Section 117 – Rights of out of state residents

Rights of residents in States: 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.
•    Main culprits are going to be states
•    Undecided as to whether it actually binds the Cth Leeth
•    Remember this Section was “designed to enhance national unity and a real sense of national identity” per Mason in Street

Test Street v Qld Bar Association (1989)
•    When discrimination alleged, must make comparison between the hypothetical situation of him being resident in the discriminating State, & the discrimination or disability that he is actually being subjected to in that other state. Per Brennan.
•    Residence is interpreted liberally to include all kinds of residence.
•    Regulations of admission to bar in Qld required residence in Qld. NSW resident argued that it discriminated against him. Would have had to give up NSW practice.

Discriminatory in effect Street v Bar Association (1989)
•    Test for discrimination is one of effect, not purpose
•    Criterion of discrimination is irrelevant – it’s sufficient that a person is subject to disability or discrimination, while a person in another State is not subject to that disability or discrimination.

Domicile could be sufficient Davies & Jones v WA
•    Doesn’t necessarily preclude discrimination on the basis of domicile

Exceptions acknowledged by court in Street
•    Guiding principle that any law that is about rights that are essential to & naturally associated with residents of a state can discriminate without infringing s117.
•    Think voting rights, welfare benefits, or anything that is required for autonomy & integrity of states.

Goryl v Greyhound Australia (1994)
•    Victim of the Grafton bus crash sued in Qld, but was resident of NSW
•    Vic law sought to limit damages available to out of state resident, although Qld resident could have claimed a greater amount.
•    Held that they could not limit the amount of damages available to her based on her place of residence.
 
Section 80 – Trial by Jury

80. The trial on indictment of any offence against any law of the Cth shall be by jury, and every trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

•    A very weak right (some question whether it’s a right at all)
•    Only applies to Cth offences
•    Only applies to indictable offences – which are defined by the Cth, so Cth can ultimately determine whether there’s a trial by jury
•    Doesn’t apply to summary offences Archdell
•    Defendant can’t elect to waive the right to jury Brown v the Queen (1986)
→ hence the view that this isn’t even a right.

Current Position
•    A narrow, literal interpretation of s80 currently applies. Cth retain legislative discretion whether offence to be tried summarily or on indictment – essentially able to decide whether to grant or remove the right to trial by jury
•    Strong string of dissent for a wider interpretation – see following

Serious Criminal Cases R v Federal Ct of Bankruptcy; Ex parte Lowenstein
•    Evatt & Dixon JJ in dissent
•    s 80 should be read as a guarantee of a fundamental right to trial by jury in criminal cases.
•    Current interpretation makes mockery of an intended important right

Serious Offence Kingswell v The Queen (1985)
•    Deane J in dissent. Detailed attempt at giving s80 a different operation.
•    Took the view that offence ‘triable on indictment’ is shorthand for a serious offence, and that serious offences should be tried by jury
•    Serious offence determined by gravity of punishment (ie > 1 year)

As Above Cheng  per Gaudron and Kirby JJ
 
Section 116 – Freedom of Religion

116. The Cth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Cth.

•    Applies to all Cth laws Jehova’s Witnesses Case (1943)
•    Doesn’t apply to state laws The DOGS case (1981)
•    Likely to apply to laws made under s122 Kruger per Gaudron, Gummow, Toohey

1. What is a religion? Church of New Faith v Commissioner for Payroll Tax (1983)

•    Five indicia identified by Wilson & Deane JJ (not a rigid test)
1.    belief in the supernatural (what extends beyond the senses)
2.    ideas relating to man’s nature & place in the universe
3.    requirements that adherents engage in particular conduct
4.    ability to recognise adherents as a particular group
5.    recognition by adherents themselves of their beliefs & practices as constituting a particular religion.
•    A wider test put forward by Murphy
o    “any body which claims to be religious, and offers a way to find meaning & purpose in life is religious.”
•    Case involved Church of Scientology seeking to be classified as a religion in order to be exempt from pay-roll tax legislation.

2. What breaches s 116?

Establishment Clause The DOGS Case (1981)
•    Establishment clause adopts a narrow interpretation
•    Clause refers to laws “intended & designed to set up the religion as an institution of the Cth” per Barwick J (majority focused on this “institution of the Cth” notion)
•    Appears that the recognition of certain religions under general legislation doesn’t amount to ‘establishment’.
•    Grants to religious schools not held to contravene s 116

Prohibiting Free Exercise Krygger v Williams (1912)
•    Question whether a law that someone claims forces them to do a prohibited act, is a law prohibiting free exercise of religion
•    HC decided it wasn’t, but that s116 would operate when a law prohibits an act that a religion requires.
•    Ie. Can’t legislate to stop someone from doing a religious act, but can compel someone to do something they’re required not to.
•    →this interesting judgement hasn’t been expressly overruled.
•    K objected to swearing an oath of military service, on the ground that it was contrary to his Christian beliefs.

Limitations on Freedom of Exercise Jehova’s Witnesses Case (1943)
•    Freedom guaranteed by s116 is not absolute
•    It is subject to limitations necessary for the protection of the community & in the interests of the social order. Per Starke J
•    “it is subject to powers & restrictions of govt. essential to the preservation of the community. Freedom of religion may not be invoked to cloak & dissemble subversive opinions or practices & operations dangerous to the common weal.” per Rich J
•    GG was empowered to declare the existence of an association to be prejudicial against the war effort, rendering it illegal & resulting in dissolution & seizure of property.
•    Adelaide Co of JWs was declared unlawful. Argued that Regulations contravened s116.
•    HC held (5:O) that Regulations didn’t contravene s116.

Kruger v The Cth (Stolen Generation Case) (1997)
•    Argued that s116 should protect the tribal culture of Aboriginal families & communities in the NT.
•    Forced removal of Aboriginal children did not breach s116 as ‘no conduct of a religious nature was sought to be regulated in any way.’ per Gummow J.