in that
movement which is here relied upon as havingconstituted an offence.
In the present case, of course, one knows that when a barrister appears in a State other than in which
he resides or has his principal practice, he charges
a loading. Now, leaving aside for a moment the question of contract and no contract and the
GIANARELLI issues, one,has, a case where a person
is paid to cross a State line. In other words, the
loading is pa~ment to cross a State line. Certainly,in one sense, one can say it is part of the fee for
the brief but it is a fee, if one applies that analysis, paid because one cr©sses the State line and travels
to the other State.
(Continued on page 80)
ClT42/2/VH 79 14/3/89 Street(2)
MR BENNETT (continuing): Normally, of course, one could take judicial notice; a loading is something
more than one's expenses. So, it is a case where one is paid for travelling and one could
hardly have a more direct piece of intercourse,
whether it is trade and commerce or not, than
the payment of a loading to travel to Queensland
and appear in a case. And, it is that which is prevented, of course, by this legislation
because its effect - - -
DEANE J: Mr Bennett, to revert to what I asked you about before lunch, is there any section 92 case where
the section has applied not to strike down theprohibition but to refine the licensing system?
I mean, here you are not taking us to the nature
of the prohibition at all.
MR BENNETT: Your Honour, there are very few cases on intercourse under section 92.
DEANE J: But, if one applied the ordinary run of authority,
if you be right, the attack would ordinarily be on the prohibition of practising without a
licence rather than applying section 92 to, as it
were, redefine the conditions for obtaining the
licence. Now, you may well be right, but it seems to me it is a distinction that you cannot simply
overlook.
MR BENNETT: Well, Your Honour, we would submit, if a State says, take the extreme case first, "It is a condition of your obtaining a licence to practise
that you do not cross a border to achieve that
purpose". We would submit that would be a restriction on intercourse. If a Queensland
statute said that no person who crosses the border
may, within 24 hours, carry on his profession in
Queensland, that would be a fetter on intercourse.
This is going one step behind that; it is saying,
"To obtain a licence to carry on your profession
in QueenP 1 ::.nd, you may not be a person who needs
one step back and then there is the second step to cross the border in order to do it". That is which I referred to earlier of the imposition of the definition. But, there is no reason, we would submit,
in logic, why a denial of a privilege on the basis
of the crossing of a State line should be treated
any differently to t.heimposition of a positive
fetter on a person who crosses a State line. And the nearest one gets to it in the authorities is
the discussion I have taken Your Honours to in the
LOTTERY cases where - - -
ClT43/l/JH 80 14/3/89 Street(Z)
DEANE J: I have no problem with that in relation to
section 117, that is that approach. I am simply pointing out to you it does not accord with the
way licensing schemes have been approached in
past section 92 cases, where the attack has been
directed to the prohibition rather than to thelicensing scheme that qualifies the prohibition.
MR BENNETT:
Your Honour, if one were to say, taking the analogy to trade and commerce, "No person shall
sell in Queensland, apples which have come across
the border without a special foreign vendor's
licence upon which fetters or- limi tat i9ns are imposed"that would clearly contravene, certainly since COLE V WHITFIELD, interstate trade. DEANE J: I follow that is the way you put it, but the traditional way would be to say, your clients
ability to practise in the courts of Queensland is
fettered or removed by some prohibition which is
subject to some form of licensing scheme.
MR BENNETT: Yes.
DEANE J: You may well be right, as I say, I just have
trouble in, as it were, approaching the matter from the other end without some examination of why it is it should be so approached.
(Continued on page 82)
ClT43/l/JH 81 14/3/89 Street(2)
MK BENNETT: Your Honour, in most of the licensing cases there has not been as clear a discrimination or as
clear a protectionist motive as there is here.
DEANE J: That may well be so but, for example, apart trom
what is said in Mr Justice Connelly's judgment, I
personally am quite uninformed as to the nature ofthe applicable prohibition or fetter in this case.
I understand what you say about the undesirable
restriction on the licence tnat provides an escape
route from the fetter.
MR BENNETT: Your Honour, the fetter is, he must have the intention of practising principally in Queensland;
he must swear to that intention; and he must then
practise principally in Queensland for 12 months.
DEANE J: No, the fetter is something which says he cannot
appear in the courts of Queensland. What you are directing us to is a scheme which modifies tnat fetter by providing the way people can be admitted
and escape it.MR BENNETT: Your Honour, the fetter that he may not appear in the courts of Queensland is one which does not
apply to a person for tnis purpose who does not have
to cross the border to practise in Queensland.
McHUGH J: But it does. I do not follow the distinction tor section 92 purposes between the prohibition about -
I am sorry, about the provision that you must practise
principally in Queensland and the good fame and
character requirements. You must comply with both. The prohibition is relaxed.
MR B~NN~TT: Yes. No one suggests that we do not have to comply witn the second requirement, Your Honour.
McHUGH J: But what is the distinction between the two for 92 purposes?
MR BENNETT: One is a fetter which operates in substance by reference to one's crossing the border because in
substance persons who are excluded by a requirement of practising principally in Queensland are those
who cross a border in order to appear in court, as I
say, subject to insignificant exceptions - and that
is the fetter. There is no other authority on it. There are no cases discussing the indirect interference
with intercourse.
In one sense the argument under section 92
and section 117 are not unrelated because it may well
be that if one gives section 117 a wide meaning
there is less reason to give intercourse in section 92
a wide meaning, or to give the effect of section 92
on it a wide meaning. Conversely, if one takes the
ClT44/l;BR 82 14/3/89 Street(2) DAVIE~ AND JONES and HENRY V BOEHM approach, there is
more reason for saying section 92 is the section
designed to perform tne function of keeping intercourse
between the States free and that one should give a wider meaning to it for that reason. ~o in a sense the two arguments are related and the weaker one is, the
stron8er the other should be regarded as being.
Those are my submissions in relation to
intercourse. The remaining matter concerns trade and connnerce. I do not propose to spend a great deal of time on that in view of tne extensive assistance I
appear to be getting from some people who claim to be
my friends on that issue. As I understand it, that
argument will be put by most of tne Solicitors-General
and I propose only to deal with it very briefly for
that reason. It is the other arguments which I have
a need to concentrate upon.
We rely on two aspects as bringing the matter
within trade and connnerce in a slightly different way.
One is the trade and connnerce of the practice of a
barrister, particularly in an area where he charges
a loading in order to travel interstate. That
introduces an element which does not appear in relation
to intrastate practice. It may do if one goes to
a country town, but it introduces an element not
otherwise present wnich exists.
The other aspect is to say that the functions
of the Bar in relation to trade and connnerce
generally are rather like the functions which were
said to be attributable to banks in the BANKING case.
(Continued on page 84)
ClT44/2/HR 83 14/J/81.J Street(2)
MR BENNETT (continuing): In other words, one says, "Part
of trade and commerce involves the resolution
of disputes between those engaged in trade and
commerce. That involves the provision of legal services and the oiling of thefacility involves
barristers travelling from State to State to appear
for their clients where are not required to do so."
In other words, taking a broad view of the application
of trade and cormnerce. There are only three cases I wish to remind Your Honours of very
briefly. The first is GOLDFARB,number one.
This is GOLDFARB V VIRGINIA STATE BAR,
(1975) 421 US at page 773. Your Honours, I think,
have this.
This was a challenge by a client to a fee-
fixing cartel among Virginia lawyers. Your Honours will see at page 779 at about point 8, just
above the reference to PARKER V BROWN:
the Court of Appeals held the State Bar
immune under PARKER V BROWN, and held the
County Bar irmnune because the practice
of law is not "trade or commerce" under the
Sherman Act. There has long been judicial
recognition of a limited exclusion of "learned
professions" from the scope of the antitrust
laws ..... that exclusion is based upon the
special form of regulation imposed on the
States.
They then, at page 783 say this, at point 7:
These argument misconceive the nature of the
funds furnished for the purchasing of
transactions at issue and the place legal
services play in those transactions. As the
homes in Fairfax County comes from without
the State of Virginia," and "significant
amounts of loans on Fairfax County real estate
are guaranteed by the United States Veterans Administration and Department of Housing and Urban Development, both headquartered in the District of Columbia." Thus in this
class action the transactions which create the need
for the particular legal services in question
frequently are interstate transactions -
because that is in the context, as Your Honours
would appreciate, that suburbs of Washington are
in Virginia:
The necessary connection between the
interstate transactions and the restraint
of trade provided by the minimum-fee schedule
is present because, in a practical sense,
ClT45/l/MB 84 14/3/89 Street(2) title examinations are necessary in
real estate transactions ..... In financing
reality purchases lenders require, "as a
condition of making the loan, that the II title to the property involved be examined et cetera. Then, on the next page they say:
Given the substantial volume of commerce involved, and the inseparability of this particular legal service from the interstate aspects of real
estate transactions, we conclude that interstate
commerce has been sufficiently affected.
Then they come to the question of the definition
of trade and commerce on 787 and in line 5 they
say:
In arguing that learned professions are not
"trade or commerce" the County Bar seeks a
total exclusion from antitrust regulation.
Whether state regulation is active or dormant,
real or theoretical, lawyers would be able
to adopt anticompetitive practices with
impunity. We cannot find support for the proposition that Congress intended any such
sweeping exclusion. The nature of an occupation, standing alone, does not provide
sanctuary from the Sherman Act, nor is the public-
service aspect of professional practice controllingin determining whether§ 1 includes professions.
Congress intended to strike as broadly as it could
in§ 1 of the Sherman Act -
et cetera, and they refer to the width of the
language and so on. But the words used, of course, is "trade and commerce". On the next page they say, at the top of the page: It is no disparagement of the practice of
law as a profession to acknowledge that it
has this business aspect and§ 1 of the Sherman Act
"shows a carefully studied attempt to bringwithin the Act every person engaged in business whose activities might restrain or monopolize
commercial intercourse.(Continued on page 86)
C1T45/2/MB 85 14/3/89 Street(2) MR BENNETT (continuing):
In the modern world it cannot be denied
that the activities of lawyers play an
important part in commercial intercourse,
and that anticompetitive activities by
lawyers may exert a restraint on commerce.And we submit, in the same way here, there is a restraint on interstate commerce if those
engaged in it or litigate do not have their
choice of counsel.
BRENNAN J: Does that mean that there ought not to be any
requirement for the admission of barristers
interstate?
MR BENNETT: No, Your Honour. Once there is a fetter one then has to examine whether that fetter
is a fetter on interstate trade and commerce
as such and that involves the weighing process
that this Court has applied in many cases.
BRENNAN J: But the relevant fetter on this argument -
perhaps this harks back to what Justice Deane
had put to you before, the relevant fetter is
the prohibition on persons practising as a
barrister who have not been admitted.
MR BENNETT: No, Your Honour, the relevant fetter is the prohibition on admission to practice of those
who cannot satisfy the condition.
BRENNAN J: I do not follow, why do you put it that way?
MR BENNETT: There is an indirect effect. The fetter is one step removed from the interstate trade
and commerce.
BRENNAN J: But what prevents the barrister acting in the
interstate commercial activity is the fact that
he has not been admitted to practice.
MR BENNETT: We would submit, Your Honour, it is his inability to obtain admission because if he
were able to obtain admission he would be able
to appear in such cases. I concede that one can characterize the fetter in a number of ways -
there are a number of fetters imposed and one
is the fetter to which Your Honour refers but
the relevant fetter for this purpose is that
the fetter on his ability to obtain admission
prevents his clients in interstate trade andcommerce from engaging his services and, in
that sense, that fetter operates to fetter
interstate trade and commerce in an impermissible
manner.
/ND 86 14/3/89
Street(2)
The other case which considers it is -
there is a short reference in the decision of
the House of Lords in NATIONAL ASSOCIATION OFLOCAL GOVERNMENT OFFICERS V BOLTON CORPORATION,
(1943) AC 166. This was one of the cases
involving the question of what was a trade
dispute and it involved employed lawyers and
whether they were involved in a trade dispute
and it was ultimately held that they were.At page 176, Viscount Simon said this:
First, as to the meaning of "trade dispute" in this connexion.
Having regard
to its definition for present purposes,
and to the wide definition of "workman" .....
I think that the phrase can cover a dispute as to conditions of service of officers
of a municipal corporation. Mr Turner strenuously argued that such an
interpretation gives no effect to the
limiting word "trade". The answer is that the definition of "trade dispute" introduces
no such limitation. It does not speak of
disputes or differences connected with the
employment or non-employment of persons
"in trade" or "in trade or industry", but
deliberately omits such limitation, though
the limitation is to be found in the definition
of "workman" in the TRADE DISPUTES ACT,
1906. If there can be a "trade" union to
which the higher grades of officers of a
municipal corporation can belong, it doesnot seem an impossible use of language to
say that a dispute concerning their conditions
of service may be a "trade" dispute.
And the same sort of reasoning appears at page 185
where, at the bottom of the page, Lord Wrightsays:
(Continuing on page 88)
C1T46/2/ND 87 14/3/89 Street(2) MR BENNETT (continuing): I think, therefore, that the appellants are right in their construction of the word
"trade" as used in the order. I also think that they are right in their construction
of the word "workman" which ..... includes
professional, technical and administrative
workers -
and there is a discussion about the interpretation
of it. It is not of enormous value; it concerns
different sort of provisions but it indicates
an approach that the word "trade" ought not
necessarily to be limited in the manner suggested.
I should inform Your Honours that there is
a decision of Mr Justice Lee, which is at the
end of the volume Your Honours have, which has
been followed in Victoria, where it was held that a consumer claims tribunal which had jurisdiction
over disputed matters involving traders did not
apply to solicitors. His Honour at some length
sets out the traditional distinction between a
profession and trade and comes to the conclusion -
he discusses some of the trade and commerce cases in
this court - and comes to the conclusion that
a profession is not a trade. That, as I say,
has been followed in Victoria.
We simply submit that in the modern context,
where the definition of what is a profession is
far harder to draw, there is no reason for reading into the words "trade and commerce" in section 92,
particularly the word "commerce", a limitation
which excludes professions.
I should also remind Your Honours of two
passages in the BANKING case, the first in this
Court, 76 CLR, where Mr Justice Dixon, as he then
was, at page 380, made the proposition to which
is something which greases the wheels of interstate I referred earlier that because, in effect, banking trade and commerce it is something the fettering of which fetters interstate trade and commerce. I will not read the whole passage to Your Honours, it goes from page 380 point 7 to page 383, but there is a general discussion there along the lines of what I have summarized to Your Honours. We would submit it is applicable by analogy to the role which lawyers play, including barristers,
in interstate trade and commerce.In the Privy Council there is a shorter passage,
at page 303 which, again, Your Honours have where,
at the top of the page - it is really one sentence -
Their Lordships say this, in line 2:
ClT47/l/SDL 88 14/3/89 Street(2) The business of banking, consisting of the
creation and transfer of credit, the making
of loans, the purchase and disposal of investments
and other kindred activities, is a part of
the trade, commerce and intercourse of a
modern society -
and we would say the same about the Bar's functions -
and, in so far as it is carried on by means of
inter-State transactions, is within the ambit
of s.92. On this part of the case they respectfully adopt the language and reasoning
of Dixon J. to which they can add nothing.
We would submit that that supports the second
way we put it.
Your Honours, as I say, I do not propose
to say more about trade and commerce; it will
be dealt with very extensively by a number of
other people.
Your Honours, there are a number of short
loose ends I should deal with before I sit down.
The first is a minor defect in the stated case.
One of the allegations that needs to be made before
one attracts section 117, is that one is a subjectof the Queen and we have not formally alleged
in the stated case that Mr Street is a subject
of the Queen. I am told by my learned friend,
Mr Davies, on behalf of the three Queensland
respondents, that no point is taken in that regard.
Perhaps the simplest way of dealing with it is
for it formally to be noted that Mr Street is
a subject of Her Majesty and that that is simplyadmitted.
(Continued on page 90)
ClT45/2/SDL 89 14/3/89 Street(2) MR BENNETT (continuing): It does not appear to me to be necessary
unless Your Honours wish it to be done, to amend the
stated caseformally to allege that, but I will do that if Your Honours regard that as something that
should be done. The second matter is that it has
been agreed between my learned friend, Mr Davies,
on behalf of the three Queensland parties and myself,
that no order for costs will be sought on either side,
whatever the result. The third matter is that in
seeking leave this morning for the Court to argue
that the Court should overrule HENRY V BOEHM and
DAVIES AND JONES, I omitted to refer Your Honours to
some of the remarks of text writers who have criticized those cases. May I simply hand to Your Honours and, without taking Your Honours to them
in detail, passages from Professor Lane's Cormnentary
on the Australian Constitution, and Professor Coper's
book, Encounters with the Australian Constitution,
both of which are critical of the decision in
HENRY V BOEHM and DAVIES AND JONES.
Your Honours, I return finally to the submission
in relation t0 the relationship between sections 92
and 117. We would submit it would be surprising if, in a CONSTITUTION which cootained guarantees of
freedom of intercourse, freedom of trade and cormnerce between the States and freedom from discrimination by
one State against residents of another, without,
before one goes to the details of those sections, it
would be surprising if a State were entitled to
impose a discrimination of the type which is imposed
in this case. This, we would submit, is one of the
very types of matters which Federation is designed to
avoid.
The word "discrimination" in section 117 is an
important word and it must be read, we would submit,
bearing in mind the denotation as opposed to the
connotation of the word, in the light of modern
understanding of discrimination. Similar provisions,
provisions designed to have a similar purpose, in
the United States and in Europe have both in recent
years been construed to prevent this type of discrimination based, without doubt, on protectionist considerations and, in my respectful submission, this Court should apply a similar approach in relation to
both provisions. May it please the Court.
MASON CJ: Thank you, Mr Bennett. Yes, Mr Robertson.
MR ROBERTSON:
May it please the Court, I hand up ten copies of my outline of submissions.
MASON CJ: Yes. MR ROBERTSON: It might be useful, if it please the Court, if I first of all explain how my submissions depart
from those Mr Bennett has made. In relation to section 92,
ClT48/l/VH 90 14/3/89 Street(2) my stated case is silent and I shall make no
submissions on that question. In relation to the
accrued rights argument put by Mr Bennett, I amad idem with the submission I expect will be put
by the State of Queensland; I do not assert any
accrued rights. In reLation to the proposition
Mr Bennett advanced concerning the putative power
of this Court to admit practitioners to practise
in the State of Queensland, I depart from
Mr Bennett and I do not put the submission that, if the Court were to find in my favour on
section 117, it could exercise the power mi.ch reposes in the Supreme Court of Queensland
to admit persons to practise as barristers.
(Continued on page 92)
ClT48/2/VH 91 14/3/89 Street(2)
MR ROBERTSON (continuing): Although my cause is here as a cause removed, and that means the whole of the
cause and not that part of it dealing simply
with the constitutional question, I expect, that
if successful, the Court would remit the remainder
of the cause for determination to the Supreme Court
of Queensland. In relation to relief, I do not
suggest that a finding in my favour on section 117
requires a finding that the relevant rules are
void, or invalid, only that I have an entitlement
under those rules, contrary to the expressions in
those rules which I seek to contradict.
In other words, although if the section 92
argument Mr Bennett has put, and other will put, is
successful, I can take the advantage of that
argument, or that success, because the rules will
be void. If I am successful on the section 117argument, that merely creates a personal right in
my favour.
Your Honours, I should add that I do not
advance Mr Bennett's "colourable evasion" argument.
Otherwise, I adopt Mr Bennett's submissions and
in so far as he dealt with section 117, I do not
wish to trespass on the Court's time by repeating
them.
Can I take the Court directly to HENRY V BOEHM
and the passage which appears in the judgment of
His Honour the Chief Justice at the bottom of
page 487? This is the last sentence on that page
and it reads as follows:
That is to say the Constitutional
prohibition is against the imposition by a
State of any disability or discrimination based on the fact that the person subject to
it is a resident of another State and to
which a resident of the legislating State
is not equally subject.
It is my respectful submission that that passage contains six errors of law. The first error of
law is the misconstruction of the expression in
section 117 "be subject to". Section 117 appears
two pages previously at the connnencement ofHis Honour the Chief Justice's judgment at page 485. It reads:
A subject of the Queen, resident in any
State, shall not be subject in any other
State to any disability or discrimination.
The words, "be subject to" do not mean, in the
context, having posed by law so that the section
would read:
92 14/3/89
ClT49/l/JH
Street(2)
A subject of the Queen -
et cetera -
shall not -
have imposed by law -
in any other State any disability or
discrimination.
What they mean, in the context of the section is,
"be exposed to". In other words, the appropriate
meaning is, the relevant person having the
qualification expressed in section 117 shall not
be exposed to any disability or discrimination.
So one does not have to examine whether a law on
its face expresses a discrimination; the section
requires an examination of the effect of that lawor it may be an administrative practice by the
State concerned, or it may be a rule adopted by a
private association which has monopoly rights in
the State; it may find its source in any person or
organization exercising in practise power, whether
it be power based upon law or power based upon
custom or practise. Section 117 is silent as to the source of the discrimination.
The second error of law made by the
Chief Justice in this passage, which I have just, I
think, covered is his proposition that the
prohibition is against the imposition by a State of
any disability or discrimination. It need not be
by a State. ·
The third error of law is the proposition that
the disability or discrimination is such as is
imposed by law and on the ground of residence in a
State alone.
(Continued on page 94)
ClT49/2/JH 93 14/3/89 Street(2) MK ROBERTSON (continuing): His Honour said the disability or
discrimination must be based:
on the fact tnat the person subject to it
is a resident of another State.
It is my respectful submission that there is no
justification for that interpretation to be found in the
words of section 117. :::iection 117 addresses "residents"
as a qualification of the ..... whose conduct is
addressed by section 117. It does not suggest that
"residents" is the only ground on which the
discrimination or disability can arise. In fact, there
may be numerous grounds for discrimination or disability
which are caught by the section properly construed.
The fourth error of law I identify in this passage
is His Honour's omission effectively of four words
from section 117. The way His Honour reads the section is to omit the words "him if he were" so that the
section would now read that a person shall not be subject
in any other State to any disability or discrimination
which would not be equally applicable to a subject ofthe Queen resident in such other State. This, in my
respectful submission, is a fundamental error and it is
the error from which the problem arising in this case
and other cases flows because the section does not
require the court to have regard to whether the
discrimination applies to existing residents of the
discriminating State and find that if it does apply
to them as much as it applies to the out-of-State
person, therefore the discrimination is equallyapplicable and the section does not operate.
That reasoning, in my respectful submission, is
flawed in this sense: that what the section requires is a·dvertence to the personal position of the resident in the State and it requires the Court to examine the question whether a disability or discrimination arises
if that person, not all other persons, but if that
person were a resident of the other State. So advertence, for example, to what might occur in the
case of other barristers or to the fact that the discrimination or disability appears to apply without regard on its face to the residence of persons out of the State is irrelevant.
Just returning to the sentence I have taken from
the judgment of His Honour the Chief Justice,
His Honour says that the disability or discrimination
nrust be:
based on the fact that the person subject to
it is a resident of another State and to
which a resident of the legislating State
is not equally subject.
Your Honours, in the context of the equal protection
or privileges and immunities analyses which the
ClTS0/1/BR 94 14/3/89 Street(2) Supreme Court of the United States has undertaken and to which Mr Hennett has taken the Court, that court
has had to consider the case where a law discriminated
against residents in the State of legislation as well
as residents outside the State of legislation - and
that decision is UNITED BUILDING & CONSTRUCTION
TRADES V MAYOR and I have copies for the Court. It
is not on our list of authorities. The reference is 465 us L'.08. Your Honours, this is a case where the headnote
describes inaccurately, in my opinion, where the
court considered an affirmative action programme. The
programme required in the city of Camden in New Jersey
that at least 4U per cent of the employees ofcontractors and subcontractors working on city
construction projects be Camden residents.
(Continued on page 96)
ClTS0/1/BR 95 14/3/89 Street(2)
MR ROBERTSON (continuing): One of the questions the court had to consider was whether this offended
the privileges and immunities clause. Now,
ultimately there was not a determination on
that issue and the court sent it back for further
findings of fact, but the relevant passage, on
which I rely, appears at page 217 and this is
the issue in which the majority and minority were
at variance. The first paragraph on that page reads as follows:
Given the Camden ordinance, an out-of-state
citizen who ventures into New Jersey will not
enjoy the same privileges as the New Jersey
citizen residing in Camden. It is true that
New Jersey citizens not residing in Camden
will be affected by the ordinance as well as
out-of-state citizens. And it is true that the disadvantaged New Jersey residents have
no claim under the Privileges and Immunities
Clause.
There is a reference to the SLAUGHTER-HOUSE case
which deals with another issue altogether.
But New Jersey residents at least have a
chance to remedy at the polls any discrimination
against them. Out-of-state citizens haveno similar opportunity, and they must not "be
restricted to the uncertain amenities afforded
by diplomatic processes and official
retailiation."
There is a conclusion that that does not render
the ordinance immune from scrunity under the
privileges and immunities clause. The footnote to that passage, that is, footnote 9, seeks to answer propositions advanced in the dissent in
this case contrary to the passage I have read.
Interestingly the second paragraph of that
footnote reads as follows:
More fundamentally, the dissent's proposed blanket exemption for all classifications that are less than statewide would provide States with a simple means for evading the strictures of the Privileges and Immunities Clause. Suppose, for example, that California wanted to guarantee that all employees of contractors and subcontractors working on construction projects funded in whole or in part by state funds are state residents. Under the dissent's analysis, the California
Legislature need merely divide the State inhalf, providing one resident-hiring preference for northern Californians on all such projects
taking place in norther California, and one
ClT51/l/MB 96 14/3/89 Street(2) for southern Californians on all projects
taking place in southern California. State
residents generally would benefit from the
law at the expense of out-of-state residents; yet, -
the law would be irrnnune from scrutiny under
the Clause simply because it was not phrasedin terms of state citizenship or residency.
Such a formalistic construction would
effectively write the Clause out of the
Constitution.
That is a conclusion to which His Honour Justice Stephen
came in dissent in HENRY V BOEHM's case. Your Honours, returning to the passage in His Honour the Chief Justice'
judgment, His Honour as well - the fifth error
that we identify - - -
BRENNAN J: Before you leave the fourth error, is the
comparison to be made for the purposes of 117,
a comparison between the position of the applicant
in the given case and the position that he wouldhave been in if he were a Queensland resident? MR ROBERTSON: Yes, in the same circumstances. BRENNAN J: Well, what are they?
MR ROBERTSON: All other things being equal. If he were a resident of the legislating State, assuming that it
is a law one is attacking, then - - -
BRENNAN J: Well, the present case, if he were a resident of Queensland and were required to carry on his
practice principally in Queensland?
MR ROBERTSON: Compared with that person being a resident of New South Wales practising principally in
New South, that is the relevant comparison and
the section requires one to answer the question
is the discrimination or disability equally
applicable. (Continued on page 98)
ClTSl/2/MB 97 14/3/89 Street(2)
MR ROBERTSON (continuing): And that gives rise to what do the words "equally applicable" mean
and does it address "precise equality" or
"substantial equality" and, in my respectful
submission, it addresses "precise equality".
And even if it does not address "precise equality"
it addresses "substantial equality".
BRENNAN J: Why does one look at the fact that he is a
resident of New South Wales except to be the
person who attracts the operation of section 117
and then, once section 117 is attracted, one
treats him as a resident of Queensland and sees
then whether he is subject to any disability
which, if he were in truth a resident of
Queensland, he would not have been subject to?
MR ROBERTSON: Your Honour, that would be so if the section
did not require a comparison. What Your Honour is putting to me is that the section requires
a comparison between residence in Queensland
generally and the person seeking to avail himself
of section 117 were he a resident of Queensland.
BRENNAN J: No, the proposition I am putting to you is
that whatever disability you may be subject
to , a r e .You
you would not be subject if you were in truth
a resident of Queensland?s u b j e c t to any d i s ab i 1 i t y to w h i ch
MR ROBERTSON: Assuming me to be a person defined? BRENNAN J: Assuming you to come within 117 because you are a
subject of the Queen resident in New South Wales,
is not the relevant inquiry then, "Are you subject
to any disability to which you would not be
subject if you were a resident of Queensland?"
MR ROBERTSON: Yes, I agree with what Your Honour is putting.
I apologize, I misunderstood Your Honour.
BRENNAN J: I probably did not put it clearly but I just
wonder where that leads you in the context of the present discussion?
MR ROBERTSON: It leads me to the matters stated in
BRENNAN J: Do not let me take you out of your course.
MR ROBERTSON: - - - paragraph 4 of my submissions and it is a note - an appropriate occasion to identify
the disability or discrimination because it
is the greater financial burden and the personal
dislocation that would be suffered by me if
I were a resident of Queensland and having tocomply with the requirement to practise principally
/ND 98 14/3/89
Street(2)
in Queensland because that would, as is
admitted in the stated case, require me to giveup my principal place of practice in New South
Wales. Whether it requires me to disestablish in the sense of move my residence from New South
Wales to Queensland is really beside the point.
It is a proposition which, in my respectful
submission, is obvious that there would be an
additional financial burden imposed on me,
assuming I did not move my residenc~ in order
to comply with the Queensland requirement to
practise principally in Queensland, because
it would mean a financial burden in the sense
of travel or, possibly, disestabishment -
certainly disestablishment of practice because
that is admitted in the stated case and it would
also be a personal burden on me.
DEANE J: Would it not be a lot simpler to simply say
it requires you to practise principally away
from the State in which you reside?MR ROBERTSON: Yes, that is also - it would. That is
another burden.
DEANE J: Which no Queenslander is subjected to.
MR ROBERTSON: That is not quite so, Your Honour. Some Queenslanders are subjected to it.
DEANE J: Which no one resident in Queensland is subjected to by this requirement. (Continuing on page 100)
ClT52/2/ND 99 14/3/89 Street (2) MR ROBERTSON: In a practical sense, that is so. When I said in opening that I did not adopt Mr Bennett's
submissions on extraneous purpose, I did not mean
by that to suggest that I did not adopt his
submissions on practical effect. It is certainly
part of my approach that the Court cannot merely
look at criteria of operation of
legislation and say that one has to identify the
discriminatory burden by that exegesis.
Your Honours, there is, in my respectful
submission, a classical passage in the judgment
of His Honour Justice Stephen on this question
which occurs at page 502 and it is the paragraph
betweenpoint 4 and point 6 on page 502 of His Honour's
judgment. I will not read it to the Court but I adopt it. Your Honours, just returning to His Honour the Chief Justice's sentence, at the bottom of
page 487, the fifth difficulty, I respectfully submit,
with the sentence, is its treatment of or its failure
to - its omission of the words "equally applicable."His Honour appears to find a contravention of
the section from an examination of the circumstances
and an identification in those circumstances of a
disability or discrimination based on the fact that
the person subject to it is a resident of another
State and that is the shorthand method which His Honour
has adopted and the majority adopts in HENRY V BOEHM.
Now, it is my respectful submission that Their Honours,
at various points, find the equal applicability
satisfied if all persons are the subjectsof the law
in question even though the law operates differently
upon particular persons who have individual
characteristics. This is, perhaps, the high point
of the discrimination arguments that have been
agitated in courts in western nations in the last
10 years concerning what is a discriminatory law.
The proposition is that a law may be discriminatory in two ways. It may, on its face, demonstrate
a discrimination by selecting from a class of persons some characteristic which shows that it is addressed
to that class and to none others and therefore
excludes persons or other subjects of laws from its
operation and so discriminates in that sense. Or, it
may be a law which, although on its face is neutral,
it does not affect the discrimination but, in its
operation has discriminatory effects, the kind of law to which Mr Bennett referred dealing
with Sikl:1s .
ClT53/l/VH 100 14/3/89 Street(2)
MR ROBERTSON (continuing): The origin of the treatment of this proposition in the United States is in the
Supreme Court decision of GRIGGS V DUKE POWER CO - if I could hand up 10 copies of that? That was
not a constitutional case, it was a case taken
under the CIVIL RIGHTS ACT in the United States.
Your Honours will find it adopts the discriminatory
consequences proposition. I do not want to read it because there is a statement in
His Honour Justice Stephen's judgment again, which
in my respectful submission, puts the proposition
better than Your Honours will find it put in that
judgment. If Your Honours will just excuse me
a moment?
Yes, at page 502 at about point 8 on that
page, the last paragraph:
Moreover, I regard it as incorrect to say of a disadvantage that because it is the
consequence of a requirement of universal
application that disadvantage is equally applicable to all; if the discriminating
factor relates to the personal attributes
of individuals some only of whom possess
those attributes then, while the
requirement may be said to apply equally
to all, the disadvantage will apply
unequally for it will apply only to those
who do not possess those attributes.
His Honour then refers to LEE FAY'S case. And, on the following page: Likewise in the case of an attribute which,
unlike racial origin, is capable of
alteration by voluntary act of the
individual, albeit at the expense ofconscience, property or convenience. For
example faith, like residence, may be
subject to change, a new faith being
adopted by voluntary act. constitutional provision that a person Suppose a
professing any faith should not be
subject to any disadvantage which would
not be equally applicable to him if he were
of any other faith; suppose also a State
law requiring the profession of a
particular religion as a qualification for office. The requirement of that law would
be uniform in its application to allaspirants to office but the disadvantage
which it imposed upon those not of the
favoured religion would be a disadvantage
the nature of which might be characterized
in terms of the violence done to
ClT54/2/JH 101 14/3/89 Street(2) conscience in having to abandon an
existing religion and to adopt another
in order to qualify for office.
Likewise whens. 117 is invoked it
cannot, I think, be any answer that a
challenged statutory requirement as to
residence applies equally to all, to
those already resident within the
legislating State as well as to those
resident in other States; the
disadvantage involved in compliance with
the requirement of residence may
nevertheless apply unequally.
The final difficulty in the passage in
His Honour the Chief Justice's judgment which is
shared by the other judges in the majority is
His Honour's treatment of "resident" in
section 117. In my respectful submission,
section 117 quite deliberately uses the expression,
"resident in" to adjectively define the person
who may take the benefit of the section.Other sections of the CONSTITUTION use the
expression "residents of" and the distinction is
deliberate for this reason. In other sections of
the CONSTITUTION where the notion of "residence"
is involved, it is used in the sense of permanent
resident or perhaps it is used to distinguish
residents in one State from residents in the other
and diversity jurisdiction is a good example.
In section 117, the reason "resident in" was used as distinct from "resident of" was so as to reduce the difficulty of persons coming within the protection
of the section so that a more transient relationship
between the State and the person could suffice to
satisfy the definition of a person who may take itsprotection.
(Continued on page 104)
ClT54/3/JH 102/103 14/3/89 Street(2)
MR ROBERTSON (continuing): The notion of "residence" generally in the law refers to a permanent place of abode.
In this section, in my respectful submission, it refers to a more transient relationship to
the State such that a person may be resident
in a State if that person has a physical orgeographical connection with the State even though
that person may not have an intention to continue
in the State or continue to reside or to havea place or abode in the State and, where the person
is seeking to conduct a business and seeks the
protection of section 117, the notion of "resident"
is sufficiently flexible in that section to refer
to a place where that business is carried on.
If one accepts that proposition, and accepts
as well that a person can be a resident in two
places, perhaps, at the one time; a place where
someone has a permanent abode and another place
where one carries on a business and, in these
proceedings, of course, we have a requirement
that one carry on a business - assuming it to
be commerce - or practice a profession principally
in a particular geographical area, then that
requirement perforce involves a person, in orderto comply with it, becoming resident in that place.
There is a very clear dividing line between
the majority and the minority in HENRY V BOEHM
on the meaning of "resident" but, before I take
the Court to that dividing line, I would just
refer to a decision of Sir Owen Dixon, sitting
alone, in GREGORY V DEPUTY FEDERAL COMMISSIONER
OF TAXATION, 57 CLR 774, it is not on the list
of authorities; I understand Your Honours have access to the Commonwealth Law Reports. GREGORY's case concerned the liability to tax of a person
who lived at Broome in Western Australia but carried
on business in the Northern Territory. He also had part of his business, but a diminishing part
of his business, it appeared, in Western Australia
and the question was, was he liable or could he
claim an exemption on the basis that the INCOME TAX ASESSMENT ACT did not apply to any income derived from primary production in the Northern Territory by a resident of that territory. Your Honours, there are literally thousands perhaps the bottom line of them all is that it
of cases on the meaning of "resident" and just depends on the circumstances in which the
word is used in the provision. But the circumstances here, of course, is a CONSTITUTION and not a taxing
Act. But, none the less, His Honour examines the concept of "resident" in these circumstances
and finds that it was possible for this person
to be residing in both Darwin and Broome and,residing in Darwin because he was carrying on a business in Darwin and, for that reason and
ClTSS/1/SDL 104 14/3/89 Street(2) because it became his principal place of business,
he is a resident of Darwin, or of the Northern
Territory, for the purposes of the case.
If one accepts the proposition that "resident"
is a flexible concept, then it can apply as much
to a person who carries on business in a place,
even though there may not be an intention to have
a permanent abode there.
Just going to the views of the majority and
minority in HENRY V BOEHM, His Honour the Chief
Justice of course, in the passage I have taken
Your Honours to at page 487, refers to "a resident
of" twice and, of course, that is not an accurate
statement of section 117. His Honour Justice Gibbs is more careful and uses "resident in" throughout
hip judgment. But Their Honours came to a similar view. At point 6 on page 487, the Chief Justice said: ·
(Continued on page 106)
C1T55/2/SDL 105 14/3/89 Street(2) MR ROBERTSON (continuing):
The concept of a resident of a State involves
in my opinion some degree of permanence of
residence and of identity by reason thereof
with a State. Ordinarily, the place where
a person has his home, without having acquired
a domicile in that place by origin or by
choice, will be the place where for the
purposes of s. 117 that person will be
resident. There may be lesser degrees of
permanence of residence or of identity through
residence which will satisfy the concept of
residence ins. 117.Justice Menzies at page 491 at point 2 on that page said:
Furthermore, the conception of "residing" for
the purposes of s. 117 is not one that excludes
temporary absence from the State of residence. A person does not cease to be resident in one
State by crossing the border into another resident of a State could, without losing
that residence, live in another State for a
time. A person resides in a State where his home is for the time being, notwithstanding
that he may from time to time be away from
home.
At page 493 at page 4 His Honour says:
In short, a person could reside continuously
in South Australia for the purposes
of the rules while still remaining a
resident of Victoria. It is this continuous
residence that the rules require whether
the person applying by virtue of a previous
admission is resident in South Australia
or in another State. It seems His Honour is there equatiing _ residence
with an intention to reside permanently in a
particular place which is found to be part and
parcel of the concept of residence in some ofthe taxing laws and some of the matrimonial
laws. Turning to Justice Gibb's treatment
at page 496 at point 9 His Honour in this
passage says:
The word"resident" can be used in a variety
of senses. The word appears in other sections of the CONSTITUTION -
he cites those -
ClT56/l/MB 106 14/3/89 Street(2) and although it is there used as a noun,
whereas ins. 117 it is used as an
adjective, it seems to me that in the latter
section as well as in the earlier it connotes
some idea of permanence.
He refers to HOWE's case and Quick and Garran
in their commentary and His Honour concludes
that it has a context of permanence. Now, before taking Your Honours to Justice Stephen's dissent
it is my submission that His Honour Justice Gibbs
cites HOWE's case for a proposition for which it
is not an authority. I do not want to take the Court to HOWE's case, I will just give the reference to the passages in some of the judgments of
Justice Higgins at pages 332 and 335;
Justice Isaacs at pages 307 to 308. Now, His Honour Justice Stephen at pages 503 to 506
deals very comprehensively with the issue - and
I do not wish to read those pages, but perhaps
if I could just take the Court to a short passage.
His Honour says that the notion of residence is
a flexible one and at page 505 point 8
His Honour says:
Section 117 is concerned with negativing a right on the part of a State to impose disadvantages
upon individuals and it too employs the
phrase "resident in" as distinct from
"resident of" and is expressed in the
adjectival form rather than using the
noun substantive, a form said by the of bearing a more extended meaning than is
the noun substative.
It follows, I think, that not only will
the established meaning of "residents" in
s.75(iv) not necessarily bear upon the meaningof "resident" in s.117 but that there are
reasons for giving to the adjective "resident" ins. 117 a wider meaning than the noun "residents" in s.75(iv) tied, as the latter
is, to the concept of a permanent home. The distinction already referred to between "resident of" and "resident in'' does, I think, involve,
in the case of the latter, less sense ofidentification as a matter of status with a particular State and a greater concern with the whereabouts of a person's present abode. Again, the phrases employed ins. 117 are
unqualified ones, "resident in any State" and
"resident in such other State"; there seems to
me to be no reason for implying into the sectionsome qualifying word, such as "permanently" so as thereby to limit meaning.
ClT56/2/MB 107 14/3/89 Street(2)
MR ROBERTSON (continuing): His Honour then cites a passage inJustice Higgins' judgment in HOWE's case and
His Honour then expresses a view as to the purpose
of section 117 giving equal standing to persons who
are residents of the States and he cites JAMES V
THE COMMONWEALTH. And then towards the bottom of the pages he says that:
The immunity conferred by s .117 is., in any
event, quite a restricted one, limited to
discrimination upon the sole ground ofresidence
and I, of course, depart from that somewhat but
that does not much matter -
further to confine it to only those
discriminations which would be equallyapplicable were the subject of discrimination
a person having his permanent home in the
legislating State, so that very lengthy
periods of actual residence in that State
might be validly imposed upon subjects who
retained their permanent residence in other
States, so detracts from the effectiveness
of this grant of immunity as to raise, at least
in my mind, a very real doubt whether this can
be the true meaning of the section. The various considerations to which I have already
adverted satisfy me that it is not and that
the wide meaning of "resident" adopted byGriffith CJ as long ago as 1904 should be adhered to as giving to that word in s.117
its true meaning and effect in the context
in which it occurs.
Further down the page:
It will, of course, only be some
circumstance properly capable of description
as residence that will satisfy the requirements
of the section, a mere transitory presence will
not suffice. In the present case, it is both unnecessary and undesirable to seek to define in advance the precise breadth of meaning of "resident" in s.117; it suffices to conclude, as I do, that the residence provisions of the
Admission Rules do involve the imposition of
a disadvantage by reference to the circumstanceof being resident in a State, within the meaning of s.117.
And the final passage, Your Honours, I want to read
is at the bottom of the page:
I also conclude that these two rules do
subject the plaintiff, resident in Victoria,
to a disability or discrimination which would
ClT57/l/BR 108 14/3/89 Street(2) not be equally applicable to him if he were
resident, in the sense indicated above, in
South Australia. They require him to leave his established home in Victoria and to live
continuously in South Australia for considerable
periods of time. Were he resident, in the sense indicated above, in South Australia the
requirement of the rules would bear quite
differently and less onerously upon him; their
precise effect in such a hypothetical situation
cannot be predicated but at least it is clear
that were he resident in South Australia the
disability involved in lengthy residence away
from Victoria would either be wholly absent or
be substantially mitigated.
And it is my respectful submission that that passage
applies equally to my circumstances. May it please the Court, I respectfully submit that leave should
be granted to reargue HENRY V BOEHM for the reasons
Mr Bennett has advanced but as well because section 117
is a guarantee of a personal right. It is not a section which provides powers between legislating
entities within a federation; it is a section which
seeks to vindicate the rights that I identify in
paragraph 2 of my written submissions, a common
citizenship freedom of movement and establishment.
Those rights in relation to my position and
Mr Street's position, of course, involve the application
of it to particular circumstances but those circumstances
generate advertence to those policy considerations.
There is a further matter to which Mr Bennett
did not advert and that is the disadvantage occasioned by the absence of persons who might be drawn upon from a pool of persons capable of delivering services to
people perhaps in the unfortunate position to need
them in the law. Consumers of legal services have
just as much the right to expect that the pool from
which those services can be drawn is not exhausted
by reference to geographical location of those who
may form part of the pool.
Regretfully there have been occasions in
Queensland where persons have not been able to obtain
legal representation because of the smallness of the
Bar. There is one occasion where that is reported in
the judgment of the Court of Criminal Appeal in
Queensland in RE MAHER V REG - and I hand up copies
of that judgment. It is a recent case in 1986.
(Continued on page 110)
ClT.'.)7/'2./BR 109 14/3/89 Street(2) TOOHEY J: Mr Robertson, in seeking to identify the
discrimination which you say exists in your
case, is there anything in the notion that any
discrimination results not, as it were, from
the fact that you are a non-resident that you
possess a non-local qualification? By that I mean if you were a resident of Queensland,
possessing the qualifications which you do,
would you not equally be subject to the
requirement of the rules that you give the
undertaking'Which the rules require?
Can I just take it one step further,
conversely, if you had, by chance, acquired
a Queensland qualification, then gone elsewhere,
and sought to return to Queensland, then your -
perhaps there is no great profit in pursuing
that particular example, but I will restrict
myself to the first question of the, as it were,
out-of-town qualification versus local
qualification, rather than out-of-town residence
versus local residence.
MR ROBERTSON: Your Honour, there is no doubt that that is a superadded burden but I would answer that
by the same - I would take the same approach
to that as Justice Stephen did in looking at
DAVIES AND JONES' case. The fact that you add domicile to residence does not none the less attract
from the discrimination which residence or lack
of it occasions. I take Your Honour's point and I think I have sought to address it in the
final paragraph of my written submissions.
TOOHEY J: No, I do not want to take you to that peremptorily.
MR ROBERTSON: The requirement to practise principally in Queensland is only imposed on persons who
are admitted to practice elsewhere than in
Queensland. The question of qualifications are irrelevant or the place of qualification
is irrelevant. It really addresses out-of-town admissions to practice rather than out-of-town
qualifications because if you examine rule 15(d),
(3), (4) and (5), which are the provisions
applying to conditional admission to practice,
Your Honour will see that although they are
expressed as qualifications they are, in fact,
admissions to practice otherwise than inQueensland.
It may be that persons who are residents
of Queensland can be admitted to practice having
out-of-State qualifications. We do not know because there is no evidence of the equivalent
degree as expressed in rule 15(d)(7).
ClT58/l/ND 110 14/3/89 Street(2)
TOOHEY J: But if a person possessing your qualifications took up residence in Queensland, in order to
become admitted on the strength of those
qualifications, he would still be required to
give the undertaking required by subrule (6),
would he not? He would still be required to state that it was his intention to practise
principally in the State of Queensland.
(Continuing on page 112)
ClT58/2/ND 1 1 1 ROBERTSON 14/3/89 Street(2)
TOOHEY J: So, in that sense, it might be said that whether a resident or non-resident, the same undertaking must be given. MR ROBERTSON: Well, Your Honour, two answers to that which I
make. The first answer is that if you examine the structure of rule 15,in practical reality the persons
who have to give that undertaking will be those who
are not residents or who have had previous establishments
in the sense of having practised principally in other
places than Queensland. They are relying upon out-of-State admissions. They are not relying upon anything that affixes them with residence in
Queensland. So, looking at the rules and examining their practical effect, that is a clear discrimination
and one asks the question, I suppose, puts the obverse
of the proposition Your Honour puts to me: is it not a discrimination because - and can one not see a
discrimination visible on the face of rule 15 by its failure to apply the conditional admission requirement to persons who had qualified in accordance with the
in-State qualifications described in that section?
The second answer to Your Honour's question is that Your Honour would be correct if it were not for
the fact that the requirement to practise principally
in Queensland requires as its corollary that one
forgoes practising principally elsewhere and that
is not a burden placed on persons who would be
residents of Queensland.
TOOHEY J: Yes, I can see that in practical terms. I suppose, theoretically_, it can be said that the same burden
applies to the practitioner who relies upon
extra-Queensland qualifications, whether that person
intends to become a resident or has become a resident
or otherwise, of Queensland, the same restriction
is imposed, at least during, I suppose, the first
year of admission.
(Continued on page 113)
ClT59/l/VH 112 14/3/89 Street(2)
MR ROBERTSON: In my submission it is an enduring discrimination because one cannot express honestly an intention
to practise principally in a place which has no
durational requirement in it or no durational
restriction upon it, honestly, without intending
to practise principally in Queensland for the
remainder of your professional life.
TOOHEY J: Yes, I see that. MR ROBERTSON: Of course, the third answer to the proposition Your Honour puts to me is that one does not compare
my position with some hypothetical person; but
one has to compare my position in actuality if
I were a resident of Queensland or if I were a
resident in Queensland and comparing my position
as a resident in New South Wales with my hypothetical
position as a resident in Queensland, the burden
placed upon me; the disability or discrimination which identifies that financial, personal burden
to which I had earlier referred in my submissions.
That flows from the concept of a person,
subject to section 117, being exposed to
discrimination or disability rather than having
it imposed upon one by a law directly in the sense
in which the Chief Justice speaks in the passage
I have taken the Court to.
Your Honours, all I wanted to say about MAHER's
case was that Mr Maher went unrepresented, I think,
for 38 days in a criminal proceeding and the
judgment at pages 319 to 321 record the endeavoursby his solicitors to engage counsel for him and
it appears, at the top of page 321, that his then
solicitor, Mr Moffatt:
expressed the opinion that it would be
impossible to prepare the matter for trial
under a period of six to eight weeks and
he referred to having contacted sixty-eight
junior counsel. (Continued on page 114)
ClT60/l/SDL 113 14/3/89 Street(2)
MR ROBERTSON (continuing): Now, I do not know whether this is a case of Mr Maher being an unpopular
defendent, but in my submission, it is clearly acase of a person suffering the prejudice of
serious criminal charges being unable to obtain
adequate legal representation in those
circumstances and that, of course - - -
BRENNAN J: I do not understand your reference to him as "being an unpopular defendent".
MR ROBERTSON: I said I do not whether it was a case of an informal boycott, Your Honour. It just seems
strange - - -
BRENNAN J: A strange allegation to make against an honourable profession.
MR ROBERTSON: Well, Your Honour, it is something that has apparently been identified in the United States.
BRENNAN J: I am unaware that it has ever been identified in Queensland.
MR ROBERTSON: Yes, well, Your Honour, I am saying I do not know whether that is - I am not making any
allegation in relation to MAHER'S case on that
score. I do not know the reason for him being
unable, in those circumstances, to attract adequate
legal representation but the matters of fact are
recorded there. What inferences one draws from
that is another question but that it is a consequence
of closing a bar in any circumstances. that there
may. be cases, particularly in this case, a case of
quite substantial duration, where persons are not availableat short notice to appear.
BRENNAN J: That is a different problem. MR ROBERTSON: Yes, well that is the basis on which I put it. Your Honours, I understand that some submissions
will be put in relation to section 92 by my
opponents on section 117 which advance the proposition that the requirements and the rules are
necessary in the interests of discipline and controlof the profession in Queensland and some reference
has already been made by Mr Bennett to that possible
justification. Your Honour Justice Brennan, in
reference, I think, to the United States cases
which do not apply a rule of automatic invalidity
wherever they find some discrimination in the
privilege and immunities area, asked Mr Bennett
whether a discrimination may none the less not be
a discrimination in the relevant sense because it
has some justifiable object.
ClT61/l/JH 114 14/3/89 Street(2) MR ROBERTSON (continuing): It would be my submission that it
is unnecessary for this Court to consider that
question in the context of section 117 although
I understand that some of my friends will raise it
in the context of section 92. But if it is considered in the context of section 117 and it is said that
even if the Court finds a discrimination or disability,
this is justified because it is necessary for the
purposes of controlling or regulating the legal
profession in Queensland, one then has to consider this question: if the Supreme Court of Queenslandis unable to discipline or control practitioners
in a relevant sense because some of them have places
of work outside the State, or residences outsidethe State, then what is the positioninrelation
to the Supreme Courts of Victoria and New South Wales,
which have always offered reciprocity to practitioners
throughout Australia and before whom practitionersfrom other States appear regularly? Is it suggested
that the Supreme Courts of New South Wales and
Victoria have had difficulty in regulating the
conduct or disciplining aberrant legal practitioners?If it please the Court, those are my submissions.
DEANE J: Is not the real thing here whether this can properly be seen as a qualification and, if it is, what do you say about it? I mean, what, for example, if a Queensland law said "No Queensland university will admit students to a degree unless they have studied and personally attended lectures for three years
or whatever greater period over which the particular
course might extend?" How would that differ from this? MR ROBERTSON: It may be that the qualification or condition
imposed on the acquisition of a degree is contrary
to section 117.
DEANE J: In other words, a university of a State cannot take the
approach that personal attendance is necessary for
particular types of qualification.
(Continued on page 116)
ClT62/l/VH 115 14/3/89 Street(2) MR ROBERTSON: Well, I think, Your Honour, the question is
first of all whether there is a discrimination
or disability; perhaps I should approach it in a
different way. Is there a discrimination or
disability in those circumstances? The court could
very well find that a requirement for personal
attendance at lectures is so much part of the
subject-matter or so bound up in the service which
is being delivered that in no sense could it be
described as discrimination or disability to
require someone to attend in those circumstances.That may be the appropriate approach. I do not suggest that section 117 is without difficulty,
on anyone's construction. No single construction, perhaps, has resolved all its potential problems
but it comes down, I think, to His Honour
Justice Brennan's proposition, "How do you,construe
the words 'discrimination' and 'disability,.?"
Even though there may be a difference between
a person out of State and that person if that
person were in State, that difference may not be
a detraction from the right that person seeks,
or entitlement that person seeks to exercise in
the legislating State. That would be my answer
to Your Honour's question.
So one might return to the position in which
the Supreme Court of the United States has found
itself and, that is., one has to examine the merits
of the conduct sought to be impugned by the litigant
in section 117 cases, or at least an argument asto merits is open, going to whether, in truth,
it is a discrimination or disability. May it
please the Court, those are my submissions.
MASON CJ: Thank you, Mr Robertson. Mr Solicitor for the Commonwealth.
MR GRIFFITH: If the Court pleases, may I hand up our contentions?
MASON CJ: Thank you.
(Continued on page 117)
ClT63/l/MB 116 14/3/89 Street(2)
MR GRIFFITH: Perhaps_wbilst they are being handed to the Court, could I indicate that the
Attorney-General for the Commonwealth's positionis that there is a clear answer in respect of "trade and commerce" under section 92 in this
matter. We will submit there are difficulties in respect of section 117 and as we have
indicated we would argue that HENRY V BOEHM
should not be reopened so our primary submissions
are based on section 92 and it is intended that
my learned friend,Mr Ros~ will deal tomorrow
with the section 117 aspects.
Could I hand to the Court copies of the
legislation we refer to in paragraph 1 of our
contentions. As a practitioner not admitted
in the Supreme Court of Queensland, I cannot
speak with any authority as to these propositions
but they represent our understanding as to the
relevant rights of practice which would seem
to accrue in response to Your Honour Justice Deane's
inquiry this morning.
It does seem to us that the fact of admission
grants relevant rights of appearance in the
supreme court district court and we refer to
the particular sections which I do not think
I need take the Court to. There are provisions
enabling audience without admission by special
leave of the judge, for example, section 38Aof the SUPREME COURT ACT of 1867.
(Continuing on page 118)
ClT64/l/ND 117 14/3/89 Street(2)
MR GRIFFITH (continuing): We would not submit that such a
provision for a person who has not been admitted
is of any particular consequence, particularly
in discussion by reference to trade and commerce
because section 38A then goes on to provide:
A person who is not a barrister or solicitor
of the Supreme Court shall not be entitled to claim or recover or receive directly or indirectly a sum of money or other remuneration
for appearing or acting on behalf of another
person in the Supreme Court.
So it seems a concept of a next friend and that
provision, of course, establishes the effect of
admission being the capacity, we would submit,
to carry on the business of a barrister which,as we submit, is within the aspect of carrying
on business in trade and commerce for the purposes
of section 92.
It would seem also, from section 38A, that
there is an inhibition on accepting fee for drawing
conveyances which, perhaps, is by the by, or:
any other deed or instrument in writing
relating to any real estate or any proceedings
in law or equity.
So it would seem to cover a prohibition on relevant
paperwork which might be the ordinary aspects
of carrying on practice as barrister of a supreme
court.
We do refer to here, and we will pick it
up later in our submissions, to two statutory
provisions. The first is the JUDICIARY ACT provision, section 55B(4) which, of course, relevantly gives
a right of audience in cases within the federal
jurisdiction. We refer to that as indicating that however described the fence on practice
within the courts of Queensland, the State courts does not apply, of course, in respect of appearance
in matters within the federal jurisdiction.
(Continued on page 119)
C 1T65 /1 / SDL 118 14/3/89 Street(2)
MR GRIFFITH (continuing): Perhaps, by way of connnent,
we would suppose that MAHER's case, that my learned friend, Mr Robertson, referred to, would
have a been a case in the federal jurisidiction.
We also refer here in passing, and we will refer
to again, is the provision of the JURISDICTION OF
COURTS (CROSS-VESTING) ACT 1987 which came into
force on the day of the hearing of the special
leave application in the Street matter, the
1 July 1988. We there attach the relevant
section of the Queensland Act which is section 5(8)
which is a specific provision enacted by the
Parliament of Queensland - or really to come into force at the same time that the - I should correct
that - a year after the rules were amended in
respect of admission.
That makes provision, in the case of transferred
proceedings which are not in federal jurisdiction
because if there were transferred proceedings within
of appearance under section 55B of the JUDICIARY ACT.
federal jurisdiction there would be the right in the case of transferred proceedings that, in
effect, the legal representation can travel to Queensland to the relevant supreme court with the transfer of proceeding and practise as a barrister or a solicitor for the purposes of that case and
the rights expressed as if the other court werea federal court exercising federal jurisdiction. We would refer to that as being an indication of parliamentary intention in Queensland, that the
right of counsel outside Queensland to appear
should not be absolutely prohibited. Of course,
there is no legislative choice in respect of theJUDICIARY ACT provisions because that is by operation of the valid provisions of the Commonwealth law. If, in respect of paragraph 3 of our
contentions, we may hand to the Court a bundle of
materials which perhaps, bearing in mind the time, almost may be suggested as overnight chambers
work for the Court.
(Continued on page 119)
ClT66/1/MB 119 Street(2) MR GRIFFITH (continuing): It is not a substantial as it looks
but if I could hand up a bundle of materials which
picks up the references to paragraph 3 of our
contentions. We do see a function of history in resolving the issues in this case and, with regard
to that, we have annexed the first chapter ofJohnston's History of the Queensland Bar including the preface which, perhaps, confirms partly what
laymen understand about lawyers, because
Mr Ross Johnston, after indicating that the history
was commissioned by the Queensland Bar, in the
last paragraph of the preface, under tab 1, says: This work was prepared and written during
1965.
And then he goes on:
Over the intervening thirteen years my
ideas and interpretations have changed in a
number of respects as to certain situations -
but he says -
So, essentially, it is a history of the
Queensland Bar until 1965, written at that
time.
And he dates it October 1978 so that, in truth, the
history is a frozen moment in 1964 and does not take
matters very far beyond that. We should mention for completeness there is also, perhaps a more
polemical book, whilst not being the authorized history of the Bar by Forbes, The Divided Legal
Profession, which, in dealing with both professions
in Queensland, does contain various references,
some more direct than oblique in respect of the
history of the Bar and I understand that my learned
friend, the Solicitor-General for New South Wales,
is going to refer the Court to that history as well.
But we would suggest that this chapter is a useful
summary of the history of the Queensland Bar, inasmuch as the Court may not be familiar with it
to 1964.
(Continued on page 121)
ClT67/l/VH 120 14/3/89 Street(2)
MR GRIFFITH (continuing): We then copy just two pages of Joyce's biography of Samuel Walker Griffith under tab 2, mainly because I discovered it in
recreational reading, but it is a description
of the circumstances of the DALLEY case that is also attached in our materials as tab 4. Tab 3 is the OWEN case, which is very short reading
and tab 5 is very interesting reading, the
regulae generales written by the hand of
Sir Samuel Griffith, one would suppose getting up
form to write the JUDICIARY ACT as he wrote in the
surmner vacation some four years later. But, we
would suggest that those regulations be read if
only to confirm what has been said by others that
no longer are barristers regarded as being
learned to the extent of being universal men, or
women.
Rule 32 of the rules provide for the
preliminary examinations in the prescribed
subjects of latin, qreek, German or French,
geometry and mechanics (statics); algebra (to
Binomial Theorem) and plane trigonometry, inorganic
chemistry or geology, ~nglish literature, including
composition, and logic elementary with prescribed
textbooks. And that, of course, is the preliminary. If I could take the Court briefly back to the extract from Griffith under tab 2, at page 32,
the last paragraph, it is said by Joyce:
Griffith was unswerving in his beliefs that individuals had differing mental capacities;
that education was needed to stimulate those
who had higher mental capacities; that a
classical and literary education had
considerable value for gifted individuals;
that legal education provided significant
understanding; and that barristers should
come from the mentally gifted, classically
and legally educated few. These tenets led
to the elitist conclusion that he belonged
to a caste superior not only to solicitors
but also to those who had no classical or legal training.
(Continued on page 122)
ClT68/l/JH 121 14/3/89 Street(2) MR GRIFFITH (continuing): That having been said, it is the case that Griffith did support amendments of the rules which initially required that
one qualification of practice was to be
unemployed for the three years prior to admission.
Having indicated to the Court those aspects
of historical reference, which we would include
also the judgment of W.B. Campbell referred to
in RE SWEENEY, which is a useful historical
compilation of the history of the rules to 1976,
I should indicate that the balance of these materials
are the full extracts of the Queensland parliamentary
debates in respect of the 1956-57 legislation
which enabled admission as a right on a reciprocal
basis and the full extract to the parliamentary
debates in 1960-61 on its repeal, one or two
pages of which have been referred to by my
learned friend Mr Bennett. That may be a convenient
time.
MASON CJ: We will resume at 10 o'clock tomorrow, Mr Solicitor.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 15 MARCH 1989
CIT69/l/JM 122 14/3/89 Street(2)
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