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Section 117 of the Constitution and Discounted Public Transport for Students

One complaint that students studying Australian Constitutional Law will make from time to time is that the subject matter that they are studying rarely has a directly affect on their day-to-day lives (unless they are selling crayfish, constructing dams or committing war crimes). I, of course, reject that proposition and a recent trip to Sydney reminded me how Australian Constitution Law can affect students.

While in Sydney I had a rather unpleasant train ride. It was unpleasant for two reasons: first, I was catching a train to Penrith which seemed to take forever; and secondly, despite the fact that I showed my student card I had to pay full fare. Why did I have to pay full fare if I had a student card? Well, I’m a South Australian with a University of Adelaide student card and CityRail in Sydney only provides the student discount to students who can show a valid student card from a tertiary institution from New South Wales. (I should also point out that this practice is not exclusive to New South Wales and I understand that the same applies in most, if not all, Australian States.)

Students of Constitutional Law will recall that section 117 of the Constitution 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.

In South Australia I am able to receive the student discount. I did my best to explain this and section 117 to the person at the ticketing desk.  Unfortunately, she did not seem too interested in my argument and refused to accept my student card.  I duly complied and paid the full fare.

With the benefit of hindsight I suspect that the automated ticketing machine may have been more sympathetic to my argument and may have allowed me to purchase a student ticket.  However, I also suspect that this may have led to me having the same conversation later in the day with the ticket inspector with possibly less chance of success. This is probably a conversation to avoid. 

Despite my protests to the person at the ticketing desk, I knew I was on shaky constitutional ground.  Hopefully those good students of Australian Constitutional Law will also remember that there are some exceptions to the general proposition that residents of one state should not be subject to discrimination in another state. One such exception is often referred to as the ‘welfare exception’. As Mason CJ stated in Street v Queensland Bar Association (at 492):

The preservation of the autonomy of the States demands that the exclusion of out-of-State residents from the enjoyment of rights naturally an exclusively associated with residence in a State must be recognised as standing outside the operation of s 117. Take, for examples, the exclusion of out-of-State residents from the right to enjoy welfare benefits provided by a State under a scheme to assist the indigent, the aged or the ill. I doubt that such an exclusion would amount to a disability or discrimination within the section.

Similarly, Deane J in Street noted (at 528):

State financial assistance to the particular class of its residents (eg a rental subsidy to disadvantaged tenants) could place an ineligible visitor who was resident (and a tenant) in another State at a comparator disadvantage is that other State provided no such subsidy. The disadvantage would, however, not flow from the subjection of the non-resident to the disability or discrimination. It would flow naturally from the nature of the subsidy and the scope of State powers and responsibility under the constitutional division of governmental authority.

Does the ‘welfare exception’ permit the States to discount rail and bus tickets for students resident in that State? Unfortunately, I think that it may well fall within the exception. Requiring State welfare schemes (such as discounted transport) to be extended to out-of-State residents would, as Mason CJ put it in Street, ‘offend accepted notions of State autonomy and financial independence and a due sense of a State’s responsibility to the people of the State to say that the Constitution required the State to extend the range of persons entitled under the scheme to out-of-State residents.’

These statements of Mason CJ and Deane J were merely obiter and they have never been tested by a brave Constitutional Law student. Why is that you might ask? Well, making such a challenge could be a costly exercise if you were unsuccessful. That is a risk that few law students would want to take. That said, in the recent case of Pape – the case in which Mr Pape challenged the Commonwealth Government’s $900 tax bonus – the parties reached agreement during the course of the hearing that they would pay their own costs. Having to pay the Commonwealth’s costs of an unsuccessful challenge would be an expensive exercise for a legal academic, let alone a law student.

So, whilst I will continue to pay full price for my train tickets in New South Wales, it is small consolation to know that students from New South Wales and Victoria have to pay full price when they catch a bus in Adelaide. Nothing like tit-for-tat.   

Adam Webster is a PhD candidate at the University of Adelaide and occasional user of public transport.

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