Section 117 of the Constitution of Australia


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Section 117 of the Constitution of Australia provides protection against discrimination on the basis of state of residence.

Historically, section 117 had been read down by the High Court so as to be devoid of any real meaning.[1] For example, in 1904 it was found that discrimination in favour of people who are "residents of and domiciled in Western Australia" was permissible, as the Constitution only prohibited discrimination on the basis of a person's state of residence, not their state of domicile.[2]

In the 1989 landmark case Street v Queensland Bar Association, the modern approach to interpretation was developed. The court held that the purpose of the section was national unity, and consequentially, residence should be given a broader meaning. In addition, the court overruled a case in which the historical approach was used.[1]

In reaching its conclusion, each of the seven Justices issued a separate opinion. Combining this with the fact that there is little case law referencing section 117, there remains significant debate over the nature and extent of the right contained within it.[3]

  1. ^ a b Cite error: The named reference Matheison 1999 was invoked but never defined (see the help page).
  2. ^ Davies v Western Australia [1904] HCA 46, (1904) 2 CLR 29 (23 December 1904), High Court (Australia)
  3. ^ Cite error: The named reference Simpson 2008 was invoked but never defined (see the help page).