The Constitution does not require equal numbers of people or electors in electoral divisions for the House of Representatives, but does require that the number of members chosen in each State be proportionate to the State's population, and legislative provisions that permit circumvention of this proportionality requirement are invalid.
Later decisions that cite Attorney-General (Cth); Ex rel Mckinlay v Commonwealth
Decisions cited by Attorney-General (Cth); Ex rel Mckinlay v Commonwealth
ATTORNEY-GENERAL (CTH); Ex rel. MCKINLAY v. THE COMMONWEALTH ;
SOUTH AUSTRALIA v. THE COMMONWEALTH ;
LAWLOR v. THE COMMONWEALTH [1975] HCA 53; (1975) 135 CLR 1
Constitutional Law (Cth) - High Court
High Court of Australia
Barwick C.J.(1), McTiernan(2), Gibbs(3), Stephen(4), Mason(5), Jacobs(2) and
Murphy(6) JJ.
CATCHWORDS
Constitutional Law (Cth) - Parliament - House of Representatives - Members - Elections - Requirement that members be "chosen by the people of the Commonwealth" - Electoral divisions - Whether equal numbers of people or electors required within divisions - Requirement that number of members be in proportion to number of people - Manner in &which number of members should be ascertained - Validity - Reference to census - Alteration in number of members delayed until divisions redistributed - The Constitution (63 & 64 Vict. c. 12), ss. 24,* 25, 26, 27, 28, 29,* 30, 31, 32 - Commonwealth Electoral Act 1918-1975 (Cth), ss. 18, 19, 24, 25 - Representation Act 1905-1974 (Cth), ss. 2, 3, 4, 10, 12 - Census and Statistics Act 1905-1973 (Cth).High Court - Jurisdiction - Actions for declarations of invalidity of Commonwealth election laws - Action by Attorney-General of State - Action by individual - Allegation of failure to comply with constitutional requirements that members be chosen by people of the Commonwealth and that number of members be proportionate to number of people - Whether justiciable - Locus standi of plaintiffs.
* Section 24 of the Commonwealth Constitution provides:
"24. The House of Representatives shall be composed of members directly
be, as nearly as practicable, twice the number of the
senators.
The number of members chosen in the several States shall be in proportion to
the respective numbers of their people, and shall,
until the Parliament
otherwise provides, be determined, whenever necessary, in the following
manner:
(i) A quota shall be ascertained by dividing the number of the people of
the Commonwealth, as shown by the latest statistics of
the Commonwealth, by
twice the number of the senators;
(ii) The number of members to be chosen in each State shall be determined
by dividing the number of the people of the State, as
shown by the latest
statistics of the Commonwealth, by the quota; and if on such division there is
a remainder greater than one-half
of the quota, one more member shall be
chosen in the State.
But notwithstanding anything in this section, five members at least shall be
chosen in each Original State."
Section 29 provides:
"29. Until the Parliament of the Commonwealth otherwise provides, the
Parliament of any State may make laws for determining the
divisions in each
State for which members of the House of Representatives may be chosen, and the
number of members to be chosen for
each division. A division shall not be
formed out of parts of different States."
HEARING
Sydney, 1975, November 3,5; December 1. 1:12:1975DECISION
December 1.The following written judgments were delivered:-the statement of claim in each of three suits in which the Commonwealth of Australia and Francis Lyell Ley the Chief Australian Electoral Officer appointed under the Australian Electoral Office Acts, 1973 were the defendants. Each suit challenged the validity of parts of the Commonwealth Electoral Act, 1918-1975 ("the Electoral Act"). Two of them, as the result of amendments to the respective statements of claim, challenge the validity of the Representation Act, 1905-1973 ("the Representation Act"). (at p13)
BARWICK C.J. The Court heard together three demurrers each to the whole of
2. One suit was brought by the Attorney-General for Australia upon the
relation of Brian John McKinlay, a resident of the State
of Victoria and a
voter registered on the electoral roll of the electoral division of Diamond
Valley in the State of Victoria. By
the statement of claim in this suit it is
alleged that the electoral division of Diamond Valley in the State of Victoria
contains
a number of people, or alternatively a number of electors, which
number is not as nearly as practicable the same as the number of
people, or
alternatively of the number of electors, in other electoral divisions of that
State. Of this disparity, particulars are
given. (at p13)
3. It is further alleged that the defendants threaten and intend to cause the
next election of the House of Representatives to take
place without any
further distribution of the States into divisions or alternatively that they
threaten and intend to make a further
distribution of the State of Victoria
and other States into divisions pursuant to the provisions of the Electoral
Act and, thereafter,
to cause the next election of members of the House of
Representatives to take place in accordance with such further
distribution.
(at p13)
4. Asserting that the provisions of s. 19 of the Electoral Act are therefore
contrary to s. 24 of the Constitution and invalid, the plaintiff in this suit
seeks:
1. A declaration that the boundaries of the electoral division of Diamond
Valley are not fixed according to law.
2. A declaration that so far as ss. 18, 18A, 19, 23, 23A and 24 of the
Electoral Act purport to authorize the making of a proposed
distribution of
the State to determine that the divisions of the numbers of whose people,
or
alternatively electors, are not as nearly
as is practicable the same, the
sections are invalid.
3. A declaration so far as the said sections of the Act purport to
authorize the determination by the Parliament that members
of the House of
Representatives may be chosen to represent electoral divisions, numbers of
whose people, or alternatively electors,
are not as nearly as is practicable
the same, the sections are invalid.
4. A declaration that unless and until the State of Victoria and each other
State is divided into electoral divisions the respective
total numbers of
whose people, or alternatively electors, are as nearly as is practicable the
same, the said State and each other
State shall for the purposes of any
election of members of the House of Representatives each be one electorate.
(at p14)
5. The plaintiff further seeks an injunction to restrain the defendants
holding or conducting any election for the House of Representatives
other than
an election in which the electoral divisions within each State are electoral
divisions the numbers of whose people, or
alternatively electors, are as
nearly as is practicable the same or, alternatively, an election pursuant to
s. 29 of the Constitution upon the basis that each State shall be one
electorate. (at p14)
6. Another of these suits is brought by the State of South Australia, its
Attorney-General and one Christine Anne Goodchild, the
last-named being
resident in and enrolled for the electoral division of Bonython in that State
and entitled to vote as an elector
of that division. The Divisional Returning
Officer for the electoral division of Bonython appointed pursuant to the
Electoral Act
is joined as an additional defendant in this suit. The
statement of claims alleges that a distribution of the States of New South
Wales, Victoria, South Australia, Western Australia and Tasmania into
electoral distributions was proclaimed on 21st November 1968,
and that the
distribution of Queensland into electoral divisions was proclaimed on 27th
February 1969, and that no later distributions
have been made with respect to
any of the States of Australia; that general elections for the House of
Representatives were held
in 1972 and in 1974 but no general election has been
held since; that the electoral divisions in the State of South Australia are
not, and for several years at the least have not been, as nearly as
practicable of numerically equal size, with respect to either
the people or
the electors of the Commonwealth residing in them. Particulars of this
allegation are given. It is further alleged
generally that there is a
disparity of size between the divisions both with respect to the number of
people and the number of electors
of a similar kind that was described in the
case of South Australia in the States of New South Wales, Victoria,
Queensland, Western
Australia and Tasmania respectively. There are, as in the
statement of claim in the first-mentioned case, assertions that the defendants
intend to hold elections without there having been distribution of divisions
in all the States which will be substantially, or as
near as is practicable,
equal in size either as to the number of people or as to numbers of electors.
(at p15)
7. These plaintiffs claim similar declarations to those which I have already
detailed but in addition, they seek a declaration that
ss. 24 and 25 of the
Electoral Act, in so far as they would enable a redistribution of a State into
electoral divisions to be delayed
for more than a reasonable time
after the
existing divisions have ceased to be as nearly as practicable or numerically
equal in size,
are invalid. Injunctive relief
of the same kind as that which I
have already mentioned in the case of the first suit is also claimed.
(at
p15)
8. Upon the demurrers being called for hearing before the Court, the
plaintiffs in this second suit sought and were given leave
to amend their
statement of claims in order to challenge the validity of the Representation
Act. The amendment alleges that the
determination of the number of members of
the House of Representatives to be chosen in the several States was made in
accordance
with the provisions of the Representation Act in September 1972 and
no determination has since been made. These plaintiffs in their
amended
statement of claim seek a declaration that the Representation Act, in so far
as it fails to require the number of members
to be chosen in the several
States to be in proportion to the respective numbers of their people and
purports to admit the provisions
of s. 24 of the Constitution to be
contravened, is invalid. (at p15)
9. The third of the suits was brought by Mary Bridget Lawler who is enrolled
as an elector for the election of members of the House
of Representatives upon
the roll for the electoral division of MacPherson in the State of Queensland.
The statement of claim alleges
that the number of electors enrolled for the
electoral division of MacPherson on 18th May 1974 was grossly in excess of the
quota
obtained by dividing the number of electors by the number of members
which the plaintiff claims the people of Queensland were then
entitled to have
for the House of Representatives. (at p15)
10. The 18th May 1974 was a date on which an election for the House of
Representatives was held and a member for the electoral division
of
MacPherson, elected. The plaintiff alleged that the electoral divisions into
which Queensland is divided do not comprise and
have not at any material time
since the date of the last distribution of that State into electoral divisions
comprised, electors
whose respective total numbers are as nearly as is
practicable equal. Particulars of this allegation are given. It was then
alleged
that by reason of this inequality in electors within each division
"the weight which a vote cast by the plaintiff had or has or will
have in the
election of a member of the House of Representatives is significantly less
than that of the vote of each elector in any
other electoral division in the
State" and that "the member of the House of Representatives elected for the
electoral division of
MacPherson represents a significantly greater number of
electors than members of the House of Representatives elected for any other
electoral division in the State". This plaintiff asserts that it was at all
material times reasonably practicable for the State
to be divided into
electoral divisions in such manner as to secure more equal voting weight to
electors. This plaintiff seeks declarations
that: s. 19 of the Electoral Act
is ultra vires the Constitution because it enables an electoral division to be
under-represented and/or permits discriminatory representations and purports
to fix
the weight and composition of the electoral divisions within the State
and, in the alternative, that at the time of the federal election
for the
division of MacPherson in May 1974 the said division consisted of a number of
qualified electors in excess of the variation
provided for above or below the
electoral quota as contained in s. 19 of the Electoral Act and that the
plaintiff is and has at all
material times been deprived of the representation
provided by virtue of the relevant enactment
as aforesaid. The plaintiff also
seeks another declaration substantially in the terms as one of those to which
I have already referred
and seeks substantially the
same injunctive relief.
(at p16)
11. This plaintiff also sought and obtained leave to amend the statement of
claim in terms identical to the amendment sought and
granted in the suit
brought by the State of South Australia. (at p16)
12. The counsel for the defendants in each of the suits announced at the
outset that he was instructed not to submit that any of
the plaintiffs lacked
sufficient interest to maintain their respective suits. (at p16)
13. The Court gave leave to the States of Western Australia, Victoria, New
South Wales and Queensland to intervene to support the
validity of the
legislation which the suits attacked. (at p16)
14. The principle submission as to the invalidity of the Electoral Act
supported by all the plaintiffs was that there is to be found
or implied in s.
24 of the Constitution a guarantee that if the States of Australia should be
divided into divisions for the purpose of choosing members of the House of
Representatives, such divisions shall comprise an equal number of people or,
as it was put, such divisions shall be of "practical
equality" in numbers of
people. (at p17)
15. An alternative submission was that, in the given circumstances, such
divisions should be comprised of equal numbers of electors.
A further
alternative submission, in order to provide for the possibility of the States
or some of them being divided into multiple
member electoral divisions, was
that every division should be practically equal in the number of people, or
alternatively, of electors,
per member to be chosen for the division. (at
p17)
16. This guarantee was sought to be derived either by implying the word "all"
before the word "people" in the first paragraph of
s. 24 or by regarding the
total expression "directly chosen by the people" as necessarily involving the
concept of each person having an
equal vote in an election for the House of
Representatives, or by a combination of both courses. (at p17)
17. The problem which is thus presented to the Court is a matter of the legal
construction of the Constitution of Australia, itself a legal document; an Act
of the Imperial Parliament. The problem is not to be solved by resort to
slogans or
to political catch-cries or to vague and imprecise expressions of
political philosophy. The question of the validity of an Act of
the
Parliament, namely, the Electoral Act, is to be decided by the meaning of the
relevant text of the Constitution having regard to the historical setting in
which the Constitution was created and the terms and operation of the Act in
respect of the subject matter which, upon that construction, is committed by
the Constitution to the Parliament. The only true guide and the only course
which can produce stability in constitutional law is to read the language
of
the Constitution itself, no doubt generously and not pedantically, but as a
whole: and to find its meaning by legal reasoning. I respectfully agree
with
Sir Owen Dixon's opinion that "there is no other safe guide to judicial
decisions in great conflicts than a strict and complete
legalism". In case of
ambiguity or lack of certainty, resort can be had to the history of the
colonies, particularly in the period
of and immediately preceding the
development of the terms of the Constitution. But it is settled doctrine in
Australia that the records of the discussions in the Conventions and in the
legislatures of the colonies
will not be used as an aid to the construction of
the Constitution. (at p17)
18. Though the true construction of s. 24 is the principal matter for
consideration, it is necessary in order to resolve it to examine the
provisions of the whole of Pt III of the Constitution. (at p17)
19. The expression in s. 24 "chosen by the people of the Commonwealth" has
its counterpart in s. 7 where the expression is "directly chosen by the people
of the State". Until the Parliament should otherwise provide, each State
is
to be one electorate. The original States, which are still the only States,
are to elect an equal number of senators. The relative
populations of the
States have always varied very considerably. Thus, there could be no question
that equality of voting strength
throughout Australia was intended or provided
for in s. 7. The expression in that section refers to the people of the State.
This cannot mean that all the people of the States are to have
a vote in a
Senate election. If the people of the State is equated with the population, it
would be both an unreasonable and impractical
interpretation of the expression
to read it as securing the franchise to every child and teenager in the
population. If, on the
other hand, the word "people" is read as referring to
the electors of the State, it is quite evident from other provisions of Pt III
that adult suffrage in each State was not intended or required by the
expression "directly chosen by the people". Section 8 provides that the
franchise for election of senators shall be that which is prescribed by the
Constitution or by the Parliament for the election of members of the House of
Representatives. This is a reference to s. 30 of the Constitution. The
franchise for the election of senators is therefore that prescribed by the
State for the election of its most numerous House,
provided that each elector
shall vote only once: that is to say, plurality in voting is in any case
prohibited. (at p18)
20. This franchise is to stand until the Parliament, having legislative power
to enact a franchise for the State, or for the States
as a whole, does so.
This legislative power of the Parliament derives from the opening words of s.
30 combined with the provisions of s. 51(xxxvi.). Section 30 is not made
subject to the Constitution. Thus it is not in terms subjected to s. 24.
There is no constitutional requirement to be found in s. 30 that a State
should prescribe any particular franchise: or that it should maintain the
franchise which obtained in the State at
the date of the enactment of the
Constitution. Further, s. 30 does not require the Parliament, should it
legislate on the matter, to prescribe any particular franchise: but s. 41
does place a limitation on what may be prescribed. For a discussion of s. 41,
see King v. Jones [1972] HCA 44; (1972) 128 CLR 221 . (at p18)
21. Adult suffrage was unknown in the majority of the colonies of Australia
in 1900. In New South Wales women were not then enfranchised,
natural-born or
naturalized males of twenty-one or over only having a vote. In Victoria, only
natural-born or naturalized male persons
twenty-one or over with a residential
or property qualification were enfranchised. In Queensland, only
natural-born, naturalized
male persons and male denizens twenty-one or over
with a property qualification were given the franchise, with an exception in
the
case of aboriginal natives of Australia, India, China and the South Sea
Islands, unless they satisfied the property qualification.
In South
Australia, both male and female British subjects twenty-one or over could
vote. In Western Australia, natural-born or
naturalized adult persons of both
sexes with a residential qualification had the franchise, and in Tasmania,
only adult males natural
born or naturalized and adult male denizens
satisfying a property or residential and income qualification could vote. In
Tasmania,
Western Australia and Queensland, plural voting related to property
qualification was allowed. (at p19)
22. Thus the Constitution not only left the prescription of the franchise to
the States until the Parliament should pass a law on the matter, but the
existing
franchises were constitutionally acceptable. If adult suffrage had
been intended, bearing in mind the various colonial franchises
to which I have
referred it is unthinkable that express provision in that behalf should not
have been made. It is certain to my
mind that the politically experienced
members of the constitutional conventions, from which the terms of the
Constitution emerged, would not have left the prescription of adult suffrage
to be found in the expression "directly elected by the people" or
that they
would have recognized that expression as so providing. (at p19)
23. What I have so far written on the expression "directly elected by the
people" in s. 7 is equally applicable to the same expression in s. 24, though
in that section it relates to the people of the Commonwealth. (at p19)
24. The matter is carried further in relation to s. 24 by a consideration of
s. 29 of the Constitution which left it in the first place to each State to
determine the boundaries of the electoral divisions within the States and the
number
of members to be chosen by any division. This section also is not
prefaced with the words "Subject to this Constitution", so that s. 24 is not
in terms dominant of its provisions. (at p19)
25. The Australian colonies in 1900 determined their electorates by various
methods. But none insisted on "practical equality"
of numbers of people or of
electors in the electoral divisions. New South Wales distributed the colony
into districts by the use
of a quota derived from the number of electors in
relation to the number of members to be elected for its most numerous House.
A
margin of deviation from the quota was allowed after considering community
or diversity of interest, lines of communication and physical
features. The
boundaries were drawn by electoral commissioners. In Victoria and Queensland,
the boundaries of each electoral district,
some single member and others dual
member districts, were scheduled to an Act. In South Australia, the
boundaries of two member
electoral districts were scheduled to the Electoral
Code. In Western Australia, the boundaries of electoral districts, each being
a single member district, were scheduled to an Act. In Tasmania, the majority
of the electoral districts were single member districts
but one was a six
member district and another a four member district. The boundaries of all
districts were as set out in a schedule
to an Act. There is nothing to
suggest that in the case of electoral divisions of which the boundaries were
scheduled to an Act
that those divisions were practically equal in numbers of
people or of electors. (at p20)
26. Bearing in mind this diversity and the complete absence of any necessary
equality, either in numbers of people or of electors,
of the electorates in
the colonies, the fact that s. 29 left it to the States, until the Parliament
should otherwise provide, to
distribute the State into electoral districts and
to fix the number of members to be chosen for each district, without any
reference
express or implied to s. 24, tells strongly, in my opinion, if not
definitively against these submissions made by the plaintiffs.
(at p20)
27. Section 25 is also significant. It deals with State electoral provisions
which may discriminate in the franchise on the basis
of race, not by
disallowing or forbidding such discrimination, but merely by excluding the
unfranchised person from the tally of
the State's population. (at p20)
28. Section 24 evidently performs several functions. First, it provides for
direct as distinct from indirect election of members
to compose the House of
Representatives. Secondly, it fixes the total number of the members by
relation to the number of senators.
It then provides for the distribution of
that number of members between the several States of the Federation. (at p20)
29. The plaintiffs in setting great store by the expression "directly chosen
by the people" place the emphasis not upon the word
"directly" but really upon
the word "people". The plaintiffs assert that this indicates a guarantee that
everyone should have an
equal vote. But, in my opinion, that assertion just
cannot validly be made. The provisions of the sections of the Constitution to
which I have already referred make it impossible, in my opinion, as a matter
of legal interpretation so to conclude. (at p21)
30. I can find no warrant to imply in s. 24 the word "all" in the sense in
which the plaintiffs would seek to have it implied. But, further, and in any
case, in my opinion,
the expression "directly chosen by the people" is merely
emphatic of two factors: first, that the election of members should be
direct
and not indirect as, for example, through an electoral college and, secondly,
that it shall be a popular election. It is
not an indirect reference to any
particular theory of government. Members of the more numerous Houses of the
Australian colonies,
according to the franchises to which I have referred,
were, in my opinion, elected directly by popular election. Within the meaning
of the constitutional expression they could properly have been said to have
been directly chosen by the people of the colony. (at
p21)
31. At this point it is proper to observe that in contrast to the
Constitution of the United States, the Constitution does not require that a
census be taken and statistics compiled at any particular time. The present
requirement of an enumeration
day is statutory and not constitutional. Thus,
there is no constitutional requirement that the latest statistics of the
Commonwealth
be up-to-date. At the present time, the Census and Statistics Act
1905-1973, required the taking of a census every tenth year following
on 1911:
s. 8. But regulations made under that Act now provide for a census each fifth
year. However, the statistician is to collect,
at least annually, statistics
in relation to population: s. 16. He must complete and tabulate such
statistics and publish them
as ministerially directed: s. 20. Such
statistics would qualify, in my opinion, as the latest statistics for the
purposes of s.
24. But from the point of view of the construction of the
Constitution, the absence of any constitutional requirement of the holding of
a census or of the compilation of statistics is significant. So
far as
concerns the Constitution itself, the latest statistics may be, though the
latest, yet stale. (at p21)
32. It is obvious that s. 24 does not require a precise mathematical
relationship of the number of members chosen in a State to the numbers of the
people of the
State. The second paragraph reflects the fact that the use of
the formula proposed in the second paragraph will not necessarily
result in a
precise relationship of the population of a State to the number of members to
be chosen for that State. A remainder
is envisaged. This of necessity must
produce a very considerable divergence from a precise mathematical
relationship of the number
of members chosen in the State to the population of
that State. Comparison between a State which has a remainder equal to ninety
per cent of the quota and a State which has a remainder of forty-nine per cent
of the quota is sufficient to illustrate the point.
One would have an
additional member but only one and the other would have none. Further, the
requirement that each original State
should have at least five members
precludes the relationship of the number of members chosen in the State to the
population of the
State being exactly proportional. We know, according to the
populations of the colonies in 1900 that, but for this provision, the
use of
the quota which s. 24 describes would have resulted in less than five members
being chosen in Tasmania and Western Australia. (at p22)
33. The method of determining the number of members chosen in the State so
that they will be in proportion to the several populations
of the States,
which s. 24 specifies, may be regarded as an interim provision. It was not
for use in the first election for which s. 26 made express provision. But it
was available for use in subsequent elections till the Parliament legislated
on the matter. I shall
return to this aspect of s. 24 when dealing with the
Representation Act. It is sufficient in relation to the submissions on ss. 24
and 29 to emphasize that nothing
in the terms of the prescribed method of
determining the number of members to be chosen in the several States lends any
support,
in my opinion, to the plaintiff's submissions. (at p22)
34. It is therefore my opinion that the second paragraph of s. 24 cannot be
read as containing any guarantee that there will be
a precise mathematical
relationship between the numbers of members chosen in a State and the
population of that State or that every
person in Australia or that every
elector in Australia will have a vote, or an equal vote. (at p22)
35. However, considerable reliance was placed by the plaintiffs on the
decisions of the Supreme Court of the United States upon
the expression
"directly chosen by the people" in Art. 1 of the Constitution of that country.
The particular decisions to which reference has principally been made are
Baker v. Carr [1962] USSC 48; (1962) 369 US 186 (7 Law
Ed 2d 663) , Wesberry v. Sanders [1964] USSC 31; (1964)
376 US 1 (11 Law Ed 2d 481) , Kirkpatrick v. Preisler [1969] USSC 112; (1969) 394 US 526 (22
Law Ed 2d 519)
and White v. Weiser [1973] USSC 153; (1973) 412 US 783 (37 Law Ed 2d 335) . It
is pointed out by the plaintiffs that to a considerable extent, the
Constitution of the United States was used as an exemplar by those who
developed the terms of the Australian Constitution: and that the precise
expression in Art. 1 was embodied in ss. 7 and 24. But the meaning latterly
placed by the Supreme Court upon this expression is not to be found in any
earlier decision and in any
case the two Constitutions have radical
differences. The basic American decision for present purposes is Wesberry v.
Sanders [1964] USSC 31; (1964)
376 US 1 (11 Law Ed 2d 481) . The later decisions of
Kirkpatrick v. Preisler [1969] USSC 112; (1969) 394 US 526 (22 Law Ed 2d 519) and White v.
Weiser [1973] USSC 153; (1973) 412 US 783 (37 Law Ed 2d 335) merely apply the first of these
decisions. Examination of the reasons for judgment
in Wesberry
v. Sanders
[1964] USSC 31; (1964) 376 US 1 (11 Law Ed 2d 481) clearly demonstrates that the meaning
attributed to the expression "directly
chosen by the people"
in Art. 1 of the
Constitution of the United States by the majority of the Justices in that case
depended heavily, if not almost entirely, upon the view taken by
the majority
of American history and of statements made in the constitutional conventions
preceding the adoption of that Constitution. It is evident on reading the
views of the minority in that case that there is, to say, the least, great
doubt as to the validity
of the view of that history and of those statements
taken by the majority. However, it is not for this Court to attempt to
resolve
the difference between the majority and the minority as to what
actually took place in pre-federation America and in the conventions
or as to
the significance of what did in truth take place. Suffice it to say that, in
my opinion, the meaning attributed to the
words of Art. 1 would not have been
adopted by the majority of the Supreme Court except for the view taken by that
majority of American
history and, in particular, of the statements made in the
American conventions. That history and those statements had no counterpart
in
Australia. (at p23)
36. Further, it must always be borne in mind that the American colonies had
not only made unilateral declarations of independence
but had done so in
revolt against British institutions and methods of government. The concepts
of the sovereignty of Parliament
and of ministerial responsibility were
rejected in the formation of the American Constitution. Thus, not only does
the American Constitution provide for a presidential system, but it provides
for checks and balances based on the denial of complete confidence in any
single
arm of government. (at p23)
37. In high contradistinction, the Australian Constitution was developed not
in antagonism to British methods of government but in co-operation with and,
to a great extent, with the encouragement
of the British Government. The
Constitution itself is an Act of the Imperial Parliament which, except for a
significant modification of the terms of s. 74, is in the terms proposed by
the Australian colonists and accepted by the British Government. Because that
Constitution was federal in nature, there was necessarily a distribution of
governmental powers as between the Commonwealth and the constituent
States
with consequential limitation on the sovereignty of the Parliament and of that
of the legislatures of the States. All were
subject to the Constitution. But
otherwise there was no antipathy amongst the colonists to the notion of the
sovereignty of Parliament in the scheme of government.
(at p24)
38. Also it is well known that the Constitution of the United States would
not have been accepted except on the footing that it would be amended to
include a Bill of Rights. It
is very noticeable that no Bill of Rights is
attached to the Constitution of Australia and that there are few guarantees.
Not only are the powers given to the Parliament plenary but there is a large
number
of provisions in the Constitution which leave to the Parliament the
power of altering the actual constitutional provisions. In other words,
unlike the case of the
American Constitution, the Australian Constitution is
built upon confidence in a system of parliamentary Government with ministerial
responsibility. (at p24)
39. The contrast in constitutional approach is that, in the case of the
American Constitution, restriction on legislative power is sought and readily
implied whereas, where confidence in the parliament prevails, express words
are regarded as necessary to warrant a limitation of otherwise plenary powers.
Thus, discretions in parliament are more readily accepted
in the construction
of the Australian Constitution. The federating colonies committed themselves
to what the Parliament, not what the House of Representatives, but the House
of Representatives
and the Senate, might do in relation to the franchise and
the electoral distribution of the States, building in the safeguard of
the
equality of legislative power with one exception, in the two Houses. (at p24)
40. In my opinion, in the construction of the Constitution of Australia,
decisions of the Supreme Court upon the Constitution of the United States are
frequently inapt, and none more so, in my opinion, than the decisions of the
Supreme Court on Art. 1. (at
p24)
41. Further, the American Constitution has no counterpart of the provisions
of Pt III of the Australian Constitution other than the opening words of s.
24. As I have indicated, these provisions render quite impossible the
construction of those words in the sense adopted in Wesberry v.
Sanders [1964] USSC 31; (1964)
376 US 1 (11 Law Ed 2d 481) . (at p25)
42. Whilst, in my opinion, there is no constitutional guarantee of a
universal franchise of equal voting strength or value, nor
of practical
equality in electoral divisions either in numbers of people or of electors,
the Parliament in the Electoral Act has
legislated a uniform adult franchise
and has, in my opinion, made a real endeavour to secure equality of voting
value when providing
for the distribution of the States into electoral
divisions. Section 19 prescribes a number of factors to be taken into account
in an electoral distribution which, in my opinion, do tend to secure equality
of voting strength or value. I am unable to accept
the view that mere
equality of numbers of people in a division provides equality
of voting value.
One has only to contrast the situation
of a voter in an electoral division in
which there is a high proportion of
children and teenagers under the age of
eighteen with
a voter in an electoral division with an equal number of people
in which there
is a negligible proportion of children and of such
teenagers to
realize that mere equality of numbers, all other considerations aside,
will
not ensure equality in voting value. (at
p25)
43. Again, to ignore community of interest in the creation of electoral
divisions and to insist on mere equality of numbers will
be likely, in my
opinion, to produce inequality rather than equality of voting value. It is
probably impossible to devise a formula
for electoral distribution which will
necessarily produce equality in voting value, which will ensure that each vote
is of equal
weight in an election as a whole or even as between electoral
divisions. But s. 19, grounded as it is upon long parliamentary experience,
in not insisting on practical equality in numbers in divisions, accepting
a
tolerance of inequality of numbers expressed in a percentage,
and in
nominating the various considerations to be regarded when
effecting a
distribution, in my opinion, represents a practical
endeavour to solve the
problem and does represent a scheme designed
to produce equality of voting
value. I do not read that section
as directing the percentage tolerance as
itself a goal in the distribution.
The section directs consideration of the
stated factors
and allows the proper consideration and weighting of them to
produce a result
within the permitted tolerance of equality. (at p25)
44. Thus, the confidence reposed in the Parliament by s. 30 and s. 51(xxxvi.)
has not, in my opinion, been misplaced: nor has use
of the plenary power
given by s. 29 and s. 51(xxxvi.) in leaving with the Parliament the decision
of a basis of distribution of the
States into electoral divisions been shown
to have
been misplaced. (at p26)
45. I am of opinion that Pt III of the Electoral Act is not invalid. In my
opinion, in particular, no part of s. 19 is invalid.
It is impossible, in my
opinion, to read either s. 24 or s. 29 of the Constitution, or both in
combination, as expressing or implying any constitutional guarantee that
electoral divisions in the States will be equal
in numbers of people or of
electors. (at p26)
46. I now turn to the third issue, the attack on the Representation Act.
Some discussion took place during the argument of the demurrers
as to whether
the plaintiffs who raised this issue had any standing to do so. Clearly, in
my opinion, the Court has jurisdiction
to hear a challenge to an Act. But,
although no question of the competence of any plaintiff was raised by the
defendants, it seems
to me that the Court should decide that the individual
citizen has no standing to challenge the validity of the Representation Act.
(at p26)
47. First, as to the plaintiff, Lawlor. This plaintiff has no particular
damage or inconvenience accruing to her as distinct from
and beyond any
disadvantage or injury which may be caused to members of the public generally
by the operation of the Act. If the
Act is to be challenged where there is no
such individual consequence, in my opinion, it must be by the Attorney-General
of the State
in his capacity as parens patriae. (at p26)
48. As to the suit brought by the State of South Australia and its
Attorney-General, it was said that there was no allegation in
the statement of
claim that action under the Representation Act had resulted in an inadmissible
disproportion between the number
of members chosen for the State of South
Australia and its population. So much may be granted but on consideration it
seems to me
that the right of South Australia to challenge the Representation
Act on the footing that it is not a law in exercise of the power
given to the
Parliament by s. 51(xxxvi.) and s. 24 of the Constitution does not depend upon
any allegation that damage or disadvantage has actually been suffered by the
State of South Australia. In my
opinion, the State of South Australia and its
Attorney-General have a right in this suit to ask this Court to pass upon the
validity
of the Representation Act in point of constitutional power because,
if valid, it would be a provision by the Parliament displacing
the
constitutional manner of determining the number of members which can be chosen
in the State of South Australia for the House
of Representatives. The
challenge to the Act does not depend, in my opinion, on any allegation of
fact. It depends solely on the
terms of the Act as compared with the nature
of the subject matter upon which the Parliament may legislate. Accordingly,
in my opinion,
the State of South Australia and the Attorney-General for that
State have an interest to challenge the validity of the Representation
Act
before this Court. (at p27)
49. In order to discuss that validity, it is necessary, it seems to me, first
to determine what is the subject matter upon which
the Parliament is empowered
to make laws by virtue of s. 51(xxxvi.) and s. 24. The legislative power is a
power to make laws with
respect to a matter in respect of which the
Constitution makes provision until the Parliament otherwise provides. Now, it
is important to observe that the expression "until the Parliament
otherwise
provides" does not preface the whole of the second paragraph of s. 24. As I
have said elsewhere, it is quite inadmissible in construing this Constitution
to insert such an expression before a constitutional provision when it does
not so appear in the text. The draftsman of the Constitution has been quite
scrupulous in the placement of the words "until the Parliament otherwise
provides". He has followed that course in
the second paragraph of s. 24. The
words appear before the words "be determined, whenever necessary, in the
following manner". The question to ask, in order to
determine the subject
matter of the legislative power, is in my opinion, what is the matter in
respect of which the Constitution has made provision until the Parliament
otherwise provides? It seems to me that the answer to that question is that
the matter in
respect of which the Constitution so makes provision is the
manner of determining the number of members chosen in the several States in
proportion to the respective
numbers of their people. There is no warrant, in
my opinion, for the view that the Parliament may alter the terms of the first
sentence
of the second paragraph of s. 24. The constitutional provision that
the number of members chosen in the several States shall be in proportion to
the respective numbers
of people, whatever is the proper construction of those
words, must stand and it is not within the competence of the Parliament to
alter it. Further, the final words of the first paragraph of s. 24 namely
"whenever necessary" is not a matter which the Parliament may alter or decide.
(at p27)
50. I have already observed that a precise or accurate mathematical
relationship between the number of members chosen in a State
and the
population of the State is not intended. I have also observed that there is
no provision in the Constitution for maintenance of up-to-date statistics,
either by way of census or otherwise. But though there is no constitutional
obligation
to maintain them when the constitutional manner of determining the
number of members to be chosen for the State is employed, it will
be the
latest available statistics which will have to be employed in the operation of
the formula, perhaps even if they are not statutorily
compiled. I have
referred to the relevant and current provisions of the Census and Statistics
Act 1905-1973 in this connexion.
In my opinion, the power of the Parliament
is to make a law providing for use "whenever necessary" a manner of
determining the number
of members to be chosen in the several States in
proportion to the respective numbers of their people. (at p28)
51. The second paragraph of s. 24 provides for determining the number of
members to be chosen in the several States "whenever necessary".
In my
opinion, this provision does not commit to the Parliament to determine when it
is necessary to determine that number of members.
If no valid law has been
passed by the Parliament otherwise providing, the quota will be employed to
determine the number of members
chosen whenever it is, in fact, necessary.
This Court must determine what that expression means and in the last resort
must decide
the result of applying that meaning to any given factual
situation. (at p28)
52. In my opinion, the meaning of the expression is that the number of
members to be chosen in the States must be determined for
each regular
election for the House of Representatives. The words "whenever necessary" are
not tied, in my opinion, to the possible
changes in population as revealed by
the latest statistics. I rather think that the expression is tied to the
effect upon the electoral
processes on the determination of the number of
members to be chosen in the several States. It is the determination of the
number
of members which must be made whenever necessary. There is no
constitutionally required census date to which that determination
could be
referable: and I am unable to conclude that it could be referable to some
census date determined by or under an Act of
Parliament. To so conclude would
be to leave it to the Parliament in an indirect way to decide when it was
necessary to make the
determination. If there had been a constitutional
requirement of a census to be held at specified intervals, it might be said,
in
my opinion, that whenever that census indicated an apparent disproportion
of the number of members chosen for any State and the then
population of that
State, it would be necessary to utilize the formula: but as I have already
pointed out there is no constitutional
necessity to take a census at any time
or at any stated intervals of time. (at p28)
53. Section 61 places in the executive power of the Commonwealth, amongst
other things, the execution of the constitutional manner
of determining the
number of members to be chosen in the States to execute the Constitution.
Thus, if there were no valid Act of the Parliament otherwise providing, it
would devolve upon the Executive to apply the constitutional
manner of
determining the number of members to be chosen in each State by use of the
latest statistics and the quota and, in my opinion,
to do so before and in
time for an ensuing general election. Thus, if the Parliament did not
otherwise provide by a valid law, the
constitutional manner of determining the
number of members to be chosen in the several States would necessarily have
been used by
the Executive for and in time for the holding of the second and
each succeeding triennial general election for the House of Representatives.
(at p29)
54. Section 27 contemplates that the ordinary general election for the House
of Representatives will take place in each three years. The Constitution, in
my opinion, requires the determination of the number of members to be chosen
in the State should be kept up-to-date according
to the latest statistics in
relation to ordinary or regular general elections for the House of
Representatives. Thus I conclude
that the expression "whenever necessary" was
introduced to indicate that course. (at p29)
55. Of course, by taking the view which I have favoured, the number of
members to be chosen in the several States would necessarily
be determined
every three years. That does not mean that those numbers would be changed
every three years. But the need to make
a determination during each three
years will necessitate, in my opinion, a recasting of the Electoral Act so as
to make it certain
whenever an alteration is made in the number of members of
the House of Representatives to be chosen in
any State the resultant
redistribution
of the electoral divisions in that State will be made in time
for one in the ordinary general
election. (at p29)
56. It seems to me that there is no need for any such activity in the case of
a by-election. Such an election is to provide a substitute
for a member whose
seat for one reason or another has been vacated. Nor can it be necessary to
make a determination for a "snap"
election whether of the House of
Representatives alone or for that House after a double dissolution; that is to
say, for a general
election for the House of Representatives which is not held
in the ordinary course at or towards the expiry of a three year term.
It is
only in respect of a general election for the House of Representatives
rendered necessary by the effluxion of the term of
three years that, in my
opinion, it becomes necessary to redetermine the appropriate number of members
to be chosen in the several
States. In my opinion, it would be quite
impractical for the quota to be utilized to produce the number of members to
be chosen
in the several States and for the necessary adjustments to be made
in the distribution of the States into divisions from the time
the House is
dissolved before the expiry of the three years and in time for the
consequential general election. Of course, it is
to be observed that s. 12
provides that allocation of the number of members to be chosen in any State to
be effective for any general
election subsequent to
the determination of the
number of members so to be chosen. None the less, I do not construe the words
"whenever
necessary" as doing
more than requiring the true numbers of members
to be chosen to be effectively available for use in an ordinary
triennial
general
election. By an ordinary triennial general election, I mean to
include an election held at or towards the end
of the three year
period spoken
of in s. 28 and to exclude elections which are brought on by a dissolution
unrelated to that period.
(at p30)
57. There is, clearly, no obligation on the Parliament "otherwise to
provide". But if the Parliament attempts otherwise to provide,
it must do so
by a law which is valid. Its validity will depend upon whether or not it is
an exercise of the legislative power attracted
by s. 51(xxxvi.) and the terms
of s. 24 of the Constitution. (at p30)
58. Now, there can be no cavil, in my opinion, at the manner which the
Representation Act provides for the determination of the
number of members to
be chosen for the several States. Indeed, except for variation in the
consequence of a remainder after division
of the population figures by the
quota, the manner provided by the Representation Act is substantially the same
as that for which
the second paragraph of s. 24 provides. But objection is
raised that the Representation Act does not ensure that the statutory manner
of determining the number of members, though it purports to displace the
constitutional manner of so doing it, will be available
for use before and in
time for the holding of an ordinary general election for members of the House
of Representatives. This objection
is supported by reference to the terms of
s. 12(a) of the Representation Act. It provides:
"When in pursuance of a certificate under this Act anOf course, not to make the determination of the number of members effective until the States have been redistributed into divisions is quite a sensible and practical provision in cases where that determination results in a change in the number of members to be chosen in any State. (at p31)
alteration takes place in the number of Members of the House
of Representatives to be chosen in any State the alteration
shall not affect any election held before the State has been
redistributed into electoral divisions pursuant to the certificate;
but shall affect any general election after such redistribution."
59. If that distribution of the States into divisions was certain to take
place in time for an ordinary general election of the
House of Representatives
I would see no ground on which it could be said that the Representation Act
was not a valid exercise of
the legislative power to which I have been
referring. But as the determination of the number of members to be chosen in
the several
States or in any particular State or States is made to depend upon
a redistribution of the States or of a State into electoral divisions,
it is
essential to observe that the only statutory provisions for such a
redistribution is in Pt III of the Electoral Act. That
part provides for the
distribution into electoral divisions of the State for the purpose of the
election of members of the
House
of Representatives. Distribution
Commissioners are appointed and directions are given to them as to the way in
which they will
prepare
to make and make a report on the distribution of the
State into divisions. As I have earlier said I am unable to hold that
anything
in or omitted from its ss. 15 to 23 makes the Electoral Act invalid. But in
relation to the necessity for the distribution of the
members amongst the
States to be made in time for an ordinary
general election a different problem
arises. Will the redistribution
under Pt III of the Electoral Act take place
so as certainly to permit the determination of the number of members effected
pursuant
to s. 10, and notified under s. 11 of the Representation Act, to be
operative and effective "whenever necessary"? (at p31)
60. Section 24 of the Electoral Act makes the power of the Governor-General
to proclaim the boundaries of the divisions into which
the several States, or
a State shall
be distributed dependent upon the approval of both Houses of the
Parliament. So far as the
validity of the Electoral Act in providing for the
distribution of the States into divisions is concerned and apart from any
question
connected with the validity
of the Representation Act there is, in my
opinion, no objection to the distribution being dependent on
the approval of
the Parliament
and upon the proclamation of the Governor-General. But neither
the approval of the Parliament nor
the proclamation by the Governor-General
according to the provisions of ss. 24 and 25 need occur in time for the
holding of an ordinary
general election or for that matter
at all. Parliament
is not required to approve any proposed distribution nor is the
Governor-General
required to declare the approved
distribution. Section 25(2)
gives power to the Governor-General to make a proclamation giving effect
to
the distribution of the States
into divisions of any particular State into
divisions whenever an alteration is made in the number
of members of the House
of Representatives
to be elected for the State. But it is not provided that
the proclamation shall be made.
Thus even if the Parliament should approve
the distribution of the States or of any particular State into divisions, the
distribution
will not necessarily become effective
by proclamation by the
Governor-General. (at p32)
61. It, therefore, seems to me that the Representation Act in making the
effectiveness of the determination of the number of members
to be chosen in
the several States depend upon the census and the redistribution of the States
or of any particular State into divisions,
fails to provide that there shall
be a determination of the number of members to be chosen for the House of
Representatives in the
several States in proportion to their respective
population whenever it is necessary so to do, which, in my opinion, means in
time
for an ordinary general election of the House of Representatives held in
the third year after the commencement of the Parliament.
In my opinion, for
that reason the Representation Act so long as ss. 3, 4 and 12 of that Act and
ss. 24 and 25 of the Electoral Act
remain in their present form, is not a
valid exercise of the legislative power of the Parliament given by s.
51(xxxvi.) and s. 24 of the Constitution. (at p32)
62. Having regard to the terms of s. 10(b) of the Representation Act in
providing that an additional member shall be chosen for
a State in respect of
which the division of the quota into its population leaves a remainder, it
would seem less likely, than it
might have been under the use of the
constitutional formula, that there would be a need to redistribute the States
into divisions
with any frequency. I see no reason to think that a system of
triennial determination of the number of members to be chosen in the
several
States with a consequential need on some occasions to make a new distribution
of a State or of States into electoral divisions
is impractical or
particularly onerous. But, in any case, whatever the inconvenience, it seems
to me the Constitution does contemplate that the determination of the number
of members of the House of Representatives amongst the States or the several
States shall be kept up-to-date. A consequence of that is that the
distribution of the States into divisions must also be kept up-to-date
but, of
course, as I have indicated, not in order to make the divisions equal in the
number of people within them but simply so that
the changes in the number of
members to be chosen in the several States can be made electorally effective.
(at p33)
63. To sum up my views in these suits brought to test the validity of parts
of the Electoral Act and parts of the Representation
Act:
1. There is, in my opinion, no constitutional guarantee that the electoral
divisions in the States will comprise an equal number
of people or an equal
number of electors: there is not in the terms of the plaintiffs' submission a
guarantee of "practical equality"
in the numbers of people or of electors
comprised in the electoral divisions.
2. There is no constitutional guarantee of equality in the voting value or
weight of each vote cast in an election for the House
of Representatives. A
provision in an Electoral Act of a State or of the Commonwealth, which allows
of the consideration of matters
such as those set out in s. 19 of the
Electoral Act when a State is being distributed into electoral divisions, does
not invalidate
such an Act; nor does a provision that there may
be a tolerance
expressed as a percentage in the comparative number of people or
of electors
comprised in a division.
3. The Electoral Act is not invalid, and, in particular, s. 19 thereof is
not invalid. The electoral divisions created in pursuance
of the Electoral
Act are not invalidly created.
4. The Constitution does require that, in case the Parliament has not
otherwise provided within the meaning of s. 24 of the Constitution, a quota be
ascertained and applied in time for use in connexion with an ordinary general
election for the House of Representatives
at, or immediately before, the
expiry of three years from the first meeting of the House of Representatives.
5. The legislative power of the Parliament derived from s. 51 (xxxvi.) and
s. 24 is to provide a manner of determining the number of members chosen in
the several States in proportion to the population of the respective
States,
such manner to be available for use "whenever necessary". It is for the Court
and not for the Parliament to determine the
meaning of the expression
"whenever necessary" and if the occasion for making the determination is a
matter of dispute and must be
decided in point of fact, it will be for the
Court to decide that fact. The expression "whenever necessary" is related to
the holding
of an ordinary general election and not to changes in population.
In my opinion, it calls for a determination to be made in each
triennial
parliamentary period and in time for use in an ordinary general election for
the House of Representatives, but not for
use in a by-election or in a general
election held upon a dissolution of the House before the expiry of the said
period of three
years, whether that election be for the House alone or be
contemporaneous with an election for the Senate.
6. The validity of an Act passed in exercise of this legislative power will
be determined as in the case of any other legislative
act of the Parliament in
respect of a subject matter committed to it by the Constitution: but the
subject matter, properly understood, derived from s. 24, does require the
substituted manner of determination both to be for the purpose of determining
the number of members proportionately
to population and to be available
whenever necessary.
7. The Representation Act would not be invalid in having failed to provide
a manner of determining the number of members. Sections
10 and 11 in
themselves would be valid but ss. 3 and 4 tie the Act to the census, and s.
12(a), which makes the operation of the
determination of the number of members
to depend upon the distribution of the States into electoral divisions, there
being no legislative
provision which ensures such a distribution renders the
Act as a whole invalid as not providing for the determination to be effective
and available.
8. The Electoral Act does not ensure that the States will be distributed
into electorates at any particular time or at all: see
ss. 24 and 25 of that
Act. It will not be possible, in any case in which there is an allocation of
the number of members to be chosen
in a State,
to treat an existing
distribution, that is to say, a distribution existing prior to the time of the
certificate granted
under s.
11 of the Representation Act, as satisfying the
terms of s. 12(a) which speaks of a redistribution.
9. Whilst ss. 3, 4 and 12(a) of the Representation Act and ss. 24 and 25 of
the Electoral Act remain in their present form, the
Representation Act is not
a valid law by which the Parliament otherwise provides within the meaning
of
the second paragraph of s. 24 of the Constitution.
10. Section 29 of the Constitution makes provision in case the State or the
Parliament has not made a law otherwise providing for the distribution of the
State or of
the States into electoral divisions. In the absence of such a
distribution, each State shall be one electorate. This may result
in
practical difficulties but the constitutional provision would have to be
regarded.
11. The use of the then existing electoral divisions and of the then
existing determination of the number of members of the House
of
Representatives chosen by the several States did not invalidate any election
of members of the House of Representatives which
has already taken place; nor
bring into doubt the validity of the membership of the Parliament. (at p35)
McTIERNAN AND JACOBS JJ. Section 24 of the Constitution provides that the
House of Representatives shall be composed of members directly chosen by the
people of the Commonwealth. The rest
of the section provides for the number
of members in three ways. First, it provides that the number of members shall
be, as nearly
as practicable, twice the number of the senators. Secondly, it
provides that the number of members chosen in the several States
shall be in
proportion to the respective numbers of their people. Thirdly, it provides
that five members at least shall be chosen
in each original State. (at p35)
2. The section also lays down a manner in which until Parliament otherwise
provides the number of members shall be determined whenever
necessary. This
provision is subject to change by the Parliament pursuant to the power
contained in s. 51(xxxvi.), but the other three provisions are constitutional
requirements or injunctions. They may be described as constitutional
guarantees
but there is no particular need so to describe them. (at p35)
3. The primary submission on behalf of the plaintiffs has been that members
are not directly chosen by the people of the Commonwealth
unless any law
passed pursuant to s. 29 and by virtue of s. 51(xxxvi.) ensures that every
division in a State for which a member or members may be chosen is as nearly
as practicable equal in number of
people to every other division in the State.
It is said that that is the meaning of the words "chosen by the people" in s.
24. We do not think that any such exact content can by definition be given to
these words. The words express a distinct concept or notion
capable of
application as a constitutional requirement but they are not words which can
be re-written or paraphrased in such an exact
manner. The words embrace the
notion of equality of numbers in so far as the choice of members must be by
the people of the Commonwealth.
Inequality of distribution of numbers between
districts or divisions in respect of which members are chosen is one factor
which
may lead to a choice on the basis of such an unequal distribution being
unable to be described as a choice by the people of the Commonwealth.
(at
p35)
4. The people is the body of subjects of the Crown inhabiting the
Commonwealth regarded collectively as a unity or whole, and the
sum of those
subjects regarded individually. To say that "people" means "electors" or
"enfranchised subjects" is erroneous because
it takes account only of the
enfranchised subjects regarded individually but no account of the body of
subjects regarded collectively
as a unity. It is an accurate description only
so long as the franchise is wide enough to satisfy the description "popular"
but
it would be nonsense to speak of a choice by a few who happened to be
enfranchised (the foundation of an oligarchy) as a choice by
the people (the
foundation of a democracy). Since the substitution of the word "electors" for
the word "people" is only valid if
certain circumstances exist, there is no
point in the substitution. (at p36)
5. Nevertheless, it is important to state that "chosen by the people" does
not mean "chosen by all the persons individually who
regarded collectively are
the people". If it meant that, perhaps a unanimous choice of all would be
required and that cannot be
correct; but without going that far it would mean
that all subjects inhabiting the Commonwealth would need to participate in the
choice of members and a choice by any number of persons less than the sum of
the individuals would not be a choice by the people.
That is not intended.
Common sense tells us that babes and young children at least cannot
participate in the choice and the Constitution in, e.g., ss. 30, 31 and 41
envisages that all persons need not participate or be eligible to participate
in the choosing. However, to argue from this that "people"
merely means
"electors" is to subtract an essential feature from the constitutional
requirement if thereupon it is argued that s. 24 in its opening words says no
more than that choosing of members shall be by direct vote of electors. The
section says much more
than this. (at p36)
6. The words "chosen by the people of the Commonwealth" fall to be applied to
different circumstances at different times and at
any particular time the
facts and circumstances may show that some or all members are not, or would
not in the event of an election,
be chosen by the people within the meaning of
these words in s. 24. At some point choice by electors could cease to be able
to be described as a choice by the people of the Commonwealth. It is a
question
of degree. It cannot be determined in the abstract. It depends in
part upon the common understanding of the time on those who must
be eligible
to vote before a member can be described as chosen by the people of the
Commonwealth. For instance, the long established
universal adult suffrage may
now be recognized as a fact and as a result it is doubtful whether, subject to
the particular provision
in s. 30, anything less than this could be described
as a choice by the people. (at p36)
7. But there is nothing in our history and our development as a nation which
would require that before a member be described as
chosen by the people of the
Commonwealth absolute or as nearly as practicable absolute equality of numbers
of the people exist in
every constituted electoral district in a State. Even
though the notion of equality is present the matter remains one of degree.
(at
p37)
8. Pursuant to s. 29 and s. 51(xxxvi.), the Parliament has made laws for
determining the divisions in each State for which members of the House of
Representatives shall
be chosen and has provided that there shall be one
member chosen for each division. Part III of the Commonwealth Electoral Act
1918-1975 (Cth) is the relevant provision. Sections 18, 19, 24 and 25 are
particularly important.
Section 18 provides for the ascertainment of a quota
for each district based on the whole number of electors in each State. It
is
said that this is not permissible because the quota should be based on the
whole number of people in each State. We do not agree.
There is now
universal suffrage of all persons not under eighteen years of age who have
lived in Australia for six months continuously
and who are British subjects
(s. 39). The exceptions in s. 39(4) and (5) and the specification of a
minimum age of eighteen years
do not take from those electors the quality
whereby their choice can be described as a choice by the people regarded
collectively.
A quota of electors is in these circumstances a sound basis for
electoral division. (at p37)
9. Section 19 envisages a degree of inequality in electoral districts in that
the Distribution Commissioners are required to give
due consideration, in
relation to each proposed division, to a number of factors and circumstances
and may in that consideration
depart from the equality which the quota
represents; but the departure cannot be more than one-tenth either side of the
quota. Equality
is thus the objective to be sought but the need for some
departure therefrom is recognized. We see no inconsistency between these
provisions and the constitutional requirement in s. 24. Indeed, some of the
requirements are necessary in order to make clear the
duty to avoid any
unnatural divisions of the kind which are found in gerrymandering, divisions
which themselves could be inconsistent
with the constitutional requirement. A
margin of one-tenth is not one which in these circumstances takes away the
quality of choice
which s. 24 of the Constitution enjoins. (at p37)
10. By s. 24 of the Commonwealth Electoral Act approval of any distribution
or redistribution (s.25) is required by both Houses
of Parliament before the
boundaries of the divisions may be declared by proclamation. The lack of
approval
by either House of Parliament
or the absence of a proclamation will
prevent the new divisions taking effect. The old divisions will
continue in
effect (s.24(1)).
Such a provision cannot operate to override the s. 24
requirement, and an election under the old divisions will only be in
accordance
with the constitutional requirement if it can be
said, and at the
time of the election still be said, that members chosen in those
divisions are
chosen by the people of the Commonwealth.
If it could not be so said, then the
provision in s. 24 (1) of the Act could
not operate. (at p38)
11. We do not say that s. 24(1) is invalid in the way that a law which lacks
subject matter of Commonwealth power is ultra vires
and is invalid. We do not
think
that it is correct to transfer into the context with which we are now
dealing those tests of invalidity
which have been developed
in different
contexts in the Constitution. Though it is ordinarily the case that a law
which may in its terms operate beyond power upon a certain act matter or thing
and which
cannot as a matter of construction be found not to be intended to
operate upon that act matter or thing is wholly invalid, that is
not the case
where a law of the kind now being considered, otherwise being valid, may in
particular circumstances operate so that
in those circumstances there would be
a transgression of this kind of constitutional injunction. In such a case the
law is within
power but is incapable of operating in those circumstances. The
Parliament cannot provide that it will operate when those circumstances
exist,
and since it cannot do so and since there are no laws of the States still in
existence under s. 29 each State would need to be treated as one electorate.
The position is not dissimilar to that which arises when a subject matter
of
power is expressed in terms of purpose, e.g. the defence power in s. 51 (vi.).
A law, previously valid, may become incapable of validly operating because of
changed circumstances. Cf. Australian Textiles
Pty. Ltd. v. The Commonwealth,
per Dixon J. [1945] HCA 35; (1945) 71 CLR 161, at pp 180-181 . (at p38)
12. We therefore conclude that none of the impugned sections of the
Commonwealth Electoral Act is invalid but that no provision
of that Act can
validly operate in so far as by such an operation members of the House of
Representatives
would not on a general
election be chosen by the people of the
Commonwealth. We would make a declaration accordingly. We now consider
whether on the facts
alleged the choosing of members by existing electoral
divisions would infringe the constitutional injunction.
The States the
subject
of the respective claims are South Australia, Victoria and Queensland.
That in each of them the divisions
are not as nearly as practicable
equal is
not an infringement. However, the length of time since there has been a
redistribution
under s. 25 in each State has resulted
in substantial
inequalities in the number of people in the divisions in the respective
States. We have
come to the conclusion that
although the inequalities are
serious they are not in any State so great that an election conducted by
those
divisions would not
be a choosing of members by the people. In South
Australia the division with the largest number of electors
has 1.7 times the
number
of the division with the smallest number of electors. The division
largest in number has 33 1/3 per cent
more electors than the
quota under s. 19
and the smallest has 22 per cent fewer electors than the quota. In Queensland
the division largest in number of
electors in May
1974 had almost twice the
number of electors as the division with the smallest number and had 38.5 per
cent more
electors than the
quota under s. 19. In Victoria the division with
the largest number of electors had 1.8 times the number of the
division with
the smallest number of
electors. Though these variations substantially exceed
the variations envisaged by s. 19 both
before and after the 1973 amendment, we
do not consider that they are such that a choosing of members by those
divisions is
not a
choosing of members by the people within the meaning of s.
24 of the Constitution. There is therefore nothing unconstitutional in s.
24(1) of the Act operating to continue the existing divisions until on a
redistribution new boundaries are declared by proclamation. (at
p39)
13. On the words of Art. I s. 2 of the Constitution of the United States of
America the Supreme Court has determined that "chosen ... by the people of the
several States" requires that
as nearly as practicable one man's vote in a
congressional election must be worth as much as another's: Wesberry v.
Sanders [1964] USSC 31; (1964)
376 US 1 (11 Law Ed 2d 481) . The facts were that Georgia's
Fifth Congressional District, one of ten, had a population of
823,680.
The
average population of the ten districts was 394,312 and one district had a
population of only 272,154. The district
was thus
"grossly out of balance"
with other congressional districts of Georgia (per Clark J. (1964) 376 US, at
p 19 (11 Law Ed 2d,
at p 493)
). (at p39)
14. Although the actual result in Wesberry v. Sanders may well be the result
which would follow from the application to those facts
of the principle which
we have earlier suggested, the requirement in the reasoning of the majority
that there be "as near as practicable"
equality postulates a degree of
equality which goes beyond what we would accept as applicable to our
Constitution. The requirement of equality has been carried in the United
States to the extent that variations from equality of congressional
districts
of three per cent more or less than the mathematical ideal have been held
unconstitutional, certainly unless there had
been an effort in good faith to
achieve precise mathematical equality: Kirkpatrick v. Preisler [1969] USSC 112; (1969) 394 US
526 (22 Law Ed 2d 519)
. In White v. Weiser [1973] USSC 153; (1973) 412 US 783 (37 Law Ed 2d
335) a test was applied even stricter than that applied in Kirkpatrick v.
Preisler. It may be
that the strictness of the United States test has
developed from the presence in that Constitution of the Fourteenth Amendment.
But we cannot accept that only by compliance with such a test can the words of
our Constitution "chosen by the people of the Commonwealth" be satisfied. (at
p40)
15. By amendment allowed at the hearing the plaintiffs other than the
Attorney-General of the Commonwealth at the relation of Brian
John McKinlay
claim a declaration that the Representation Act 1905-1973 (Cth) in so far as
it fails to require the number of members
to be chosen in the Several States
to be in proportion to the respective numbers of their people is invalid.
Section 12 is the section
of particular importance.
"12. When in pursuance of a certificate under this Act anp40)
alteration takes place in the number of Members of the
House of Representatives to be chosen in any State the alteration
shall not affect -
(a) any election held before the State has been redistributed
into electoral divisions pursuant to the certificate;
nor
(b) any election to fill a vacancy in a House of Representatives
elected before such redistribution,
but shall affect any general election after such redistribution." (at
16. Neither this section nor s. 24 of the Commonwealth Electoral Act can
operate contrary to the constitutional requirement in s. 24 of the
Constitution that subject to the final proviso in the section the number of
members chosen in the several States shall be in proportion to the
respective
numbers of their people. Section 12 may validly operate in those
circumstances where its operation does not infringe the constitutional
requirement. The Parliament
cannot validly provide otherwise. Where the
House of Representatives is not composed of members chosen in the several
States in
proportion to the respective numbers of their people (subject to
there being five members at least chosen in each original State)
that House is
not composed in accordance with the Constitution. It must be borne in mind,
however, that the manner of ascertainment whenever necessary of the number of
members so to be chosen
is a matter upon which the Parliament may make laws.
This power must be related to the power in s. 25, subject to the Constitution,
to increase or diminish the number of members of the House of Representatives.
Section 24 provides a manner until Parliament otherwise provides. It states
that the number of people of the Commonwealth shall be as shown
by the latest
statistics of the Commonwealth. The Parliament may provide how often the
statistics are compiled, but such a provision
is subject to the constitutional
requirement that the proportion be maintained. However, this must be given a
practical operation
and it appears to us that a provision which allows the
determination of the proportion on the basis of a five-yearly census is a
valid law with respect to the manner in which the number of members chosen in
the respective States shall be determined and will
validly operate provided
that the census continues to be taken at five-yearly intervals. Nevertheless,
a law which having adopted
such a census as the manner of determining the
number of people failed to give effect to that census with the result that
members
were not chosen in the required proportions could not so operate
constitutionally. (at p41)
17. There is no allegation that on the basis of the census taken on or about
27th September 1972 the proportions between the States
are now otherwise than
required by s. 24. We are therefore of the opinion that no relief need be
granted beyond a declaration that s. 12 of the Representation Act 1905-1973
cannot validly operate in so far as by such an operation the number of members
chosen in the several States would not be in proportion
to the respective
numbers of their people. (at p41)
18. It should be mentioned that the question of the justiciability of the
claims has been argued. We express our opinion that the
claims are
justiciable and that there is no bar on this ground to the grant of
appropriate relief by this Court. The subject matter
is not the internal
proceedings of the House of Representatives or the Senate, a matter which is
not subject to judicial scrutiny.
(See however Cormack v. Cope [1974] HCA 28; (1974) 131 CLR
432 and the Petroleum and Minerals Authority Case [1975] HCA 39; (1975)
134 CLR 81 for
exceptions
to this principle.) The right of an individual to vote at an
election is a right protected by
the common
law and raises justiciable
issues:
Ashby v. White [1790] EngR 55; (1703) 2 Ld Raym 938 (92 ER 126) . The propriety of the
conduct of an election
is a matter of common law
in the absence of a statute:
Bradford Election Petition No. 2 (1869) 19 LT 723, at p 725 ; Lichfield
Election
Petition (1869) 20
LT 11 ; Halsbury's Laws of England,
3rd ed., vol.
14, pp. 236-237, and further cases there cited. The House of
Commons after
Goodwin
v. Fortescue (1604) 2 ST 91 established
that it rather than the King
in Council was the Court charged with
determination of the issue
and s. 47 of
our Constitution maintains that right of the respective Houses of Parliament
in respect of their own members. But the question is a justiciable one,
not a
political one. See Holdsworth, History of English Law, 2nd ed. (1937), vol.
VI, pp. 95-96. (at p42)
19. The question which now arises is not one falling to be decided by either
House of Parliament under s. 47. It nevertheless retains
its character of
justiciability because of its subject matter. An example of the issue being
treated as
justiciable is found in
Attorney-General (Prince Edward Island) v.
Attorney-General (Canada) (1905) AC 37 . The dispute between
the Province and
the Dominion
was in the context of the British North American Act 1867 (Imp.),
s. 51 which dealt with the proportionate
representation of the
provinces in
the House of Commons of Canada. It was decided on a case submitted by Order
in Council asking
an answer to certain
questions. But the procedure of
submission to the Court - a procedure which has been found not to be available
under our Constitution: In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257
- does not touch upon the justiciability of the subject matter.
It was not
the availability of that kind of proceedings
but the nature of the subject
matter which made the substantive issue one
proper to
be determined by the
Supreme Court of Canada
and, on appeal, by the Judicial Committee of the Privy
Council. The present
proceedings
are, it is conceded, brought by persons
entitled
to bring them and all that is submitted is that the subject matter is
not one which
can be entertained by this Court. We regard
the last-mentioned
case as authority against this submission and generally
for the reasons
which
we have stated we regard the submission
as ill-founded. (at p42)
20. We would therefore overrule the demurrers and in all three cases declare
that ss. 24 and 25 of the Commonwealth Electoral Act
1918-1975 do not validly
operate so that by such an operation members of the House of Representatives
on a general election would
not be chosen by the people of the Commonwealth
and, further, in the cases of South Australia v. The Commonwealth and Lawlor
v. The
Commonwealth that s. 12(a) of the Representation Act 1905-1973 does not
validly operate so that by such an operation the number of
members chosen in
the several States would not be in proportion to the respective numbers of
their people. (at p43)
GIBBS J. The first question that falls for decision on these three
demurrers is whether s. 24 of the Constitution requires that when a State is
distributed into electoral divisions for which members of the House of
Representatives are to be chosen
each division shall, so far as is
practicable, contain the same number of people, or alternatively the same
number of electors, as
any other division. Section 24 provides as follows:
"The House of Representatives shall be composed of members
directly chosen by the people of the Commonwealth,
and the number of such members shall be, as nearly as practicable,
twice the number of the senators.
The number of members chosen in the several States shall
be in proportion to the respective numbers of their people,
and shall, until the Parliament otherwise provides, be determined,
whenever necessary, in the following manner:-
(i.) A quota shall be ascertained by dividing the number
of the people of the Commonwealth, as shown by the
latest statistics of the Commonwealth, by twice the
number of the senators:
(ii.) The number of members to be chosen in each State
shall be determined by dividing the number of people
of the State, as shown by the latest statistics of the
Commonwealth, by the quota; and if on such division
there is a remainder greater than one-half of the
quota, one more member shall be chosen in the State.
But notwithstanding anything in this section, five members
at least shall be chosen in each Original State." (at p43)
2. If the words of s. 24 are read in their natural sense, without seeking for
implications or hidden meanings, they appear to have nothing whatever to do
with the determination of electoral divisions within a State. The plaintiffs
rest their submission on the opening words of the section.
Those words
require the House of Representatives to be "composed of members directly
chosen by the people of the Commonwealth".
It is said that the members must
be chosen by, or perhaps more precisely by electors representing, all the
people, and that it must
be implied or inferred that all people are to be
placed on the same footing, so that each member will represent the same number
of
people or at least of electors. Further, it is said that the section is
intended to ensure that the House of Representatives is
elected on democratic
principles, and that such principles require that electoral divisions should
contain equal numbers of people
or of electors. We have to decide whether s.
24, properly interpreted, does have this effect. If it does not, we are not
justified in importing new requirements into it simply because,
as a matter of
policy, they may seem to be desirable. Our duty is to declare the law as
enacted in the Constitution and not to add to its provisions new doctrines
which may happen to conform to our own prepossessions. (at p44)
3. The obvious purpose of the opening words of s. 24 is to ensure that
members of the House of Representatives are chosen directly by popular vote,
and not by some indirect means, such
as by the Parliament or Executive
Government of a State, or by an electoral college. When the section says that
members shall be
chosen "by the people" it cannot mean by all the people of
the Commonwealth - obviously it means by those people who are qualified
to
vote. It would appear that "people" in the second paragraph of s. 24 does
mean all the people, and not merely the electors, and if no more appeared this
might suggest that the same word when used in
the first paragraph of the
section has the same meaning. To give it that meaning would, however, lead to
a manifest absurdity - it
would mean that babes in arms, lunatics and
criminals were entitled to vote. It clearly appears from other sections of
the Constitution - ss. 25, 30, 41 and 128 - that it was recognized that people
might constitutionally be denied the franchise on the ground of race, sex or
lack of property
- the Constitution goes no further than to ensure that an
adult who has the right to vote at elections for the more numerous House of
the Parliament
of a State shall not be prevented by a law of the Commonwealth
from voting at elections for either House of the Parliament of the
Commonwealth: s. 41. As was pointed out in King v. Jones [1972] HCA 44; (1972) 128 CLR 221,
at pp 229-230, 260, 267 , at the time of Federation not
all adults were
under
State law entitled to the franchise.
The very fact that the word "people" is
used in the opening words of
s. 24 (and similarly in s. 7) whereas the word
"electors" is used in other sections - e.g. ss. 8, 30 and 128 - shows that
when the framers of the Constitution came to draft s. 24 they were concerned
with the manner of choice rather than with the people who were to choose.
However, even if, contrary to what
I have said, "people" in s. 24 did mean all
people, the further construction that the plaintiffs seek to put on the
section could not be justified. The section
says nothing in terms as to the
weight to be given to the votes of those people who cast them. It does not
mention equality. Moreover,
the concluding words of s. 24, by providing a
minimum number of members for each original State, create an exception to the
rule that the number of members chosen
in the several States shall be in
proportion to the respective numbers of their people, and have the result that
so long as the population
of any State is so small that its representation, if
fixed proportionately, would be less than five, it will be impossible to
achieve
equality in the number of people or of electors in electoral divisions
throughout Australia. (at p45)
4. The argument that equality of numbers within electoral divisions is an
essential concomitant of a democratic system, so that
in any constitution
framed upon democratic principles it must have been intended to guarantee that
electorates would so far as practicable
contain an equal number of people or
of electors, is simply incorrect - it begs the question and ignores history.
Neither in 1901
nor subsequently has there been a universal recognition of the
so-called principle that electorates should be numerically equal.
Frankfurter
J., in his powerful dissenting judgment in Baker v. Carr [1962] USSC 48; (1962) 369 US 186, at
pp 302-307 (7 Law Ed 2d 663, at pp 735-738)
, shows that in the United Kingdom
after the Reform Acts there
remained a substantial electoral inequality and
that even after the
Redistribution Act of 1885 there were still ratios of
inequality
of as much as 7 to 1, which had increased to 15 to 1 by 1912.
Under
legislation since enacted (the House of Commons (Redistribution
of
Seats) Act 1949 and the House of Commons (Redistribution of Seats)
Act 1958),
although the electorate of any constituency recommended
for redistribution by
a boundary commission is to be as near the
electoral quota as is practicable,
the commission is also enjoined
to take account of local authority boundaries,
so that although
equality of numbers is now an important matter in fixing
electoral
boundaries in the United Kingdom it is certainly not the only
consideration. In Australia, before 1901 there was no rule of law
that the
electoral districts within the States should have numerical
equality; in most
States the boundaries of the districts were
fixed by Parliament itself
(Constitution Act Amendment Act 1890 (Vict.),
s. 30; the Electoral Districts
Acts of 1887 and 1892 (Q.);
the Electoral Code, 1896 (S.A.), s. 12; the
Constitution Acts Amendment Act, 1899 (W.A.), s. 19, and the Electoral Act
1896 (Tas.), ss. 6-7), but in New South Wales, where the distribution
was made
by commissioners, the legislation permitted electorates to be larger or
smaller than the average quota by a considerable
margin (Parliamentary
Electorates and Elections Act of 1893 (N.S.W.), s. 17, and Act No. LXXXIV of
1900). Since that time the legislation
of most Australian States has
committed the drawing of electoral boundaries to commissioners but such
legislation commonly permits
different quotas for different parts of the State
and allows the commissioners to depart from the quota by a margin in some
cases
as great as twenty per cent: see the Parliamentary Electorates and
Elections Acts, 1913-1973 (N.S.W.); the Electoral Provinces and
Districts Act
1965 (Vict.); the Electoral Districts Act, 1971 (Q), the Electoral Districts
(Redivision) Act, 1968-1969 (S.A.) and
the Electoral Districts
Act, 1947-1965
(W.A.). No doubt most people would agree that for the healthy functioning of
a democratic
system of government it
is desirable that the electorate should
be fairly apportioned into electoral districts whose boundaries are
not
gerrymandered, that
the ballots should be secretly and honestly conducted,
that the vote should be fairly counted and that corrupt
electoral practices
should be suppressed, but opinions may well differ as to how these ideals
should be attained. The Constitution does not lay down particular guidance on
these matters; the framers of the Constitution trusted the Parliament to
legislate with respect to them if necessary, no doubt remembering that in
England, from which our system
of representative government is derived,
democracy did not need the support of a written constitution. (at p46)
5. The other provisions of s. 24 and of the Constitution generally give no
support to the plaintiffs' argument. If it had been intended to enact, as a
constitutional requirement, that each
electoral division in a State should
contain the same number of people or of electors, it would have been easy to
use words similar
to those of the second paragraph of s. 24. The power of the
Parliament to make laws for determining electoral divisions within the States
comes from ss. 29 and 51 (xxxvi.); those sections do contain one express
limitation on the power granted - that a division shall not be formed out of
parts
of different States - but say nothing on the present question. (at p46)
6. The plaintiffs were no doubt emboldened to present their argument by the
course of decisions in the United States as to the effect
of the words of Art.
1, s. 2 of the United States Constitution by which s. 24 was obviously
suggested: Wesberry v. Sanders [1964] USSC 31; (1964) 376 US 1 (11 Law Ed 2d 481) ;
Kirkpatrick v. Preisler [1969] USSC 112; (1969) 394 US 526 (22
Law Ed 2d 519) ; Wells v.
Rockefeller [1969] USSC 74; (1969) 394 US 542 (22 Law Ed 2d 535) , and White v. Weiser [1973] USSC 153; (1973)
412 US 783 (37 Law Ed 2d
335) . It is clear that the opinion of the majority
of the Court in Wesberry v. Sanders, which
was followed in later cases, was
strongly influenced by the "historical context", in the light of which it was
considered that the
Constitution must be construed (see especially (1964) 376
US, at pp 7-8, 17 (11 Law Ed 2d, at pp 486-487, 492) ) - a "context" which
Harlan J.,
who dissented, thought bore "little resemblance to the evidence
found in the pages of history" (1964) 376 US, at p 24 (11 Law Ed
2d, at p 496)
. The "history" on which the majority relied was very largely provided by
what was said in the course of debates at
the constitutional convention of
1787 and by the writings and speeches of statesmen of that time. The question
whether, in construing
the Constitution, reference may be made to the debates
at a constitutional convention, has been answered differently in the United
States and in Australia.
In the United States it has been held that such
reference may be made. However, in Australia it has been accepted that in
construing
the Constitution, as in the case of any other statute, although
regard may be had to the state of things existing when the statute was passed,
and
therefore to historical facts and to earlier legislation, it is not
permissible to consider what was said in Parliament or at a constitutional
convention by those who debated the measure, for one reason because it cannot
be certain that what any particular speaker said received
the acquiescence of
the majority of those present. In any case no suggestion has been made that
anything said at the constitutional
conventions in Australia would in the
least assist the plaintiffs in the present case. The United States decisions
have provoked
strong differences of opinion between eminent judges in the
Supreme Court of that nation. If those decisions are founded upon a
method of
constitutional construction different from that followed in this country, or
if they reflect a view "that every major social
ill ... can find its cure in
some constitutional 'principle'" (see per Harlan J. in Reynolds v. Sims [1964] USSC 202; (1964)
377 US 533, at p 624
(12 Law Ed 2d 506, at p 563) ) and were a response to the
particular needs of the United States, they
cannot assist us in the
construction
of our Constitution. I have, of course, carefully considered the
United States decisions but find nothing to persuade me that the words of s.
24 contain a rule that electoral divisions shall, as nearly as practicable, be
equal in population or electors. (at p47)
7. I therefore conclude that s. 24 does not contain the constitutional
requirement which the plaintiffs seek to discover concealed within its
language and that the
contention made by the plaintiffs that ss. 19, 24 and 25
of the Commonwealth Electoral Act 1918-1975 (Cth) contravene s. 24 and are
to
that extent invalid therefore fails. (at p48)
8. The second question in the case is whether ss. 2, 3, 4 and 12 of the
Representation Act 1905-1973 (Cth) or any of those sections
are invalid as
contravening the provisions of the second paragraph of s. 24 of the
Constitution. This question was raised in two of the cases before us by
amendments permitted to be made during the hearing. (at p48)
9. By s. 2 of the Representation Act it is provided as follows:
"For the purpose of determining the number of MembersSection 3 states that "The day on which any census of the people of the Commonwealth is taken shall be an Enumeration Day within the meaning of this Act." Section 4(1) provides as follows:
of the House of Representatives to be chosen from time to
time in the several States, the Chief Electoral Officer of the
Commonwealth shall at the times and in the manner prescribed
by this Act ascertain the numbers of the people of
the Commonwealth, and the numbers of the people of the
several States."
"The numbers of the people shall be ascertained as onBy s. 6 the Chief Electoral Officer is required, forthwith after he has ascertained the numbers of the people in accordance with the Act, to forward to the Minister a certificate in the prescribed form. A copy of that certificate is to be published in the Gazette and laid before Parliament (s. 7) and the certificate is evidence of the numbers of the people of the Commonwealth and of the several States and remains in force until superseded by another certificate (s. 8). The Chief Electoral Officer is required, immediately after the issue of the certificate, to determine the number of members of the House of Representatives to be chosen in the several States in the manner thereinafter mentioned (s. 9). Section 10 lays down the procedure by which that number is to be determined, but since no objection has been raised to the validity of that section it is not necessary to set out its provisions. After the Chief Electoral Officer has determined the number of members to be chosen in the several States, he is required forthwith to make and forward to the Minister an appropriate notification (s. 11). Section 12 provides as follows:
Enumeration Day in accordance with the following provisions: -
(a) The numbers of the people of each State, as shown by
the census, shall be taken.
...
(c) There shall be excluded from the reckoning the number
of persons who, by section twenty-five or section
one hundred and twenty-seven of the Constitution, are
required not to be counted."
"When in pursuance of a certificate under this Act anp49)
alteration takes place in the number of Members of the House
of Representatives to be chosen in any State the alteration
shall not affect -
(a) any election held before the State has been redistributed
into electoral divisions pursuant to the certificate; nor
(b) any election to fill a vacancy in a House of Representatives
elected before such redistribution,
but shall affect any general election after such redistribution." (at
10. It is first submitted on behalf of the plaintiffs that the provisions of
ss. 2, 3 and 4 of the Representation Act are bad in
so far as their effect is
that the Chief Electoral Officer is required to perform his functions only
when an enumeration day - that
is, a census day - arrives. The submission is
that under the Census and Statistics Act 1905-1973 (Cth) the coming of that
day may
be indefinitely postponed and that, accordingly, the Chief Electoral
Officer may never have to perform his duties under the Representation
Act. It
is further submitted that the provisions of s. 12 are invalid because under
that section, read in the light of ss. 24 and
25 of the Commonwealth Electoral
Act, a determination by the Chief Electoral Officer of the number of members
to be chosen in the
States need never be given effect. By s. 25 of the
Commonwealth Electoral Act it is provided, inter alia:
"(1) A re-distribution of any State into Divisions shall beThis section leaves it to the discretion of the Governor-General to determine whether and when a proclamation shall be made. If he makes a proclamation, the procedure laid down in the earlier sections of the Commonwealth Electoral Act comes into operation. That procedure itself depends, for its completion, upon both Houses of the Parliament passing a resolution approving of the proposed distribution and the Governor-General issuing a further proclamation - see s. 24 of the Commonwealth Electoral Act. (at p49)
made in the manner hereinbefore provided whenever directed
by the Governor-General by proclamation.
(2) Such proclamation may be made save
(a) whenever an alteration is made in the number of
Members of the House of Representatives to be
elected for the State;
........."
11. The second paragraph of s. 24 of the Constitution commences by laying
down what appears to be an unqualified rule, namely, "The number of members
chosen in the several States shall
be in proportion to the respective numbers
of their people". "Until the Parliament otherwise provides", the
determination is to
be made, "whenever necessary", in the manner set out in
the section. The words "until the Parliament otherwise provides", in
conjunction
with s. 51 (xxxvi.), enable the Parliament to make laws with
respect to the manner in which the number of members chosen in the several
States
is to be determined. If the section is construed grammatically, the
words "whenever necessary" govern the manner by which the determination
is to
be made if Parliament has not otherwise provided; they do not directly limit
the power of the Parliament. That power is, however,
subject to the command
expressed in the opening words of the section. Although those words are on
their face absolute, there are
other constitutional requirements, equally
absolute and no less important, that must also be observed. "Every House of
Representatives
shall continue for three years from the first meeting of the
House, and no longer, but may be sooner dissolved by the Governor-General":
s. 28. Writs for general elections of members of the House of Representatives
"shall be issued within ten days from the expiry of a House
of Representatives
or from the proclamation of a dissolution thereof": s. 32. These
requirements lie at the very heart of our system of government, and in the
event of a conflict would necessarily prevail over
s. 24. For example, an
election could not be postponed, when otherwise necessary, simply because the
number of members to be chosen in
the several States had not been determined
on the basis of the most recent reliable figures. The apparently absolute
words of s. 24 may therefore need some qualification to enable them to work in
harmony with the rest of the Constitution. (at p50)
12. When the Parliament exercises its power to provide for the manner in
which a determination of the number of members to be chosen
in the several
States is made under s. 24, there are a number of practical questions to which
it must direct its attention. One question, which does not call for any
decision
in the present case having regard to the argument submitted, is how
the proportion mentioned in s. 24 is to be arrived at once the respective
numbers of the people of the States have been ascertained. Quick and Garran
in their Annotated
Constitution of the Australian Commonwealth (1901), at p.
453, quote a passage from a report furnished by Daniel Webster to the United
States
Senate in 1832 which suggests two different ways in which this might be
done - one being that which was adopted by s. 24 itself as the method to be
used until the Parliament otherwise provides. A third method - a variant of
that stated in s. 24 but allowing an extra member to any State if, when the
division is carried out, there is a remainder, even though it is less than
one-half of the quota - has been adopted by s. 10 of the Representation Act,
whose validity as I have said is not questioned. (at
p51)
13. Two further questions that will arise for the consideration of the
Parliament are how frequently the determination is to be
made, and how the
respective numbers of the people of the States are to be ascertained. The
Representation Act, in its present form,
answers these questions by relating
both the making of the determination and the ascertainment of the numbers to
the census. It
is understandable that the Parliament should have wished to
ensure that only the most reliable statistics are used, and that the
figures
provided by the census should have been taken as a basis. However, it cannot
have been intended by the framers of the Constitution that it should be
mandatory to use the census for this purpose, for there is no constitutional
requirement to hold a census. Under
legislation now in force it is provided
that the census is to be taken "in the year One thousand nine hundred and
eleven and in every
tenth year thereafter or at such other time as is
prescribed": s. 8 of the Census and Statistics Act 1905-1973 (Cth). Although
the
regulation-making power has in recent years been used to bring about a
census every five, instead of every ten, years, it would of
course be lawful
to prescribe that the census should be taken much less frequently. The
relevant words of s. 24 of the Constitution require that the "number of
members chosen in the several States shall be" in the requisite proportion.
These words naturally suggest
that the proportion is to exist on each occasion
when the members are chosen, i.e. each time an election is held. To ensure
that
this requirement is observed, it appears necessary that a new
determination should be made with a reasonably short time before every
election. Of course, the proportion may remain the same over a long period,
but it can only be determined whether at any given election
any State should
have more or less members than before by ascertaining the respective numbers
of the people in the several States
and making the apportionment at a time not
far removed from that election. This would present no difficulty if the House
of Representatives
continued for its normal term of about three years. The
making of a determination could be set in train at a fixed time after the
first meeting of any Parliament, so that the determination would be available
for use at the next election. This would mean that
the census would not
always provide the latest reliable statistics from which to ascertain the
numbers of the people of the States.
However, the Constitution requires that
the number of members chosen should be in the correct proportion, and it does
not require that census figures should
be used. The constitutional
requirement must be given effect, notwithstanding that on some occasions
statistics other than those
provided by the census may have to be used in
ascertaining the numbers. It appears to me that laws made by the Parliament
to provide
the manner in which the number of members chosen in the several
States shall be determined cannot validly permit of any evasion of
the
requirement that a determination must be made within a reasonable time before
each election. That means that when the House
continues for its normal term,
a determination must be made during the period of three years or less for
which it continues. (at
p52)
14. However it may not be possible, in the nature of things, to ensure that a
new determination is made after one election and before
another, if the latter
follows upon a dissolution of the House which has been effected suddenly and
with little warning. This would
be so even if the question of a
redistribution of electorates within a State were ignored. A determination
under s. 24 cannot be made and put into effect overnight. When (as in the
case) the Parliament has made laws (under ss. 29 and 51 (xxxvi.)) for
determining the divisions in each State for which members of the House of
Representatives may be chosen, it will be
hardly practicable to give immediate
and automatic effect to any determination made under s. 24 which alters the
number of members to be chosen for a State. No doubt this situation could be
met by a law which provided, for example,
that when there is a change in the
number of members to be elected for any State and a redistribution of
electorates within the State
has not been made, the members shall be chosen
from the State at large. It is unnecessary to decide whether in the absence
of any
such law, s. 29 would now have a similar effect. But the Parliament is
not in my opinion bound to hold elections on so crude a basis. In giving
effect to s. 24, the fact that the Parliament has clear power under the
Constitution to divide each State into electoral divisions cannot be ignored.
It would not in my opinion be contrary to s. 24 for the Parliament to provide
that a determination under that section should not be put into effect until
the necessary redistribution
had been made, provided that it was ensured that
the redistribution would follow directly upon the determination. (at p52)
15. Consistently with the opinions I have expressed it must be held that ss.
3 and 4 of the Representation Act are invalid because
their effect is to
require a determination to be made only when a census is taken and not before
every regular election. The provisions
of s. 12(b) are however in my opinion
valid. When a vacancy arises in the House and a by-election has to be held
there is no occasion
to choose members in the several States. The by-election
merely restores to the State in which it is held the representation to
which
it was previously entitled. It maintains the status quo. There is no need to
apply to such an election a determination altering
the number of members to be
chosen in the various States. (at p53)
16. The provisions of s. 12(a) would in my opinion be valid if the section
went on to provide a procedure, or if it operated in
a context, which ensured
that redistribution would take place with all due diligence should the need
for it become manifest as a
result of the furnishing of a certificate under s.
6 of the Representation Act and of the determination under s. 9 that follows
from
it. However, the combined effect of s. 12(a) of the Representation Act
and ss. 24 and 25 of the Commonwealth Electoral Act is that
no redistribution
need ever be made and that the determination might never take effect. For
this reason, in my opinion, s. 12(a)
is invalid. (at p53)
17. Although it is obvious, it should be remarked that it does not follow
from the fact that the Representation Act is in part invalid
that the numbers
chosen in the several States in the past have not been in their correct
proportion. Even if it were established
that the numbers were not or are not
in their correct proportion (and there is no evidence to that effect), that
would not mean that
elections conducted in the past have been invalidly
conducted, or that an election conducted in future on the basis of the
existing
determination as to the number of members to be chosen in the several
States would be invalid. As I have already pointed out, there
is an
overriding constitutional duty to hold elections in certain circumstances.
There is also a constitutional duty to ensure that
each State is
proportionately represented in the House of Representatives, but a failure to
perform that duty does not invalidate
an election held otherwise in compliance
with the Constitution. Since, no doubt, the Parliament will act to give effect
to the requirements of s. 24 now that they have been pointed out, it is
unnecessary to consider what remedies might be available if it did not. (at
p53)
18. The question whether the requirements of s. 24 have been observed is in
my opinion clearly justiciable and a State has a standing to litigate it. On
this aspect of the matter
I find it unnecessary to add anything to what I have
said in Victoria v. The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR
81, at pp
162-165
. Counsel for the defendants expressly refrained from taking the point
that an individual elector
in a State has
no standing to sue
to enforce the
requirements of the second paragraph of s. 24 of the Constitution, and in the
circumstances that question need not be considered. (at p54)
19. For these reasons I would allow the demurrer in the case of
Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth. I
would,
however, overrule the demurrer in Lawlor v. The Commonwealth and South
Australia v. The Commonwealth and in those actions
would declare that ss. 3
and 4 of the Representation Act 1905-1973, are invalid, and that s. 12(a) of
that Act, in so far as it does
not require that any redistribution into
electoral divisions shall be effected, and therefore does not require an
alteration of the
number of members of the House of Representatives to be
chosen in any State, pursuant to a determination of the Chief Electoral
Officer,
ever to be given effect, is also invalid. (at p54)
STEPHEN J. In each of these three actions the constitutionality of
legislation concerned with the election of members to the House
of
Representatives is in issue. The facts and circumstances of these three
actions, including the terms of the relevant enactments,
sufficiently appear
in other judgments. (at p54)
2. In the action in which Mr. McKinlay is relator the attack upon
constitutional validity is confined to the Commonwealth Electoral
Act and to
such of its provisions as are concerned with the distribution of States into
electoral divisions. In this attack he is
joined by the plaintiffs in the
other actions, who however are also concerned to challenge the validity of
provisions of the Representation
Act. In these reasons for judgment I confine
myself to the attack upon the Electoral Act. (at p54)
3. The Electoral Act, by s. 19, requires the Distribution Commissioners, in
making any proposed distribution, to give consideration
to five specified
matters; subject thereto the State's quota, ascertained by dividing the
State's electors by the number of members
to be chosen for the State - s. 18,
is made the basis for the distribution, the Commissioners being permitted "a
margin of allowance"
of one tenth more or less than the quota. (at p54)
4. This provision is attacked upon two distinct grounds, each based
essentially upon s. 24 of the Constitution but the first of which is stressed
only by the relator, McKinlay. This first ground fixes upon the selection of
"electors", rather
than "people", as the dividend in the quota calculation;
the second ground, upon which all plaintiffs place equal emphasis, attacks
the
departure from strict equality of numbers within electoral divisions which is
permitted by s. 19. Both grounds rely upon the opening sentence of s. 24 of
the Constitution with its reference to the House of Representatives being
"composed of members directly chosen by the people of the Commonwealth".
It
is said that to distribute a State into electoral divisions by reference to
electors, rather than to population generally, and
also to depart from strict
mathematical equality of numbers within divisions, is to disregard in two
respects a constitutional guarantee
enshrined in s. 24. The contention is
that if only electors, as distinct from total population, are to be reckoned
in calculating the quota and thereafter
in applying it in determining the
boundaries of electoral divisions, those electoral divisions with higher than
average numbers of
non-electors, for instance children, will be
under-represented in the House of Representatives relative to their total
populations.
Moreover, since s. 24 is said to confer upon each elector a
constitutional right to cast a vote of equal weight to that cast by each other
elector, that
right is denied to him if his electoral division contains larger
numbers, whether of persons or of electors, than do other divisions;
he
suffers a diminution in the effectiveness of his vote and hence a diminished
share of representation in the House of Representatives.
(at p55)
5. These submissions depend for their success upon the presence within s. 24
of the Constitution of some constitutionally guaranteed right; the plaintiffs
invoke a principle of "as near as practicable equality" of numbers within
electoral divisions, a principle which is said to flow from and be guaranteed
by the phrase in s. 24, "chosen by the people of the Commonwealth". (at p55)
6. The true significance of this phrase in s. 24 is revealed by the setting
in which s. 24 is to be found. Section 24 is the opening section of Pt III of
Ch. I of the Constitution, entitled "The House of Representatives". It may be
compared with s. 7, the opening section of Pt II of the Chapter, entitled "The
Senate". Each of these sections devotes itself, at the outset, to a
description of the composition
of the particular House of Parliament with
which it deals, the Senate is to be "composed of senators for each State,
directly chosen
by the people of the State" - s. 7; the lower House is to be
"composed of members directly chosen by the people of the Commonwealth" - s.
24. (at p55)
7. Both the similarities and the differences between these two provisions are
highly significant. Each calls for a system of representative
democracy in
the sense that the House of the legislature are to be composed of members whom
the people choose; in each the method
of choice is required to be that of
direct choice, there is to be no interposition of an electoral college between
the chooser and
the chosen. In these two respects the constitutional
requirement is the same for each House. In a third respect it differs; the
lower House is to be, in a special sense, the House of the nation, the Senate
of the House of the States, it is the "people of the
Commonwealth", as opposed
to the "people of the State", who choose members of the lower House. (at p56)
8. Three great principles, representative democracy (by which I mean that the
legislators are chosen by the people), direct popular
election, and the
national character of the lower House, may each be discerned in the opening
words of s. 24. Nothing however is said as to the composition of electoral
divisions. Only if some requirement as to their composition necessarily
flows
from one or other of these three principles can the plaintiffs' submissions be
made good; and it can surely only be from the
first, representative democracy
in the sense in which I use that term, that some such requirement might be
derived. (at p56)
9. The principle of representative democracy does indeed predicate the
enfranchisement of electors, the existence of an electoral
system capable of
giving effect to their selection of representatives and the bestowal of
legislative functions upon the representatives
thus selected. However the
particular quality and character of the content of each one of these three
ingredients of representative
democracy, and there may well be others, is not
fixed and precise. I take each in turn. The extent of the franchise; whether
it
extends to all residents or to all residents over a given age or is
restricted, perhaps, to male British subjects over twenty-one,
maybe with a
superadded property qualification and whether more or less replete with
disqualifications on grounds of incapacity or
ciminality or the like, it will
none the less constitute an enfranchisement of electors. The electoral system,
with its innumerable
details including numbers and qualifications of
representatives, single or multi-member electorates, voting methods and the
various
methods, including varieties of proportional representation, whereby
the significance and outcome of the votes cast may be determined;
in each
there is scope for variety and no one formula can preempt the field as alone
consistent with representative democracy. Again
the wide range of legislative
functions which a legislature thus elected may possess is so clear in our
federal polity, with its
history of a variety of colonial legislatures, that
it requires no elaboration. (at p57)
10. It is, then, quite apparent that representative democracy is descriptive
of a whole spectrum of political institutions, each
differing in countless
respects yet answering to that generic description. The spectrum has finite
limits and in a particular instance
there may be absent some quality which is
regarded as so essential to representative democracy as to place that instance
outside
those limits altogether; but at no one point within the range of the
spectrum does there exist any single requirement so essential
as to be
determinative of the existence of representative democracy. (at p57)
11. To contend that the presence of what is described as "as near as
practicable equality of numbers" within electoral divisions
is essential to
representative democracy, to a legislature "chosen by the people", is to deny
proper meaning to language and to ignore
long chapters in the evolution of
democratic institutions both in this country and overseas, in which,
representative democracy having
been attained, its details have undergone
frequent changes in response to community pressures but have failed to possess
this feature
of equality of numbers on which the plaintiffs now insist. (at
p57)
12. It is no doubt true that something approaching numerical equality of
electors within electorates is an important factor, together
with much else,
in the attainment of what many will regard as representative democracy in its
purest form, just as adult suffrage,
free of discrimination on the grounds of
race, sex, property or educational qualification will likewise aid in its
attainment. But
neither of these in absolute form is necessarily imported
into the Constitution by the selection of representative democracy as the
chosen mode of government for the nation. (at p57)
13. This Court is not concerned to pass upon the relative merits of any
particular democratic electoral system otherwise conforming
to constitutional
requirements nor to determine that any one of the very many features which go
to make up such a system should conform
to one particular model rather than to
some other. The Constitution leaves this to legislatures to determine, in
most instances, initially, to the legislature of the States - see ss. 24, 29,
30, 31, 34(i) and (ii); or to the federal Parliament if it exercises its power
to "otherwise provide". Having entrusted to these elected legislatures
rather
than to this Court these wide powers of shaping as they see fit the details of
this nation's electoral system it is not for
this Court to intervene so long
as what is enacted is consistent with the existence of representative
democracy as the chosen mode
of government and is within the power conferred
by s. 51 (xxxvi.). (at p58)
14. At the time of federation the nature of the electoral system, as it would
operate until such time as the federal Parliament
might seek to intervene by
"otherwise providing", was known to all since it was, in very large measure,
already provided for by the
existing colonial electoral laws. It was a system
which contained such features as a franchise restricted to males in all but
two
of the States, with a property qualification applicable in one of the
States, and a further restriction of the franchise to natural
born or
naturalized British subjects in all but one State. Section 25 of the
Constitution recognized the disqualification of entire races which applied in
Queensland and in what was then the Northern Territory of South
Australia.
The last sentence of s. 25 and the terms of s. 26 of the Constitution ensured
that the proportionality of representatives to population should not operate
initially so far as the representatives for
Tasmania and Western Australia
were concerned. All these provisions are explicit indications that the
Constitution in no way pretended to any perfect embodiment of some particular
model of democratic principles; the federation of the colonies was
an
essentially practical and political affair, achieved after much negotiation
and the outcome of extensive compromise. (at p58)
15. In the light of all these considerations I regard it as quite unreal to
seek to extract from the opening phrase of s. 24 any requirement that
boundaries of electoral divisions be determined either having regard to
population numbers rather than numbers
of electors or solely upon a footing of
as near as practicable equality of numbers, whether of population or of
electors. (at p58)
16. This is confirmed by s. 29 of the Constitution. It is this section alone
which deals expressly with the matter of the electoral divisions, s. 24 being
concerned with quite other, and more far reaching matters; yet s.29 says
nothing as to equality of numbers within electoral divisions. Instead it
simply confers upon the State legislatures, "until
the Parliament of the
Commonwealth otherwise provides", the power to "determine the divisions in
each State", going so far, indeed,
as to permit States to legislate for
multi-member electorates if they see fit to do so. This then is a quite
unequivocal instance
of the Constitution reposing power in the legislatures to
determine these matters and is given added emphasis by the fact that, in
marked contrast to
ss. 30 and 31 which merely permit of the application to
elections for the Federal Parliament of certain State laws, as they exist from
time to
time, s. 29 positively confers upon the State Parliaments legislative
power to determine electoral divisions pending any federal legislation
on the
subject. (at p59)
17. An examination of the federal law which has been enacted under s. 51
(xxxvi.) on the subject matter indicated by s. 29 of the Constitution,
contained in the Electoral Act, discloses it to be within power. Section 19
of that Act contains a quite deliberate departure from
the principle of
precise equality of numbers within electoral divisions but each of the five
grounds upon which the Distribution
Commissioners may effect such a departure
not only possesses an obvious relevance to the general subject matter of
representative
democracy but is also equally within the scope of the power
conferred by s. 51 (xxxiv.). The first relates to the grouping together
of
electors with common interests, the second to ease of communication between
member and electorate, the third to estimates of future
population changes,
the fourth, as I would understand it, to the shape of electoral divisions, a
matter relevant to the topic of
the gerrymander, and the fifth to existing
electoral boundaries, any too frequent or unnecessary alteration of which may
be disruptive
of relations between an electorate and its member. Section 19
concludes by limiting to ten per cent the margin, above or below the
quota, by
which the Commissioners may give effect to their consideration of these five
factors in departing from mathematical equality
in the numbers within each
electoral division. (at p59)
18. Nothing in these provisions amounts to any denial of that system of
representative democracy, of choice by the people, to which
s. 24 of the
Constitution refers. (at p59)
19. The plaintiffs placed much reliance upon a number of recent decisions of
the U.S. Supreme Court; with these other judgments
have dealt and there is
nothing that I would wish to add to what has been said concerning them. (at
p59)
20. The foregoing will indicate the limited extent to which I regard s. 24 as
governing the question of electoral boundaries; so long as what is done
concerning them does not affect the continued existence
of a system of
representative democracy the legislature is otherwise free to legislate as it
sees fit within the subject matter spelled
out by s. 51 (xxxiv.), operating in
relation to s. 29; it is not bound to any rigid rule of numerical equality.
(at p59)
21. For the State of South Australia it is said that a further feature of the
Electoral Act also leads to invalidity because of
inconsistency with the
requirements of s. 24 of the Constitution. The complaint is that the Act
should, but does not, provide for something approaching a constant
re-assessment of the state of
distribution of electoral divisions. In fact
the present provisions for redistribution depend upon a proclamation for
initiation
of the process and thereafter the procedure for the formulation of
a proposal for re-distribution is a lengthy one. It calls for
the devising
and exhibiting of proposals and the consideration of suggestions and
objections and culminates in a report tabled in
each House. Only if then
approved by both Houses and proclaimed does it become effective to
redistribute the electorates. (at p60)
22. The consequence is that elections may take place in which particular
electorates have, under the influence of changes in population
distribution,
long ceased to bear the relationships the one to the other established in
conformity with s. 19 of the Act on the occasion
of the last distribution.
There exists the possibility that a redistribution, even if initiated under s.
25 of the Act and proposed
by the Commissioners after due consideration in
accordance with s. 19, might long be postponed by legislative or executive
action
or inaction under s. 24 of the Act. (at p60)
23. No doubt were the legislature singlemindedly to set itself to the task of
devising legislation more nearly approaching the ideal
it could much improve
upon the present scheme, although considerations of cost, of the possibility
of public inconvenience and, indeed,
confusion, and of administrative
difficulties might impose very substantial restraints upon reform, especially
in regard to any proposal
for continuous re-assessment and for a change of
electoral boundaries whenever the criteria of s. 19, kept under continuous
review,
were thought to indicate the need for a redistribution. (at p60)
24. However the present legislation has not been shown, upon the material
before this Court, to operate inconsistently with accepted
principles of
representative democracy and is moreover within the grant of power conferred
by s. 51 (xxxiv.) of the Constitution. For the reasons which I have earlier
expressed in dealing with the plaintiffs' other attack upon validity of the
Electoral Act
I regard this particular objection to validity as likewise
failing. (at p60)
25. For these reasons I would allow the demurrer in the action in which Mr.
McKinlay is relator. The two other actions involve
a quite distinct question
concerning validity of the Representation Act; I have had the advantage of
reading the reasons for judgment
of Gibbs J. and for the reasons stated by him
would overrule the demurrer in each of these actions and would make the
declaration
of invalidity which his Honour proposes. (at p60)
MASON J. The plaintiffs' primary case is directed against s. 19 of the
Commonwealth Electoral Act 1918-1975. This section prescribes
the matters to
be taken into account by the Distribution Commissioners in determining the
electoral divisions within the States for
a House of Representatives election
and permits variations of up to ten per cent upwards or downwards from the
quota of electors
fixed for a State by the Chief Electoral Officer under s. 18
of the Act. This branch of the plaintiffs' case is based on the provision
in
s. 24 of the Constitution that "the House of Representatives shall be composed
of members directly chosen by the people of the Commonwealth". Out of these
words the plaintiffs seeks to distil a requirement, expressed in the
shibboleth "one vote, one value", that the number of people
or electors in a
single member electorate shall be as nearly equal as is practicable. (at p61)
2. The submission finds no support in the language itself. The words state
that the members of the House shall be elected directly
by the people and not
indirectly through electoral colleges, a requirement which flows from the
presence of the word "directly",
a word which is not to be found in the
somewhat similar expression appearing in s. 29. All that the paragraph in s.
24 requires is that there should be a direct choice of the members by the
people - a prescription which does not cease to be satisfied
because there is
some, or even a marked, variation in the number of persons or electors in the
electoral divisions within a State.
The existence of such variations does not
detract from the accuracy of the description of our existing electoral system
as one in
which the members of the House are directly chosen by the people of
the Commonwealth. (at p61)
3. It is perhaps conceivable that variations in the numbers of electors or
people in single member electorates could become so grossly
disproportionate
as to raise a question whether an election held on boundaries so drawn would
produce a House of Representatives
composed of members directly chosen by the
people of the Commonwealth, but this is a matter quite removed from the
proposition that
s. 24 insists upon a practical equality of people or electors
in single member electorates. (at p61)
4. Part III of Ch. 1 of the Constitution contains several indications that
equality or practically equality in the value of a vote, reflected in equality
of numbers of electors
or people represented by single member constituencies
is not a constitutional requirement. Section 29 is the provision which deals
specifically and, it seems, comprehensively with electoral divisions. By
commencing with the words
"Until Parliament otherwise provides" it enables the
Parliament under s. 51(xxxvi.) to "make laws for determining the divisions in
each State for which members of the House of Representatives may be chosen,
and the
number of members to be chosen for each division". This grant of
power should be construed with "all the generality which the words
used
admit": it should be applied "without making implications or imposing
limitations which are not found in the express words"
(Reg. v. Public Vehicles
Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty.
Ltd [1964] HCA 15; (1964) 113
CLR 207, at p
225 ). The only limitation which it imposes on
Parliament's power to legislate is in the prohibition that
a division
shall
not be
formed out of parts of different States. (at p62)
5. Secondly, it is of significance that the second paragraph of s. 24 makes
explicit provision for the ascertainment of a quota of people for the specific
yet limited purpose of ascertaining the number
of members to be chosen in each
State. Had it been intended to provide that electoral divisions within a
State should contain an
equal or practically equal number of people or
electors it is inconceivable that the quota provision would have been
expressed to
have such a limited application. (at p62)
6. Next, it is to be noted that the Constitution does not guarantee or insist
upon universal adult suffrage. Sections 25 and 30 recognize that people may
be denied the right to vote by State law until Parliament otherwise provides
or by a law of the Commonwealth
Parliament, subject only to the prohibition
contained in s. 41 that an adult who has the right to vote for the more
numerous House in the State under State law cannot be denied a vote in a
federal
election by a Commonwealth law. It is not to be supposed that
contemporaneously with these provisions, acknowledging as they did
that people
could be disqualified as electors in Federal elections, s. 24 insists upon a
practical equality in electoral divisions, though making no reference to that
topic. (at p62)
7. The substance of the matter is that the conception of equality in the
value of a vote or equality as between electoral divisions
is a comparatively
modern development for which no stipulation was made in the system of
democratic representative government provided
for by our Constitution. (at
p62)
8. The plaintiffs place great reliance upon the decisions of the United
States Supreme Court dealing with Art. 1, s. 2 of the United
States
Constitution, notably Wesberry v. Sanders [1964] USSC 31; (1964) 376 US 1 (11 Law Ed 2d 481) .
As Barwick C.J. and Gibbs J. have pointed out, the constitutional
interpretation to which these
decisions give effect are based on an historical
context which has no counterpart in Australia. It
is no answer to this point
to
say that our Constitution is based on the American Constitution or that s.
24 is based on Art. 1, s. 2. The interpretation adopted in Wesberry v.
Sanders is again a modern development that altered the inequality in electoral
divisions
which prevailed in the United States from early times. This
inequality was understood to involve no contravention of Art. 1, s. 2 until
Wesberry v. Sanders was decided. When our Constitution was enacted it had not
been decided that Art. 1, s. 2 insisted upon an equality in the value of a
vote. The American provision was not thought to carry that message. And it
is simply
not correct to say that provisions in our Constitution should
receive the same construction as that given to similarly worded provisions in
the United States Constitution which have a different context and a different
history, more particularly when the suggested construction is of recent
origin, reversing
an interpretation previously accepted. (at p63)
9. As to the other matters which have been argued, I am in agreement with the
reasons for judgment prepared by Gibbs J. and with
the orders and the
declaration which he proposes. (at p63)
MURPHY J. The actions are brought by the Attorney-General of Australia at
the relation of a resident of Victoria, by the State
of South Australia, its
Attorney-General, and an elector of that State, and by an elector of
Queensland. The Commonwealth of Australia,
the Chief Australian Electoral
Officer, and, in one action, a Divisional Returning Officer are the
defendants. (at p63)
2. The actions differ, but essentially the plaintiffs claim debasement or
dilution of rights to representation in the House of Representatives
because
of the wide differences in numbers of people and electors in electoral
divisions within the States. (at p63)
3. The actions seek declarations that the boundaries of certain electoral
divisions are not fixed by law; declarations that parts
of the Commonwealth
Electoral Act 1918-1973 and of the Representation Act 1973 are invalid; and
injunctions restraining the conducting
of an election in which in the
electoral divisions in each State the numbers
of people, or alternatively the
numbers of electors,
are not as equal as practicable. (at p63)
4. The material put before the Court included some of the latest Commonwealth
statistics of population and electors. (at p63)
5. These statistics show that in Victoria the division of Diamond Valley, of
which the relator, McKinlay, is a resident and elector,
has a population of
130,039 and the number of electors is 89,659. The division of Burke has the
highest number of people in the State,
135,547, with 87,299 electors. The
division of Wimmera has the lowest number of people, 77,526, and 49,788
electors. (at p64)
6. In Queensland, at 18th May 1974, the number of electors enrolled in the
division of MacPherson exceeded by 91.5 per cent the
number in the division
with the lowest number of enrolled electors in the State. At 30th September
1975 this figure had risen to
113.8 per cent, that is, more than double the
number. (at p64)
7. The table below shows the number of people residing in South Australian
electoral divisions at 30th June 1971 (according to Commonwealth
statistics
published pursuant to the Census and Statistics Act 1905-1973) and the number
of electors on the dates of the last two
general elections (2nd December 1972
and 18th May 1974) and also for 26th September 1974 (the date to which the
latest published
statistics of the Commonwealth relate):
Population Electors Electors ElectorsDivision 30.6.71 2.12.72 18.5.74 26.9.75
8. It was further claimed, on behalf of South Australia and its co-plaintiffs
(and, for the purpose of the demurrer, must be accepted)
that, as the latest
statistics of the Commonwealth show, a similar disparity between divisions (in
both numbers of people and electors)
exists in the State of New South Wales,
Victoria, Queensland, Western Australia and Tasmania. (at p64)
9. The history of these proceedings is set out in the judgment of the Chief
Justice. (at p64)
10. The main question is whether the Australian Constitution guarantees
electoral democracy. (at p64)
11. The plaintiffs argue that in each State the electoral divisions, which
are entitled to elect one member each to the House of
Representatives, should
contain, as nearly as practicable, equal numbers of people or, alternatively,
equal numbers of electors.
(at p64)
12. They contend that this right to equal representation is guaranteed by the
phrase "chosen by the people" in s. 24 of the Constitution. (at p65)
13. Great rights are often expressed in simple phrases. (at p65)
14. Section 24 is as follows:
"The House of Representatives shall be composed of membersThese provisions for choosing by the people and the proportionate balance of members between the States were clearly taken from Art. I, s. 2 of the Constitution of the United States of America which provides:
directly chosen by the people of the Commonwealth, and
the number of such members shall be, as nearly as practicable,
twice the number of senators.
The number of members chosen in the several States shall be
in proportion to the respective numbers of their people, and
shall, until the Parliament otherwise provides, be determined,
whenever necessary, in the following manner:-
(i) A quota shall be ascertained by dividing the number of
the people of the Commonwealth, as shown by the latest
statistics of the Commonwealth, by twice the number of
the senators:
(ii) The number of members to be chosen in each State shall
be determined by dividing the number of the people of
the State, as shown by the latest statistics of the Commonwealth,
by the quota; and if on such division there
is a remainder greater than one-half of the quota, one
more member shall be chosen in the State.
But notwithstanding anything in this section, five members
at least shall be chosen in each Original State." (My
emphasis.)
"1. The House of Representatives shall be composed of
members chosen ... by the people of the several States ..."
"3. Representatives ... shall be apportioned among the
several States which may be included within this Union,
according to their respective numbers ..." (at p65)
THE MEANING OF "BY THE PEOPLE" IN THE UNITED STATES CONSTITUTION
15. By a series of famous decisions, the United States Supreme Court has held
that the words "chosen by the people" were themselves
a guarantee of democracy
(see Wesberry v. Sanders [1964] USSC 31; (1964) 376 US 1 (11 Law Ed 2d 481) ; Wells v.
Rockefeller [1969] USSC 74; (1969) 394 US 542 (22
Law Ed 2d 535) ; Kirkpatrick v. Preisler
[1969] USSC 112; (1969) 394 US 526 (22 Law Ed 2d 519) ; White v. Weiser [1973] USSC 153; (1973) 412 US 783 (37
Law Ed 2d 335)
). (at p66)
16. These cases established that the words in Art. 1, that representatives
"shall be chosen by the people", contained a command
of equal representation
in the House of Representatives for equal numbers of people. In Wesberry v.
Sanders Warren C.J. and Black,
Douglas, Brennan, White and Goldberg JJ. in the
opinion of the Court, delivered by Black J. stated (1964) 376 US, at pp 7-9
(11 Law
Ed 2d, at pp 486-487) :
"We hold that, construed in its historical context, the commandand later (1964) 376 US, at pp 17-18 (11 Law Ed 2d, at p 492) :
of Art. 1, s. 2, that Representatives be chosen 'by the
People of the several States' means that as nearly as is practicable
one man's vote in a congressional election is to be worth
as much as another's. This rule is followed automatically, of
course, when Representatives are chosen as a group on a
statewide basis, as was a widespread practice in the first fifty
years of our Nation's history. It would be extraordinary to
suggest that in such statewide elections the votes of inhabitants
of some parts of a State, for example, Georgia's
thinly populated Ninth District, could be weighted at two or
three times the value of the votes of people living in more
populous parts of the State, for example, the Fifth District
around Atlanta. Cf. Gray v. Sanders (1963) 37 US 368 (9 Law Ed 2d 821).
We do not believe that the Framers of the Constitution intended to
permit the same vote-diluting discrimination to be accomplished
through the device of districts containing widely varied numbers
of inhabitants. To say that a vote is worth more in one
district than in another would not only run counter to our
fundamental ideas of democratic government, it would cast
aside the principle of a House of Representatives elected 'by
the People' a principle tenaciously fought for and established
at the Constitutional Convention. The history of the Constitution,
particularly that part of it relating to the adoption of
Art. 1, s. 2, reveals that those who framed the Constitution
meant that, no matter what the mechanics of an election,
whether statewide or by districts, it was population which
was to be the basis of the House of Representatives."
"No right is more precious in a free country than that ofThe contention that variances were necessary in the drawing of congressional districts, to avoid the fragmentation of areas with distinct economic and social interests and the consequent dilution of effective representation of these interests in Congress was rejected as antithetical to the basic premise of the constitutional command to provide equal representation, (see Kirkpatrick v. Preisler (1969) 394 US, at pp 531, 533 (22 Law Ed 2d, at pp 524-525, 526) ). (at p67)
having a voice in the election of those who make the laws
under which, as good citizens, we must live. Other rights,
even the most basic, are illusory if the right to vote is undermined.
Our Constitution leaves no room for classification of
people in a way that unnecessarily abridges this right. In
urging the people to adopt the Constitution, Madison said in
No. 57 of The Federalist: 'Who are to be the electors of the
Federal Representatives? Not the rich more than the poor;
not the learned more than the ignorant; not the haughty heirs
of distinguished names, more than the humble sons of obscure
and unpropitious fortune. The electors are to be the great
body of the people of the United States ...' Readers surely
could have fairly taken this to mean, 'one person, one vote'.
Cf. Gray v. Sanders (1963) 372 US, at p 381 (9 Law Ed 2d, at p 831) .
While it may not be possible to draw congressional districts
with mathematical precision, that is no excuse for ignoring our
Constitution's plain objective of making equal representation
for equal numbers of people the fundamental goal for the
House of Representatives. That is the high standard of justice
and common sense which the Founders set for us."
17. Brennan J. was joined by Douglas J. and Marshall J. in White v. Regester
where he said [1973] USSC 152; (1973) 412 US 755, at pp 780-781 (37
Law Ed 2d 374, at pp
333-334) :
"... it is important to understand that the demand for preciseIn Gray v. Sanders, the Court said (1963) 372 US, at p 381 (9 Law Ed 2d, at pp 830-831) :
mathematical equality rests neither on a scholastic obsession
with abstract numbers nor a rigid insensitivity to the
political realities of the reapportionment process. Our paramount
concern has remained an individual and personal right
- the right to an equal vote ... We have demanded equality
in district population precisely to insure that the weight of a
person's vote will not depend on the district in which he
lives."
"The conception of political equality from the DeclarationIn Reynolds v. Sims [1964] USSC 202; (1964) 377 US 533 (12 Law Ed 2d 506) , a State reapportionment case based on the Equal Protection Clause, the Court made a relevant observation (1964) 377 US, at p 562 (12 Law Ed 2d, at p 527) :
of Independence, to Lincoln's Gettysburg Address, to the
Fifteenth, Seventeenth, and Nineteenth Amendments can
mean only one thing - one person, one vote."
"Legislators represent people, not trees or acres. Legislators
are elected by voters, not farms or cities or economic interests.
As long as ours is a representative form of government, and
our legislatures are those instruments of government elected
directly by and directly representative of the people, the right
to elect legislators in a free and unimpaired fashion is a bedrock
of our political system." (at p68)
THE CONSTRUCTION OF SECTION 24.
18. In determining the meaning of s. 24, certain principles of constitutional
interpretation should be borne in mind.
"... it must always be remembered that we are interpreting413).
a Constitution broad and general in its terms, intended
to apply to the varying conditions which the development of
our community must involve.
For that reason, where the question is whether the Constitution
has used an expression in the wider or in the narrower
sense, the Court should, in my opinion, always lean
to the broader interpretation unless there is something in the
context or in the rest of the Constitution to indicate that the
narrower interpretation will best carry out its object and
purpose." (Jumbunna Coal Mine N.L. v. Victorian Coal
Miners' Association (1908) 6 CLR 309, at pp 367-368.)
"Constitutions made, not for a single occasion, but for the
continued life and progress of the community may and,
indeed, must be affected in their general meaning and effect
by what Lord Watson in Cooper v. Stuart (1889) 14 App Cas 286, at p 293.)
calls 'the silent operation of constitutional principles'."
(The Commonwealth v. Kreglinger, per Isaacs J. [1926] HCA 8; (1926) 37 CLR 393, at p
"We should avoid pedantic and narrow constructions in
dealing with an instrument of government and I do not see
why we should be fearful about making implications". (Australian
National Airways Pty. Ltd. v. The Commonwealth, per
Dixon J. [1945] HCA 41; (1945) 71 CLR 29, at p 85 .) (at p68)
19. The House of Representatives. This name implies an organ of popular
representative government. (at p68)
20. Shall Be. The history of the United States Constitution shows that the
use of the word "shall" throughout the Constitution was a deliberate departure
from the exhortations or statements of philosopy in earlier instruments, such
as the English Bill of Rights
and the Virginia Declaration. It was a
deliberate use of the language of command, an expression of imperative law
(see Cahn, The
Great Rights (1963), p. 5). (at p68)
21. Directly. This is clearly intended to ensure a direct popular election,
allowing no intermediary, such as an electoral college.
(at p68)
22. Chosen by the People. The literal and commonsense construction of this
important constitutional provision is a choosing by
all people capable of
choosing, only excluding those incapable, such as minors and those of unsound
mind. (at p69)
23. It may have been accepted in 1900 that "chosen by the people" could
exclude women and people without certain property. Women
were then deprived of
the vote in certain States and this was referred to obliquely in s. 128 of the
Constitution. Because of the silent operation of constitutional principles,
this is no longer so. In 1975, any law of the Parliament which deprived
persons of a right to representation or to vote on the ground of sex or lack
of property would be incompatible with the command that
the House of
Representatives be directly "chosen by the people". It would contravene s. 24
and be thus unconstitutional. (at p69)
24. Of the Commonwealth. This is the indissoluble federal Commonwealth
formed by the union of the people of what are now the States
(see Commonwealth
of Australia Constitution Act, the covering clauses). (at p69)
25. The extended phrase, "chosen by the people of the Commonwealth" indicates
the national character of the House of Representatives,
a popular
representative body and points to the equal sharing of political power. Apart
from Territorial members (who are provided
for under s. 122) the members are
to be chosen by the people of the Commonwealth in the several States. (at
p69)
26. The Number of Members of the House of Representatives. Again using the
language of command, the requirement is that the number
of members shall be
nearly as practicable twice the number of senators. This is the "nexus"
between the two houses. (at p69)
27. The Number of Members chosen in the Several States. The use of the words
"chosen in the several States" and similar expressions
in s. 24 emphasize that
the choosing is to be in each of the States, as in the United States
Constitution. (at p69)
28. "Shall be in proportion to the respective numbers of their people". This
is a command also taken from the United States Constitution. (at p69)
29. Whenever Necessary. These words mean whenever necessary for a general
election for the House of Representatives. There is
a constitutional
obligation (which, in the absence of legislative provision, falls upon the
Executive Government under s. 61) to prepare the statistics of the
Commonwealth referred to in s. 24 enabling the determination of the numbers of
members to be chosen in each State for any general election. The discharge of
this
obligation in relation to a general election, where the House of
Representatives continues for a normal period should present no
difficulty.
Section 28 provides that the House of Representatives shall continue for three
years from the first meeting of the House, but no longer. It
may be sooner
dissolved by the Governor-General. The normal period is a little less than the
three years. (at p70)
30. Whenever the statistics show that the number of members to be elected in
a State as provided by s. 24 does not accord with the number of members to be
elected for the existing divisions in any State, and if a redistribution
cannot
be effected to accord with s. 24 in time for the general election, that
State is to be one electorate. This is required by the combined commands in
the second paragraphs
of ss. 24 and 29 of the Constitution. (at p70)
31. And shall until the Parliament otherwise provides, be determined. As in
the United States Constitution, a method of determination is commanded
(although different) and as in the United States a minimum number is provided.
The use of
the clause, "until the Parliament otherwise provides", confers
power under s. 51(xxxvi.) to make laws, subject to the Constitution, on the
manner of determining the numbers. Such laws must therefore conform to the
command or mandate in s. 24. (at p70)
DOES "CHOSEN BY THE PEOPLE" COMMAND EQUALITY?
32. In the present case, three main views have emerged on whether the phrase
"chosen by the people" carries a command or a mandate
of equal
representation.
1. The phrase should be construed in the same way as it was by the
United States Supreme Court but having as the standard
of equality the
alternatives of equal numbers of people and equal numbers of electors.
2. It contains a lesser requirement which, although related to
equality, does not command that the number of people or electors
be, as nearly
as practicable equal (to the point of a good faith departure from such a
standard).
3. The words convey no mandate of any kind. (at p70)
33. If the second view is accepted, it is not easy to see what standard would
be used in determining when the members were "chosen
by the people". (at p70)
34. If the third view is accepted, it means simply that the Constitution does
not require that the election for the House of Representatives be democratic.
It would permit the most undemocratic deprivation
or dilution of voting power,
such as rotten boroughs, depriving women of a vote, and the imposing of
property qualifications on voters.
The State of New South Wales, intervening,
adopted the stand that the Constitution would permit the members of the House
of Representatives to be elected only by mayors and presidents of municipal
and shire councils.
It would mean also, as was argued, that a one member
division could constitutionally contain twenty times the number of people or
electors as another division in the same State and that one division could
have twenty times the number of members as another division
containing the
same number of electors or people. (at p71)
35. In my opinion, the first view is correct. (at p71)
36. I am led to this conclusion by:
(a) The obvious importance placed on the phrase by its positioning in the
opening sentence of that part of the Constitution devoted to the House of
Representatives, and the fact that it is expressed in the language of
command.
(b) The democratic theme of equal sharing of political power which pervades
the Constitution. In 1902, the authority on the Constitution, Professor W.
Harrison Moore wrote:
"The predominant feature of the Australian Constitution
is the prevalence of the democratic principle, in its most
modern guise." (Constitution of the Commonwealth of Australia,
1st ed. (1902), p. 327).
and
"The great underlying principle is, that the rights of individuals(My emphasis.) (Ibid., p. 329.)
are sufficiently secured by ensuring, as far as possible,
to each a share, and an equal share, in political power."
37. The framers of the Australian Constitution, in adopting the precise words
of the United States Constitution were certainly aware of United States
history. The struggles for independence, the declaration of independence, the
revolutionary
war, the framing of the United States Constitution, as well as
the contributions to the liberty of man by the great figures of the United
States, are part of the history of the English-speaking
peoples. This history
is part of our cultural heritage. (at p72)
38. In the United States, the controversy in the Supreme Court (apart from
questions of justiciability) appears to have centred
on the question whether
the principle of "one person, one vote" was implied in the phrase "by the
people" in the United States Constitution. That it was so implied was basic
to the conclusion arrived at by the Supreme Court in the set of cases referred
to. (at p72)
39. In Australia we are relieved of this controversy. The principle of "one
person, one vote" is expressly included in s. 30 of
the Australian
Constitution which deals with the subject of qualification of electors and
ends with the provision "but in the choosing of members each elector
shall
vote only once." The purpose of the closing words of s. 30 is not merely to
prevent multiple voting. The command contained in the words was intended to be
effective. The effect cannot be destroyed
by some device such as counting some
votes several times and others once only or not at all. Equally, its effect
cannot be destroyed
by diminishing the value of votes by having divisions with
either widely differing numbers of electors returning the same number
of
members, or divisions of the same number of electors but represented by
differing numbers of members. This would devalue or debase
the vote as much
as multiple voting (which is plainly forbidden by s. 30). The mischief that
the provision in s. 30 was designed to cure arises just as much in unequal
voting as in multiple voting. (at p72)
40. As we have seen, the Supreme Court in the United States held that the
provision that the members shall be chosen "by the people"
expresses the most
basic right of the people and commands that there shall be equal
representation, an equal sharing of political
power in the election in each
State for the House of Representatives. It is a remarkable result if the same
words carried into our
Constitution and used for the same purpose of
describing how the members shall be chosen are construed by our High Court as
a vague philosophic
statement requiring a direct choice but permitting the
choosing to be by a few of the people only, with exclusions on grounds of
sex
or property, or other arbitrary criteria, and allowing the voting to be
debased by unequal divisions or other devices. (at p73)
41. As Jefferson said, Writings, Washington ed. (1859), vol. 4, p. 506:
"Our peculiar security is the possession of a written Constitution.(f) The automatic result of equal representation for equal numbers of people and of electors follows when representatives are chosen on the basis provided by s. 29: "In the absence of other provision, each State shall be one electorate." (In the election for the first Parliament, two of the States were single electorates.) As the United States Supreme Court has observed, it would be extraordinary and unacceptable to suggest that in such a State-wide election, the votes cast in some parts could be weighted at two or three times the value of votes cast by those living in more populous parts of the State:
Let us not make it a blank paper by construction."
"We do not believe that the Framers of the Constitution(g) The fact that the laws made by the Parliament pursuant to ss. 29 and 30 are subject to the Constitution, and therefore subject to the commands in s. 24. (at p73)
intended to permit the same vote-diluting discrimination to
be accomplished through the device of districts containing
widely varied numbers of inhabitants." Wesberry v. Sanders
(1964) 376 US, at p 8 (11 Law Ed 2d, at p 487).
42. Section 29 states:
"Until the Parliament of the Commonwealth otherwiseSection 30 states:
provides, the Parliament of any State may make laws for determining
the divisions in each State for which members of
the House of Representatives may be chosen, and the number
of members to be chosen for each division. A division
shall not be formed out of parts of different States.
In the absence of other provision, each State shall be one
electorate."
"Until the Parliament otherwise provides, the qualification
of electors of members of the House of Representatives shall
be in each State that which is prescribed by the law of the
State as the qualification of electors of the more numerous
House of Parliament of the State; but in the choosing of
members each elector shall vote only once." (at p74)
43. When the federation was launched, the first Parliament was elected
according to State laws, some of which plainly did not observe
the commands in
s. 24. In two States, there were State-wide elections, but in others, the
divisions were unequal in people and electors. In some, the
qualifications of
electors did not conform with the concept of equal sharing of political power,
as women and those without certain
property were deprived of the vote. (at
p74)
44. It was necessary in a practical sense, and the scheme of the Constitution
was, that neither the State laws which might be made under s. 29 nor those
which might operate under s. 30 were to be subject to the Constitution,
including s. 24. Also, s. 26 provided specifically for the number of members
to be elected in each State in the first election, "Notwithstanding anything
in section
twenty-four ...". This was for the same practical necessity. (at
p74)
45. Thus, the Constitution provided that s. 24 was not to prevail over the
operative parts of ss. 29 and 30 when the federation was being launched. Once
the federation was launched, s. 24 began to operate. Its command for
determining the numbers of members replaced the specification in s. 26. When
Parliament made laws on the matters referred to in ss. 29 and 30, it did so
pursuant to the provisions, "Until the Parliament otherwise provides" in those
sections. When this clause is used, the
legislative power is derived from s.
51 which provides: "The Parliament shall, subject to this Constitution, have
power to make laws for the peace, order, and good government of the
Commonwealth with respect to:- ... (xxxvi.) Matters in
respect of which this
Constitution makes provision until the Parliament otherwise provides:" It
follows that any provision made by the Parliament under ss. 29 or 30 is
subject to the Constitution, and consequently is subject to s. 24. (at p74)
46. Therefore, it was provided by a very deliberate choice of language in ss.
29 and 30 that the provisions of State laws (which were to operate only until
the Parliament provided otherwise) were not subject to the Constitution,
including s. 24, but the laws made by Parliament (under s. 51(xxxvi.)) in
relation to the matters in ss. 29 and 30 were subject to the Constitution,
including s. 24. (at p74)
47. In other words, the laws made by Parliament under ss. 29 and 30 are
subject to constitutional constraints, in particular to those in s. 24 which
were not to prevail over the State laws used to launch the federation. (at
p75)
48. The fact, then, that the State laws referred to in ss. 29 and 30 did not
conform to the commands in s. 24, is irrelevant to the question whether the
laws made by the Parliament on the matters of divisions and qualification of
electors
in ss. 29 and 30 are subject to a command of equality in s. 24. (at
p75)
PEOPLE OR ELECTORS.
49. It may make no great difference in practice whether the standard of
quality is measured in people or electors. Whatever is
construed to be the
constitutional standard, it must be observed in all legislative and
administrative measures in order to prevent
debasement of the constitutional
right. (at p75)
50. In my opinion, the standard of equality is to be measured in each State
in numbers of electors rather than numbers of people.
The emphasis in "chosen
by the people" in s. 24 is on a choosing by all the people capable of
choosing, that is, the electors. The number of members in each State is to be
proportionate
(subject to the minimum) to the population of each State. But
in the choosing in each State, the electors share the voting power
equally,
whether the State is one electorate or in divisions. This view is supported
by the reasoning in the United States cases
which refer repeatedly to equality
of voting power and similar expressions as the principle underlying the
command. It is reinforced
by the "one person, one vote" mandate in s. 30 of
the Constitution. (at p75)
JUSTICIABILITY.
51. The questions raised by the plaintiffs are justiciable. An action which
seeks protection of a political right does not merely
present a political
question. The contention that it does "is little more than a play upon words"
(Baker v. Carr [1962] USSC 48; (1962) 369 US 186,
at p 209 (7 Law Ed 2d 663, at p 681) ,
quoting Nixon v. Herndon [1927] USSC 66; (1927) 273 US 536, at p 540 (71 Law Ed 759, at p 761)
). And in
Wesberry v. Sanders (1964) 376 US, at pp 6-7 (11 Law Ed 2d, at
p
486) , the opinion of the United States Supreme Court was:
"... we made it clear in Baker [1962] USSC 48; (1962) 369 US 186 (7 Law Ed 2d 663) that
nothing in the
language of that article gives support to a construction thatOgden
would immunize state congressional apportionment laws
which debase a citizen's right to vote from the power of courts
to protect the constitutional rights of individuals from legislative
destruction, a power recognized at least since our decision
in Marbury v. Madison [1803] USSC 16; (1803) 1 Cranch 137 (2 Law Ed 60) . Cf. Gibbons v.
to be stripped of judicial protection by such an interpretation
of Article 1. This dismissal can no more be justified on the
ground of 'want of equity' than on the ground of 'non-justiciability'."
(at p76)
STANDING.
52. A member of the Parliament, a candidate, an elector, or any one of the
people of the Commonwealth has standing to challenge
the validity or operation
of legislative or administrative measures on the ground that they adversely
affect his or her right to
vote, to represent, or to be represented (see
McDonald v. Cain [1953] VicLawRp 62; (1953) VLR 411 ; Tonkin v. Brand (1962) WAR 2 ; Lindell,
"Judicial
Review and the Composition of the House of Representatives",
Federal
Law Review, vol. 6 (1974), p. 8). (at p76)
53. Enforcement of constitutional political rights does not have to be
justified by characterizing them as rights of property.
This degrades the
political right. The exaltation of property rights over civic and political
rights is a reflection of the values
of a bygone era. (at p76)
54. The United States Supreme Court in Baker v. Carr said (1962) 369 US, at p
204 (7 Law Ed 2d, at pp 707-708) :
"Have the appellants alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions? This is the gist of the question
of standing." (at p76)
55. The Court should not prevent the people of Australia from seeking to
establish or enforce political rights by judicial processes.
(at p76)
THE COMMONWEALTH ELECTORAL ACT 1918-1973.
56. The relevant provisions of this Act are laws to determine electoral
divisions envisaged by s. 29 of the Constitution and made under s. 51. They
must therefore comply with the Constitution, including s. 24. (at p76)
57. Section 19 of the Act (as amended by No. 38 of 1974) provides:
"In making any proposed distribution of a State into Divisions,For the reasons given in detail earlier, the allowance for a departure of one-tenth from the quota is inconsistent with the mandate in s. 24 of the Constitution that the members of the House of Representatives shall be "chosen by the people". It conflicts with the requirement that the divisions shall contain numbers of electors as nearly equal as practicable. I would declare s. 19 invalid. (at p77)
the Distribution Commissioners shall give due consideration,
in relation to each proposed Division, to -
(a) community of interests within the Division, including
economic, social and regional interests;
(b) means of communication and travel within the Division;
(c) the trend of population changes within the State;
(d) the physical features of the Division; and
(e) existing boundaries of Divisions and Subdivisions,
and subject thereto the quota of electors shall be the basis for
the distribution, and the Distribution Commissioners may
adopt a margin of allowance, to be used whenever necessary,
but in no case shall the quota be departed from to a greater
extent than one-tenth more or one-tenth less."
58. In my opinion, both ss. 24 and 25 of the Act cause the legislative scheme
to contravene the Constitution. These are in Pt III of the Act which is an
elaborate scheme for distribution of a State into electoral divisions. (at
p77)
59. Section 24 of the Act offends against s. 24 of the Constitution in two
separate respects. Firstly, it provides that such divisions when proclaimed
shall, until altered, be the electoral divisions
for the State. But
alteration of these divisions requires approval by both Houses of Parliament
of any proposed distribution and
the proclamation of the Governor-General
declaring the names and boundaries of the divisions. The alteration need
never occur. Section 24 of the Constitution requires that the number of
members chosen in the several States shall be in proportion to the respective
members of their people.
Section 24 of the Act clearly allows that the number
of members need not be in such proportion. Secondly, under s. 24 of the Act
the elections are to be conducted in accordance with the last distribution
even if it conflicts with the mandate of s. 24 of the Constitution of equal
numbers of members for equal numbers of electors as outlined earlier. (at
p77)
60. These are not theoretical considerations, as can be seen by the history
of elections which were conducted on old distributions
although the number of
divisions contravened the proportions between the States required by the
Constitution. In the elections for the House of Representatives in 1963 and
1966 the principle of proportionate representation between the States
was
plainly infringed (see Paterson, "Federal Electorates and Proportionate
Distribution", loc. cit.). (at p77)
61. Section 25 of the Act which also provides that redistributions may, but
need not, be made in the circumstances set out, conflicts
with s. 24 of the
Constitution for the same reasons. (at p78)
62. As ss. 24 and 25 would allow the Constitution to be contravened, I would
declare each invalid. (at p78)
THE REPRESENTATION ACT 1905-1974.
66. This law is made pursuant to s. 51(xxxvi.) of the Constitution to deal
with "matters in respect of which this Constitution makes provision until the
Parliament otherwise provides". The relevant matter referred to is the
determination of the numbers of
members to be chosen in the several States
provided for in s. 24 of the Constitution. As the legislative power under s.
51(xxxvi.) is expressed to be subject to the Constitution, the Act must
conform with the requirement of s. 24 that the number chosen in the several
States shall be in proportion to the respective
numbers of their people. (at
p78)
64. Section 10 of the Representation Act which provides for the determination
of the number of members of the House of Representatives,
was amended in 1964
to provide that
if, after division of the number of the people of the State by
the quota, there is a remainder,
one more member shall be chosen in
the State.
That does not seem to be consistent with the nexus provision of s. 24 of the
Constitution, but its validity was not questioned in these proceedings. (at
p78)
65. By s. 12(a) of the Representation Act, the alteration in the number of
members to be chosen in the several States shall not
affect any election held
before the State has
been redistributed. Under the legislative scheme the
redistribution need never occur.
This plainly enables the command in s. 24 of
the Constitution to be circumvented. I would declare s. 12(a) invalid. (at
p78)
66. During the hearing, reference was made to the fact that a redistribution
in accordance with the provisions of s. 19 of the Commonwealth
Electoral Act
had been proposed, and that, although it was approved by the House of
Representatives, it was not approved by the Senate
in accordance with s. 24 of
the Commonwealth Electoral Act. Since the judgment on this case was reserved,
a dissolution of both
Houses of Parliament has occurred. A general election
will be held on 13th December 1975. Enrolments and nominations for the
existing
divisions have closed. The election will therefore be conducted
according to divisions declared on 25th November 1968 for New South
Wales,
Victoria and South Australia and on 27th February 1969 for Queensland, Western
Australia and Tasmania. These are based on
the statistics obtained from the
Census as at 30th June 1966. The divisions were determined when s. 19 of the
Commonwealth Electoral
Act was in a different form which allowed a departure
from the quota of twenty per cent, allowing divisions of from eighty per cent
to one hundred and twenty per cent of the quota. In each State the numbers of
electors in the divisions now vary so widely that
the value of the votes
varies significantly. The value of some votes is more than double the value of
others. (at p79)
67. The result of the glaring inequalities between the electoral divisions in
each of the States, in my opinion, is that in those
States, the election
proposed to be held on 13th December next will not be one in which the members
will be "chosen by the people"
as the Constitution requires. (at p79)
68. The demurrers by the defendants should be overruled. (at p79)
69. It should be declared that ss. 19, 24 and 25 of the Commonwealth
Electoral Act 1918-1973 are invalid and that s. 12(a) of the
Representation
Act 1905-1974 is invalid. (at p79)
70. It should be declared that any general election for members of the House
of Representatives, in which the numbers of electors
in one-member divisions
in each State are not as nearly as practicable equal, is not an election in
which the members are chosen
by the people, as s. 24 of the Constitution
requires. (at p79)
ORDER
ATTORNEY-GENERAL (CTH); EX REL. MCKINLAY v. THE COMMONWEALTH.
Defendants' demurrer allowed.
Action dismissed with costs.
SOUTH AUSTRALIA V. THE COMMONWEALTH.
Defendants' demurrer overruled in part. Declare that s. 3, s. 4 and s.
12(a) of the Representation Act 1905-1973 are invalid.
LAWLOR v. THE COMMONWEALTH.
Defendants' demurrer overruled in part. Declare that s. 3, s. 4 and s.
12(a) of the Representation Act 1905-1973 are invalid.
(HIGH COURT OF AUSTRALIA)ATTORNEY-GENERAL OF THE COMMONWEALTH
(AT THE RELATION OF MCKINLAY) PLAINTIFF;THE COMMONWEALTH OF AUSTRALIA
AND
AND ANOTHER DEFENDANTS.THE STATE OF SOUTH AUSTRALIA
AND OTHERS PLAINTIFFS;THE COMMONWEALTH OF AUSTRALIA
AND
AND OTHERS DEFENDANTS.LAWLOR PLAINTIFF;
ANDTHE COMMONWEALTH OF AUSTRALIA
AND ANOTHER DEFENDANTS.