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

Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth - [1975] HCA 53 - HCA 1975 case summary — Zoe

[16]

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.

[41]

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.

[56]

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.

[94]

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.

[104]

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.

[117]

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.

[119]

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.

[122]

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.

[140]

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.

[205]

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] .

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