McGinty v Western Australia

McGinty v Western Australia - [1996] HCA 48 - HCA 1996 case summary — Zoe

[35]

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. This section has a dual operation. Its first operation is to prescribe what the new elements of the Federal polity - the States - shall be. When the people of the Australian Colonies were united in the Commonwealth of Australia by the proclamation made pursuant to Covering Cl 3 and those Colonies became Original States of the Commonwealth by operation of Covering Cl 6, the Colonies - the old constitutional entities - acquired a new constitutional status. They became States, as the text of ss 107 and 108 shows, deriving their existence as States from the Commonwealth Constitution [30] . Secondly, s 106 conferred on the respective States substantially the Constitutions of the antecedent Colonies [31] . The same Constitutions as had been conferred on the Colonies prior to 1 January 1901 were continued as the Constitutions of the respective States thereafter, subject to such modifications as were effected by the Commonwealth of Australia Constitution Act 1900 Imp and the Commonwealth Constitution. As Barwick CJ said in New South Wales v The Commonwealth [32] : On the passage of the Imperial Act, those colonies ceased to be such and became States forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and powers were to continue by virtue of the Commonwealth Constitution. 1. Victoria v The Commonwealth (1971) 122 CLR 353 at 371 2. China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 182 3. (1975) 135 CLR 337 at 372; see also Victoria v The Commonwealth (1971) 122 CLR 353 at 371-372 China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 182

[52]

Since the 1889 Act was assented to in 1890 pursuant to the Western Australian Constitution Act 1890 Imp, the electoral laws of Western Australia have been taken out of the 1889 Act where they were confirmed for the purposes of the then new Constitution of the State [54] . The laws relating to the distribution of electoral divisions were to be found in a number of different Acts in succession. In the 1899 Act, provision was made in ss 5 and 6 for Electoral Provinces for the election of the Council and in ss 18 and 19 for Electoral Districts for the election of the Assembly. Further distributions of Electoral Provinces and Electoral Districts were made by the Redistribution of Seats Acts of 1904, 1911 and 1929, the Electoral Districts Act 1922 and the Electoral Districts Act Amendment Act 1928. The 1947 Act introduced new provisions for the division of the State into Electoral Provinces for the election of the Council and Electoral Districts for the election of the Assembly. These provisions were themselves altered by the Electoral Districts Act Amendment Acts of 1955, 1963, 1965 and 1975. The last-mentioned Act (the 1975 Amendment) directed Electoral Commissioners to divide the Metropolitan Area into twenty-seven Electoral Districts and to divide the Agricultural, Mining and Pastoral Area into twenty-four Electoral Districts [55] , leaving the North-West-Murchison-Eyre Area with four Electoral Districts [56] . The "quota of electors in each area" [57] was to be taken as the basis for electoral districts, but a margin of allowance of 10 per cent in the Metropolitan Area and 15 per cent in the Agricultural, Mining and Pastoral Area was prescribed [58] . Sixteen Electoral Provinces for the election of the Council were to be distributed in stated numbers among the three Areas: the Metropolitan Area, the Agricultural, Mining and Pastoral Area and the North-West-Murchison-Eyre Area [59] . These were the provisions in force when s 73(2)(c) was inserted in the 1889 Act in 1978. In their operation these provisions authorised and perhaps required a disparity in voting power in respect of both elections for the Council and elections for the Assembly.

[54]

From before Federation, the State has been so divided into electoral districts for the election of the Assembly and electoral provinces or regions for the election of the Council that there has been inequality in the voting power of electors in different parts of the State. Throughout this time, the holders of the franchise as it stood from time to time have directly chosen the members of the Council and the Assembly for their respective electoral districts and provinces. When s 73(2)(c) was inserted in the 1889 Act in 1978, it is impossible to suppose that the Parliament of Western Australia intended thereby to override the regime of electoral districts and provinces which were then, and had historically been, the electoral framework of the State. The language of s 73(2)(c) must be construed in the light of the constitutional history of the State and the circumstances existing when that provision was introduced [60] . The purpose of that provision was not the creation of a new electoral regime; it was simply privative of the uncontrolled or partly-controlled power of constitutional amendment vested in the Parliament by s 73(1). The material purpose of the 1978 Act was expressed in its preamble as the making of further constitutional provision "to confirm the established constitutional provision aforesaid [relating to the Council, the Assembly and their powers] and to regulate the manner and form in which the powers of the Parliament of Western Australia may hereafter be exercised". Having regard to the history of the State's electoral laws and the context and operation of s 73(2)(c), it is impossible to find an implication other than the entrenchment of the system of electing members of the Council and the Assembly by direct popular vote. To find in s 73(2)(c) an implication that electoral power be equally distributed among the people of the State or among the people of the State possessing the franchise would be to find a legislative intention destructive of the means by which the enacting Parliament was elected.

[72]

In those cases, a majority of the Court distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication. That implication does not extend to freedom of expression generally [69] . The limited scope of the freedom was expressed in various ways by the members of the Court. It was described as "freedom of communication, at least in relation to public affairs and political discussion" [70] , "freedom to discuss governments and political matters" [71] , "freedom of communication about the government of the Commonwealth" which "extends to all political matters", including "matters relating to other levels of government" [72] , "freedom of political discourse" [73] and "freedom of participation, association and communication in relation to federal elections" [74] . Mason CJ, Toohey and Gaudron JJ went on in Theophanous [75] to say that it was necessary in considering the expression "political discussion" to bear in mind "that the underlying purpose of the freedom is to ensure the efficacious working of representative democracy". Deane and Toohey JJ had expressed a similar view in Australian Capital Television [76] where they said that "it is an implication of the doctrine of representative government embodied in the Commonwealth Constitution that there shall be freedom within the Commonwealth of communication about matters relating to the government of the Commonwealth". They continued: "the implication is drawn from an underlying doctrine of the Constitution rather than from any express term." 1. (1994) 182 CLR 104 at 120-121. 2. cf the First Amendment to the Constitution of the United States which reads: "Congress shall make no law abridging the freedom of speech, or of the press." 3. Australian Capital Television (1992) 177 CLR 106 at 138, 142, per Mason CJ. 4. Nationwide News (1992) 177 CLR 1 at 50, per Brennan J. 5. Australian Capital Television (1992) 177 CLR 106 at 169, per Deane and Toohey JJ. 6. Australian Capital Television (1992) 177 CLR 106 at 214, per Gaudron J. 7. Australian Capital Television (1992) 177 CLR 106 at 227, per McHugh J. 8. (1994) 182 CLR 104 at 123. 9. (1992) 177 CLR 106 at 168.

[74]

I can find no support in the Constitution for an implication that the institution of representative government or representative democracy is part of the Constitution independently of the terms of ss 1, 7, 24, 30 and 41 of the Constitution. I think that all that can fairly be said is that those sections of the Constitution give effect to the political institution of representative government. But neither logic nor the efficacy of those sections or the federal system itself implies that independently of those sections the institution of representative government or representative democracy is itself part of the Constitution. The concept of representative democracy or representative government (and the latter is the more precise expression [78] ) does not have any necessary characteristics other than an irreducible minimum requirement that the people be "governed by representatives elected in free elections by those eligible to vote" [79] . Stephen J recognised as much in McKinlay when he observed that [80] : 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. Sections 1, 7, 8, 16, 24 and 30 of the Constitution provide for the minimum requirements of representative government but do not purport to go significantly further. The Constitution also provides for the maintenance of equal representation of the Original States in the Senate and a minimum number of senators for each Original State (s 7), the rotation of senators (s 13), the filling of casual Senate vacancies (s 15), the disqualification of members (s 44), disputed elections (s 47) and certain other matters of machinery. It further provides in s 41 that no adult person who has or acquires a right to vote for the more numerous House of Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. Each elector has only one vote (ss 8, 30). Otherwise the form of representative government which we are to have is left to parliament, provision being made until parliament otherwise provides. (See ss 7, 8, 9, 16, 22, 24, 29, 30, 31, 34, 39, 46, 47, 48, 49.) In particular, it is left to parliament to make laws determining the electoral divisions for which members of parliament may be chosen. The only limitation is that a division shall not be formed out of parts of different States. (See ss 7, 9, 29.) In providing for those matters which are confided to it, parliament is required to determine questions of a political nature about which opinions may vary considerably. For example, the qualifications of electors are to be provided for by parliament under ss 8 and 30 and may amount to less than universal suffrage, however politically unacceptable that may be today. Thus, it may be seen that the form of representative government, including the type of electoral system, the adoption and size of electoral divisions, and the franchise are all left to parliament by the Constitution. 1. Theophanous (1994) 182 CLR 104 at 199 2. See Theophanous (1994) 182 CLR 104 at 189, per Dawson J; at 199-201, per McHugh J. 3. See Theophanous (1994) 182 CLR 104 at 201, per McHugh J; and Birch, Representative and Responsible Government: An Essay on the British Constitution (1964), p 15. 4. McKinlay (1975) 135 CLR 1 at 56

[329]

The ordinary principles of statutory interpretation require that the text be the starting point of any interpretation of the Constitution. Part of the ordinary and natural meaning of the text is any implication which is "manifested according to the accepted principles of interpretation" [292] . Implications derived from the structure of the Constitution are also part of the Constitution's meaning but such implications may be drawn only when they are "logically or practically necessary for the preservation of the integrity of that structure" [293] . Thus, because the Constitution has prescribed a system for elections to the Houses of the federal Parliament, no Australian government can pass laws which would undermine the efficacy of that system [294] . However, I cannot accept, as Deane and Toohey JJ held in Nationwide News Pty Ltd v Wills [295] , that a constitutional implication can arise from a particular doctrine that "underlies the Constitution". Underlying or overarching doctrines may explain or illuminate the meaning of the text or structure of the Constitution but such doctrines are not independent sources of the powers, authorities, immunities and obligations conferred by the Constitution. Top-down reasoning [296] is not a legitimate method of interpreting the Constitution. As I pointed out in Theophanous v Herald & Weekly Times Ltd [297] , after the decision of this Court in the Engineers' Case [298] , the Court had consistently held, prior to Nationwide News and Australian Capital Television Pty Ltd v The Commonwealth [299] , that it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or are not necessary implications from its structure. I pointed out that the Engineers' Case had made it plain that the Constitution was not to be interpreted by using such theories to control or modify the meaning of the Constitution unless those theories could be deduced from the terms or structure of the Constitution itself. It is the text and the implications to be drawn from the text and structure that contain the meaning of the Constitution. With all due respect to the judges of this Court who have held that there is a free-standing principle of representative democracy in the Constitution, their conclusion necessarily involves a rejection of the principles of interpretation laid down in the Engineers' Case [300] although perhaps not the philosophy that lies behind that decision [301] .

[384]

The extent of the franchise in the various colonies at the time of federation also make it highly unlikely that the words "chosen by the people" were intended to imply equality of voting power for individual electors. As I have pointed out, until the federal Parliament legislated, s 30 made the qualifications of electors in the more numerous House of Parliament of a State the qualifications for federal elections for the House of Representatives in that State. There were very large differences in the franchises in each State. In New South Wales, only men were entitled to vote [329] . In Victoria, only men over the age of twenty-one who were natural born British subjects or naturalised subjects of three years standing with at least one of those years spent in the State were entitled to vote. It was also a condition of the entitlement to vote in that State that a voter should own land with an annual value of £10 or hold a lease of land that was rated with an annual value of £25. University graduates and members of certain occupations were also given a right to vote [330] . In Queensland, only male British subjects over the age of twenty-one were entitled to vote. A voter had to be resident in an electoral district or own land in the district valued at £100 or hold a lease or licence of land in the district of a clear annual value of at least £10. While an elector could vote only once in a district, he was entitled to vote in more than one district if he was qualified. Military personnel and police officers were disqualified from voting while aboriginals of Australia, India, China or the South Sea islands had to meet a freehold property requirement [331] . In Western Australia, both men and women were entitled to vote but property qualifications applied [332] . In Tasmania only British subjects over the age of twenty-one were entitled to vote. Property or other qualifications were additional requirements [333] . In South Australia, men and women over the age of twenty-one were entitled to vote but in elections for the Legislative Council only if certain property requirements were met [334] .

[401]

See, eg, Bogdanor (ed), The Blackwell Encyclopaedia of Political Institutions, (1987), pp 532-534. 2. See Australia, Final Report of the Constitutional Commission (1988), vol 1, p 154: "We recognise that one vote one value is a controversial issue in Australia. As the evidence suggests, perceptions of the democratic process vary considerably. However, we believe one vote one value is right in principle. Further, we are concerned with what is appropriate for Australia. We appreciate the problems of distance experienced in isolated areas. But these are less significant now and can be overcome largely by such things as providing elected representatives with appropriate transport and communication facilities and electoral allowances. Besides, the same arguments could be used on behalf of those Australian citizens who suffer other disadvantages, such as poverty. The fundamental principle is that Parliamentary democracy is concerned with the representation of electors." 3. Referendum held on 18 May 1974 on the proposed law for the alteration of the Constitution entitled "Constitution Alteration (Democratic Elections) 1974". 4. Brugger and Jaensch, Australian Politics: Theory and Practice (1985), p 214; Australian Government Gazette, No 50c, 19 June 1974. 5. The proposed s 124C provided: "(1) Where a law provides for electoral divisions in an electoral region, the divisions shall be determined so that the number of electors in each division does not depart to a greater extent than one-tenth more or one-tenth less from the number calculated under subsection (2). (2) For the purposes of subsection (1), a number, in relation to a particular electoral division, shall be calculated by: (a) dividing the total number of electors in all the electoral divisions in the electoral region by the total number of members to be chosen in all those divisions; and (b) multiplying the result by the numbers of members to be chosen for that electoral division." 6. Australian Electoral Commission, 1988 Referendums: Statistics (1988), p 1.

[416]

Conversely, inequality in the numerical sizes of electoral divisions does not necessarily mean a party is unfairly represented. Even when electoral divisions are skewed in the manner in which the electoral divisions are skewed in Western Australia, the number of seats obtained by the major political parties frequently represent a rough approximation of the first preference vote of that party. Thus in the 1993 Western Australian election in the Legislative Assembly the Liberal Party gained twenty-six seats, the Labor Party twenty-four seats, the National Party six seats, the Greens (WA) and Australian Democrats no seats and an Independent one seat. The Liberal Party gained 44.15 per cent of the first preference votes and 45.61 per cent of the seats; the Labor Party gained 37.08 per cent of the vote and 42.11 per cent of the seats. Thus, although the electoral distribution in Western Australia is weighted against the metropolitan seats where the Labor Party might be expected to have the largest share of its vote, it gained a greater percentage of seats than its share of the vote. This was achieved even though the National Party which gained 5.31 per cent of the vote obtained 10.53 per cent of the seats. However, the Greens (WA) which obtained 4.31 per cent of the vote obtained no seats [356] . If a Statewide proportional representation system had been in use, the Liberal Party would have gained 47.4 per cent of the seats, giving that party an additional seat. The Labor Party would have gained 40.3 per cent of the vote, giving them one less seat. The National Party would have received 5.3 per cent of the seats, giving them three less seats. The Greens (WA) would have obtained 5.3 per cent, giving them three seats. The Australian Democrats would have gained 1.7 per cent of the seats giving them one seat [357] . A fairly similar result would have obtained by applying a Statewide proportional representation system to the Legislative Council election. This would have resulted in the Liberal Party gaining one seat, the Labor Party losing one seat, the National Party losing two seats and the Greens (WA) and the Australian Democrats gaining one seat each. Under the present system operating in Western Australia, the beneficiaries would seem to be the Labor Party and the National Party, notwithstanding that the Labor Party's voters are probably concentrated in the Metropolitan Area while the National Party's voters are concentrated in the non-metropolitan area. The losers are the Liberal Party, the Greens (WA) and the Australian Democrats. A Statewide proportional system rather than equality of numbers in electoral divisions would seem necessary to obtain equality of representation in the Parliament of Western Australia because, whatever the size of those divisions, the minor parties seem unlikely to obtain their fair share of parliamentary representation.

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