Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 [30] .

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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 [31] , Wesberry v. Sanders [32] , Kirkpatrick v. Preisler [33] andWhite v. Weiser [34] . 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 [32] . The later decisions of Kirkpatrick v. Preisler [33] and White v. Weiser [34] merely apply the first of these decisions. Examination of the reasons for judgment in Wesberry v. Sanders [32] 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 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.

1. (1962) 369 U.S. 186 [7 Law. Ed. 2d 663]. 2. (1964) 376 U.S. 1 [11 Law. Ed. 2d 481]. 3. (1969) 394 U.S. 526 [22 Law. Ed. 2d 519]. 4. (1973) 412 U.S. 783 [37 Law. Ed. 2d 335]. 5. (1964) 376 U.S. 1 [11 Law. Ed. 2d 481]. 6. (1969) 394 U.S. 526 [22 Law. Ed. 2d 519]. 7. (1973) 412 U.S. 783 [37 Law. Ed. 2d 335]. 8. (1964) 376 U.S. 1 [11 Law. Ed. 2d 481].

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.

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.

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.

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.

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.

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 [35] .

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 an 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. Of 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.

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"?

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 orginal State.

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.

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.

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.

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.

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 now be described as a choice by the people.

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.

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.

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.

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.

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. [36] .

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 33⅓ 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.

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 [1] . 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. [2] ).

1. (1964) 376 U.S. 1 [11 Law. Ed. 2d 481]. 2. (1964) 376 U.S., at p. 19 [11 Law. Ed. 2d, at p. 493].

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 [3] . In White v. Weiser [4] 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.

1. (1969) 394 U.S. 526 [22 Law. Ed. 2d 519]. 2. (1973) 412 U.S. 783 [37 Law. Ed. 2d 335].

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 an 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.

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.

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.

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 [5] and the Petroleum and Minerals Authority Case [6] 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 [7] . 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 [8] ; Lichfield Election Petition [9] ; 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 [10] 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.

1. (1974) 131 C.L.R. 432. 2. (1975) 134 C.L.R. 81. 3. (1703) 2 Ld. Raym. 938 [92 E.R. 126]. 4. (1869) 19 L.T. 723, at p. 725. 5. (1869) 20 L.T. 11. 6. (1604) 2 S.T. 91.

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) [11] . 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 [12] - 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.

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 theRepresentation 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.

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.

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.

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 [13] , 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.

1. (1972) 128 C.L.R. 221, at pp. 229-230, 260, 267.

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 [14] , 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.

1. (1962) 369 U.S. 186, at pp. 302-307 [7 Law. Ed. 2d 663, at pp. 735-738].

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.

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 [15] ; Kirkpatrick v. Preisler [16] ; Wells v. Rockefeller [17] , and White v. Weiser [18] . 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 [19] ) - a "context" which Harlan J., who dissented, thought bore "little resemblance to the evidence found in the pages of history" [20] . 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 [21] ) 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.

1. (1964) 376 U.S. 1 [11 Law. Ed. 2d 481]. 2. (1969) 394 U.S. 526 [22 Law. Ed. 2d 519]. 3. (1969) 394 U.S. 542 [22 Law. Ed. 2d 535]. 4. (1973) 412 U.S. 783 [37 Law. Ed. 2d 335]. 5. (1964) 376 U.S., at pp. 7-8, 17 [11 Law. Ed. 2d, at pp. 486-487, 492]. 6. (1964) 376 U.S., at p. 24 [11 Law. Ed. 2d, at p. 496]. 7. (1964) 377 U.S. 533, at p. 624 [12 Law. Ed. 2d 506, at p. 563].

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.

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.

By s. 2 of the Representation Act it is provided as follows:

For the purpose of determining the number of Members 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. Section 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: The numbers of the people shall be ascertained as on 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.

By 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: When in pursuance of a certificate under this Act an 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.

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 be made in the manner hereinbefore provided whenever directed by the Governor-General by proclamation.

(a) whenever an alteration is made in the number of Members of the House of Representatives to be elected for the State;

This 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.

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.

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.

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.

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.

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.

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.

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.

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 [22] . 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.

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.

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.

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.

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.

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.

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".

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.

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 Houses 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.

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.

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 criminality 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 multimember 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.

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.

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.

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.

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 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.

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.

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 multimember 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Part III of Ch. I 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 [22a] ). 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.

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.

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.

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.

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 [23] . 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.

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.

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.

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.

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.

The material put before the Court included some of the latest Commonwealth statistics of population and electors.

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.

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.

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 Electors Division 30.6.71 2.12.72 18.5.74 26.9.75 Adelaide 99,721 55,685 61,117 61,685 Angas 86,306 49,965 55,513 58,218 Barker 93,256 54,265 62,101 65,739 Bonython 128,497 66,962 79,496 86,682 Boothby 89,768 57,627 62,087 62,557 Gray 103,837 51,589 57,384 60,153 Hawker 93,571 56,089 60,794 61,745 Hindmarsh 102,570 57,601 63,523 64,655 Kingston 100,024 61,258 70,950 75,353 Pt Adelaide 95,647 55,328 60,835 61,981 Sturt 101,431 58,861 67,503 71,083 Wakefield 77,195 45,861 49,003 50,742

It was further claimed, on behalf of South Australia and its coplaintiffs (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.

The history of these proceedings is set out in the judgment of the Chief Justice.

The main question is whether the Australian Constitution guarantees electoral democracy.

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.

They contend that this right to equal representation is guaranteed by the phrase "chosen by the people" in s. 24 of the Constitution.

Great rights are often expressed in simple phrases.

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 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.) These 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:

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

The Meaning of"By the People" in theUnited States Constitution

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 [24] ; Wells v. Rockefeller [25] ; Kirkpatrick v. Preisler [26] ; White v. Weiser [27] ).

1. (1964) 376 U.S. 1 [11 Law. Ed. 2d 481]. 2. (1969) 394 U.S. 542 [22 Law. Ed. 2d 535]. 3. (1969) 394 U.S. 526 [22 Law. Ed. 2d 519]. 4. (1973) 412 U.S. 783 [37 Law. Ed. 2d 335].

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 [28] :

We hold that, construed in its historical context, the command 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 [29] . 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. and later [30] : No right is more precious in a free country than that of 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 [31] .

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.

The 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 [32] ). 1. (1964) 376 U.S., at pp. 7-9 [11 Law Ed. 2d, at pp. 486-487]. 2. (1963) 372 U.S. 368 [9 Law. Ed. 2d 821]. 3. (1964) 376 U.S., at pp. 17-18 [11 Law. Ed. 2d, at p. 492]. 4. (1963) 372 U.S., at p. 381 [9 Law. Ed. 2d., at p. 831]. 5. (1969) 394 U.S., at pp. 531, 533 [22 Law. Ed. 2d, at pp. 524-525, 526].

Brennan J. was joined by Douglas J. and Marshall J. in White v. Regester where he said [33] :

it is important to understand that the demand for precise 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. In Gray v. Sanders, the Court said [34] : The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing - one person, one vote. In Reynolds v. Sims [35] , a State reapportionment case based on the Equal Protection Clause, the Court made a relevant observation [36] : 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. 1. (1973) 412 U.S. 755, at pp. 780-781 [37 Law. Ed. 2d 374, at pp. 333-334]. 2. (1963) 372 U.S., at p. 381 [9 Law. Ed. 2d, at pp. 830-831]. 3. (1964) 377 U.S. 533 [12 Law. Ed. 2d 506]. 4. (1964) 377 U.S., at p. 562 [12 Law. Ed. 2d, at p. 527].

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 interpreting 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 [37] .)

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 [38] calls "the silent operation of constitutional principles". (The Commonwealth v. Kreglinger, per Isaacs J. [39] .)

1. (1889) 14 App. Cas. 286, at p. 293. 2. (1926) 37 C.L.R. 393, at p. 413.

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. [40] .)

1. (1945) 71 C.L.R. 29, at p. 85.
   1. (1908) 6 C.L.R. 309, at pp. 367-368.
   2. (1889) 14 App. Cas. 286, at p. 293.
   3. (1926) 37 C.L.R. 393, at p. 413.
   4. (1945) 71 C.L.R. 29, at p. 85.

The House of Representatives. This name implies an organ of popular representative government.

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 philosophy 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).

Directly. This is clearly intended to ensure a direct popular election, allowing no intermediary, such as an electoral college.

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.

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.

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).

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.

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.

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.

" Shall be in proportion to the respective numbers of their people ". This is a command also taken from the United States Constitution.

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.

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.

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.

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 attempt at precise mathematical equality, or justification for departure from such a standard).

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".

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.

(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 are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power. (My emphasis.) (Ibid., p. 329.)

(c) The reference is to the "people of the Commonwealth", which emphasizes the intention of sharing of political power.

(d) The absence of any other means of redress for those deprived of an equal share of representation, even where it is grossly unequal. The argument was advanced that no guarantee of electoral equality should be read into the Constitution because it was left exclusively to the Parliament to do what was fair. If Parliament failed, the remedy was with the people. The hollowness of this argument has been made apparent by the history of maldistribution in the United States and in Australia. If the legislature fails to ensure fairness, and there is no constitutional right enforceable in the courts, where is the remedy? There is no provision for referendum or any other remedy which can be initiated by the people. Redistributions in Australia can be and have been delayed by the simple inaction of one House (see Paterson, Federal Electorates and Proportionate Distribution, Australian Law Journal, vol. 42 (1968), p. 127). History here and elsewhere reveals that with few exceptions, legislators who hold office because of an unbalanced electoral system will not act to change the system. The more unbalanced it becomes, the more severe are the consequences of correction and the more reluctant are the legislators to change it.

The fact that the phrase was taken directly from the United States Constitution. The construction placed upon it by the United States Supreme Court that it commands electoral equality is compelling in its reasoning and applicable to our Constitution.

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.

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.

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.

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.

As Jefferson said, Writings, Washington ed. (1859), vol. 4, p. 506:

Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction.

(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: 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. Wesberry v. Sanders [41] .

(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.

1. (1964) 376 U.S., at p. 8 [11 Law. Ed. 2d, at p. 487].

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.

In the absence of other provision, each State shall be one electorate.

Section 30 states: 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.

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 Statewide 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.

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.

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.

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.

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.

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.

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.

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.

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 [42] , quoting Nixon v. Herndon [43] ). And in Wesberry v. Sanders [44] , the opinion of the United States Supreme Court was:

we made it clear in Baker [45] that nothing in the language of that article gives support to a construction that 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 [46] . Cf. Gibbons v. Ogden [47] . The right to vote is too important in our free society 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". 1. (1962) 369 U.S. 186, at p. 209 [7 Law. Ed. 2d 663, at p. 681]. 2. (1927) 273 U.S. 536, at p. 540 [71 Law. Ed. 759, at p. 761]. 3. (1964) 376 U.S., at pp. 6-7 [11 Law. Ed. 2d, at p. 486]. 4. (1962) 369 U.S. 186 [7 Law. Ed. 2d 663]. 5. (1803) 1 Cranch 137 [2 Law. Ed. 60]. 6. (1824) 9 Wheat 1 [6 Law. Ed. 23].

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 [48] ; Tonkin v. Brand [49] ; Lindell, Judicial Review and the Composition of the House of Representatives, Federal Law Review, vol. 6 (1974), p. 8).

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.

The United States Supreme Court in Baker v. Carr said [50] :

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. 1. (1962) 369 U.S., at p. 204 [7 Law. Ed. 2d, at pp. 707-708].

The Court should not prevent the people of Australia from seeking to establish or enforce political rights by judicial processes.

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.

Section 19 of the Act (as amended by No. 38 of 1974) provides:

In making any proposed distribution of a State into Divisions, 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;

(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. 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.

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.

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.

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.).

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.

As ss. 24 and 25 would allow the Constitution to be contravened, I would declare each invalid.

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.

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.

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.

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.

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.

The demurrers by the defendants should be overruled.

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.

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.