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Defining the Limits of Section 117 of the Constitution: The Need for a Theory of the Role of States


Daniel Reynolds

Since the 1989 High Court decision in Street v Queensland Bar Association (‘Street’), it has been recognised that section 117 of the Australian Constitution, which prohibits discrimination on the basis of state residence, is not absolute in its operation. For example, states may limit voting in state elections to their own residents. However, no consensus was reached in Street as to how the limits to section 117 are to be defined, nor since. This article argues that the resolution of this issue will require the Court to develop a theory of the role of states, which will involve identifying the functions that states are constitutionally expected to perform. The article proceeds to explore how such a theory might be developed, having regard firstly to the text, purpose and history of section 117, and then to those constitutional sources that shed light on what it is that states are supposed to do.

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(2021) 44(2) UNSWLJ 786: