Attorney-General (Cth); Ex rel McKinlay v The Commonwealth - [1975] HCA 53

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

ATTORNEY-GENERAL (CTH); Ex rel. MCKINLAY v. THE COMMONWEALTH ;

(1975) 135 CLR 1

1 December 1975

Constitutional Law (Cth)—High Court

Constitutional Law (Cth)—Parliament—House of Representatives—Members—Elections—Requirement that members be "chosen by the people of the Commonwealth"—Electoral divisions—Whether equal numbers of people or electors required within divisions—Requirement that number of members be in proportion to number of people—Manner in &hich number of members should be ascertained—Validity—Reference to census—Alteration in number of members delayed until divisions redistributed—The Constitution (63 &64 Vict. c. 12), ss. 24,* 25, 26, 27, 28, 29,* 30, 31, 32—Commonwealth Electoral Act 1918-1975 (Cth), ss. 18, 19, 24, 25—Representation Act 1905-1974 (Cth), ss. 2, 3, 4, 10, 12—Census and Statistics Act 1905-1973 (Cth). High Court—Jurisdiction—Actions for declarations of invalidity of Commonwealth election laws—Action by Attorney-General of State—Action by individual—Allegation of failure to comply with constitutional requirements that members be chosen by people of the Commonwealth and that number of members be proportionate to number of people—Whether justiciable—Locus standi of plaintiffs. * Section 24 of the Commonwealth Constitution provides: "24. The House of Representatives shall be composed of members directly 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 the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State." Section 29 provides: "29. Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States."

Decisions

December 1.
The following written judgments were delivered:-
BARWICK C.J. The Court heard together three demurrers each to the whole of the statement of claim in each of three suits in which the Commonwealth of Australia and Francis Lyell Ley the Chief Australian Electoral Officer appointed under the Australian Electoral Office Acts, 1973 were the defendants. Each suit challenged the validity of parts of the Commonwealth Electoral Act, 1918-1975 ("the Electoral Act"). Two of them, as the result of amendments to the respective statements of claim, challenge the validity of the Representation Act, 1905-1973 ("the Representation Act"). (at p13)

2. One suit was brought by the Attorney-General for Australia upon the relation of Brian John McKinlay, a resident of the State of Victoria and a voter registered on the electoral roll of the electoral division of Diamond Valley in the State of Victoria. By the statement of claim in this suit it is alleged that the electoral division of Diamond Valley in the State of Victoria contains a number of people, or alternatively a number of electors, which number is not as nearly as practicable the same as the number of people, or alternatively of the number of electors, in other electoral divisions of that State. Of this disparity, particulars are given. (at p13)

3. It is further alleged that the defendants threaten and intend to cause the next election of the House of Representatives to take place without any further distribution of the States into divisions or alternatively that they threaten and intend to make a further distribution of the State of Victoria and other States into divisions pursuant to the provisions of the Electoral Act and, thereafter, to cause the next election of members of the House of Representatives to take place in accordance with such further distribution. (at p13)

4. Asserting that the provisions of s. 19 of the Electoral Act are therefore contrary to s. 24 of the Constitution and invalid, the plaintiff in this suit seeks:
1. A declaration that the boundaries of the electoral division of Diamond Valley are not fixed according to law.
2. A declaration that so far as ss. 18, 18A, 19, 23, 23A and 24 of the Electoral Act purport to authorize the making of a proposed distribution of the State to determine that the divisions of the numbers of whose people, or alternatively electors, are not as nearly as is practicable the same, the sections are invalid.
3. A declaration so far as the said sections of the Act purport to authorize the determination by the Parliament that members of the House of Representatives may be chosen to represent electoral divisions, numbers of whose people, or alternatively electors, are not as nearly as is practicable the same, the sections are invalid.
4. A declaration that unless and until the State of Victoria and each other State is divided into electoral divisions the respective total numbers of whose people, or alternatively electors, are as nearly as is practicable the same, the said State and each other State shall for the purposes of any election of members of the House of Representatives each be one electorate. (at p14)

5. The plaintiff further seeks an injunction to restrain the defendants holding or conducting any election for the House of Representatives other than an election in which the electoral divisions within each State are electoral divisions the numbers of whose people, or alternatively electors, are as nearly as is practicable the same or, alternatively, an election pursuant to s. 29 of the Constitution upon the basis that each State shall be one electorate. (at p14)

6. Another of these suits is brought by the State of South Australia, its Attorney-General and one Christine Anne Goodchild, the last-named being resident in and enrolled for the electoral division of Bonython in that State and entitled to vote as an elector of that division. The Divisional Returning Officer for the electoral division of Bonython appointed pursuant to the Electoral Act is joined as an additional defendant in this suit. The statement of claims alleges that a distribution of the States of New South Wales, Victoria, South Australia, Western Australia and Tasmania into electoral distributions was proclaimed on 21st November 1968, and that the distribution of Queensland into electoral divisions was proclaimed on 27th February 1969, and that no later distributions have been made with respect to any of the States of Australia; that general elections for the House of Representatives were held in 1972 and in 1974 but no general election has been held since; that the electoral divisions in the State of South Australia are not, and for several years at the least have not been, as nearly as practicable of numerically equal size, with respect to either the people or the electors of the Commonwealth residing in them. Particulars of this allegation are given. It is further alleged generally that there is a disparity of size between the divisions both with respect to the number of people and the number of electors of a similar kind that was described in the case of South Australia in the States of New South Wales, Victoria, Queensland, Western Australia and Tasmania respectively. There are, as in the statement of claim in the first-mentioned case, assertions that the defendants intend to hold elections without there having been distribution of divisions in all the States which will be substantially, or as near as is practicable, equal in size either as to the number of people or as to numbers of electors. (at p15)

7. These plaintiffs claim similar declarations to those which I have already detailed but in addition, they seek a declaration that ss. 24 and 25 of the Electoral Act, in so far as they would enable a redistribution of a State into electoral divisions to be delayed for more than a reasonable time after the existing divisions have ceased to be as nearly as practicable or numerically equal in size, are invalid. Injunctive relief of the same kind as that which I have already mentioned in the case of the first suit is also claimed. (at p15)

8. Upon the demurrers being called for hearing before the Court, the plaintiffs in this second suit sought and were given leave to amend their statement of claims in order to challenge the validity of the Representation Act. The amendment alleges that the determination of the number of members of the House of Representatives to be chosen in the several States was made in accordance with the provisions of the Representation Act in September 1972 and no determination has since been made. These plaintiffs in their amended statement of claim seek a declaration that the Representation Act, in so far as it fails to require the number of members to be chosen in the several States to be in proportion to the respective numbers of their people and purports to admit the provisions of s. 24 of the Constitution to be contravened, is invalid. (at p15)

9. The third of the suits was brought by Mary Bridget Lawler who is enrolled as an elector for the election of members of the House of Representatives upon the roll for the electoral division of MacPherson in the State of Queensland. The statement of claim alleges that the number of electors enrolled for the electoral division of MacPherson on 18th May 1974 was grossly in excess of the quota obtained by dividing the number of electors by the number of members which the plaintiff claims the people of Queensland were then entitled to have for the House of Representatives. (at p15)

10. The 18th May 1974 was a date on which an election for the House of Representatives was held and a member for the electoral division of MacPherson, elected. The plaintiff alleged that the electoral divisions into which Queensland is divided do not comprise and have not at any material time since the date of the last distribution of that State into electoral divisions comprised, electors whose respective total numbers are as nearly as is practicable equal. Particulars of this allegation are given. It was then alleged that by reason of this inequality in electors within each division "the weight which a vote cast by the plaintiff had or has or will have in the election of a member of the House of Representatives is significantly less than that of the vote of each elector in any other electoral division in the State" and that "the member of the House of Representatives elected for the electoral division of MacPherson represents a significantly greater number of electors than members of the House of Representatives elected for any other electoral division in the State". This plaintiff asserts that it was at all material times reasonably practicable for the State to be divided into electoral divisions in such manner as to secure more equal voting weight to electors. This plaintiff seeks declarations that: s. 19 of the Electoral Act is ultra vires the Constitution because it enables an electoral division to be under-represented and/or permits discriminatory representations and purports to fix the weight and composition of the electoral divisions within the State and, in the alternative, that at the time of the federal election for the division of MacPherson in May 1974 the said division consisted of a number of qualified electors in excess of the variation provided for above or below the electoral quota as contained in s. 19 of the Electoral Act and that the plaintiff is and has at all material times been deprived of the representation provided by virtue of the relevant enactment as aforesaid. The plaintiff also seeks another declaration substantially in the terms as one of those to which I have already referred and seeks substantially the same injunctive relief. (at p16)

11. This plaintiff also sought and obtained leave to amend the statement of claim in terms identical to the amendment sought and granted in the suit brought by the State of South Australia. (at p16)

12. The counsel for the defendants in each of the suits announced at the outset that he was instructed not to submit that any of the plaintiffs lacked sufficient interest to maintain their respective suits. (at p16)

13. The Court gave leave to the States of Western Australia, Victoria, New South Wales and Queensland to intervene to support the validity of the legislation which the suits attacked. (at p16)

14. The principle submission as to the invalidity of the Electoral Act supported by all the plaintiffs was that there is to be found or implied in s. 24 of the Constitution a guarantee that if the States of Australia should be divided into divisions for the purpose of choosing members of the House of Representatives, such divisions shall comprise an equal number of people or, as it was put, such divisions shall be of "practical equality" in numbers of people. (at p17)

15. An alternative submission was that, in the given circumstances, such divisions should be comprised of equal numbers of electors. A further alternative submission, in order to provide for the possibility of the States or some of them being divided into multiple member electoral divisions, was that every division should be practically equal in the number of people, or alternatively, of electors, per member to be chosen for the division. (at p17)

16. This guarantee was sought to be derived either by implying the word "all" before the word "people" in the first paragraph of s. 24 or by regarding the total expression "directly chosen by the people" as necessarily involving the concept of each person having an equal vote in an election for the House of Representatives, or by a combination of both courses. (at p17)

17. The problem which is thus presented to the Court is a matter of the legal construction of the Constitution of Australia, itself a legal document; an Act of the Imperial Parliament. The problem is not to be solved by resort to slogans or to political catch-cries or to vague and imprecise expressions of political philosophy. The question of the validity of an Act of the Parliament, namely, the Electoral Act, is to be decided by the meaning of the relevant text of the Constitution having regard to the historical setting in which the Constitution was created and the terms and operation of the Act in respect of the subject matter which, upon that construction, is committed by the Constitution to the Parliament. The only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically, but as a whole: and to find its meaning by legal reasoning. I respectfully agree with Sir Owen Dixon's opinion that "there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism". In case of ambiguity or lack of certainty, resort can be had to the history of the colonies, particularly in the period of and immediately preceding the development of the terms of the Constitution. But it is settled doctrine in Australia that the records of the discussions in the Conventions and in the legislatures of the colonies will not be used as an aid to the construction of the Constitution. (at p17)

18. Though the true construction of s. 24 is the principal matter for consideration, it is necessary in order to resolve it to examine the provisions of the whole of Pt III of the Constitution. (at p17)

19. The expression in s. 24 "chosen by the people of the Commonwealth" has its counterpart in s. 7 where the expression is "directly chosen by the people of the State". Until the Parliament should otherwise provide, each State is to be one electorate. The original States, which are still the only States, are to elect an equal number of senators. The relative populations of the States have always varied very considerably. Thus, there could be no question that equality of voting strength throughout Australia was intended or provided for in s. 7. The expression in that section refers to the people of the State. This cannot mean that all the people of the States are to have a vote in a Senate election. If the people of the State is equated with the population, it would be both an unreasonable and impractical interpretation of the expression to read it as securing the franchise to every child and teenager in the population. If, on the other hand, the word "people" is read as referring to the electors of the State, it is quite evident from other provisions of Pt III that adult suffrage in each State was not intended or required by the expression "directly chosen by the people". Section 8 provides that the franchise for election of senators shall be that which is prescribed by the Constitution or by the Parliament for the election of members of the House of Representatives. This is a reference to s. 30 of the Constitution. The franchise for the election of senators is therefore that prescribed by the State for the election of its most numerous House, provided that each elector shall vote only once: that is to say, plurality in voting is in any case prohibited. (at p18)

20. This franchise is to stand until the Parliament, having legislative power to enact a franchise for the State, or for the States as a whole, does so. This legislative power of the Parliament derives from the opening words of s. 30 combined with the provisions of s. 51(xxxvi.). Section 30 is not made subject to the Constitution. Thus it is not in terms subjected to s. 24. There is no constitutional requirement to be found in s. 30 that a State should prescribe any particular franchise: or that it should maintain the franchise which obtained in the State at the date of the enactment of the Constitution. Further, s. 30 does not require the Parliament, should it legislate on the matter, to prescribe any particular franchise: but s. 41 does place a limitation on what may be prescribed. For a discussion of s. 41, see King v. Jones (1972) 128 CLR 221 . (at p18)

21. Adult suffrage was unknown in the majority of the colonies of Australia in 1900. In New South Wales women were not then enfranchised, natural-born or naturalized males of twenty-one or over only having a vote. In Victoria, only natural-born or naturalized male persons twenty-one or over with a residential or property qualification were enfranchised. In Queensland, only natural-born, naturalized male persons and male denizens twenty-one or over with a property qualification were given the franchise, with an exception in the case of aboriginal natives of Australia, India, China and the South Sea Islands, unless they satisfied the property qualification. In South Australia, both male and female British subjects twenty-one or over could vote. In Western Australia, natural-born or naturalized adult persons of both sexes with a residential qualification had the franchise, and in Tasmania, only adult males natural born or naturalized and adult male denizens satisfying a property or residential and income qualification could vote. In Tasmania, Western Australia and Queensland, plural voting related to property qualification was allowed. (at p19)

22. Thus the Constitution not only left the prescription of the franchise to the States until the Parliament should pass a law on the matter, but the existing franchises were constitutionally acceptable. If adult suffrage had been intended, bearing in mind the various colonial franchises to which I have referred it is unthinkable that express provision in that behalf should not have been made. It is certain to my mind that the politically experienced members of the constitutional conventions, from which the terms of the Constitution emerged, would not have left the prescription of adult suffrage to be found in the expression "directly elected by the people" or that they would have recognized that expression as so providing. (at p19)

23. What I have so far written on the expression "directly elected by the people" in s. 7 is equally applicable to the same expression in s. 24, though in that section it relates to the people of the Commonwealth. (at p19)

24. The matter is carried further in relation to s. 24 by a consideration of s. 29 of the Constitution which left it in the first place to each State to determine the boundaries of the electoral divisions within the States and the number of members to be chosen by any division. This section also is not prefaced with the words "Subject to this Constitution", so that s. 24 is not in terms dominant of its provisions. (at p19)

25. The Australian colonies in 1900 determined their electorates by various methods. But none insisted on "practical equality" of numbers of people or of electors in the electoral divisions. New South Wales distributed the colony into districts by the use of a quota derived from the number of electors in relation to the number of members to be elected for its most numerous House. A margin of deviation from the quota was allowed after considering community or diversity of interest, lines of communication and physical features. The boundaries were drawn by electoral commissioners. In Victoria and Queensland, the boundaries of each electoral district, some single member and others dual member districts, were scheduled to an Act. In South Australia, the boundaries of two member electoral districts were scheduled to the Electoral Code. In Western Australia, the boundaries of electoral districts, each being a single member district, were scheduled to an Act. In Tasmania, the majority of the electoral districts were single member districts but one was a six member district and another a four member district. The boundaries of all districts were as set out in a schedule to an Act. There is nothing to suggest that in the case of electoral divisions of which the boundaries were scheduled to an Act that those divisions were practically equal in numbers of people or of electors. (at p20)

26. Bearing in mind this diversity and the complete absence of any necessary equality, either in numbers of people or of electors, of the electorates in the colonies, the fact that s. 29 left it to the States, until the Parliament should otherwise provide, to distribute the State into electoral districts and to fix the number of members to be chosen for each district, without any reference express or implied to s. 24, tells strongly, in my opinion, if not definitively against these submissions made by the plaintiffs. (at p20)

27. Section 25 is also significant. It deals with State electoral provisions which may discriminate in the franchise on the basis of race, not by disallowing or forbidding such discrimination, but merely by excluding the unfranchised person from the tally of the State's population. (at p20)

28. Section 24 evidently performs several functions. First, it provides for direct as distinct from indirect election of members to compose the House of Representatives. Secondly, it fixes the total number of the members by relation to the number of senators. It then provides for the distribution of that number of members between the several States of the Federation. (at p20)

29. The plaintiffs in setting great store by the expression "directly chosen by the people" place the emphasis not upon the word "directly" but really upon the word "people". The plaintiffs assert that this indicates a guarantee that everyone should have an equal vote. But, in my opinion, that assertion just cannot validly be made. The provisions of the sections of the Constitution to which I have already referred make it impossible, in my opinion, as a matter of legal interpretation so to conclude. (at p21)

30. I can find no warrant to imply in s. 24 the word "all" in the sense in which the plaintiffs would seek to have it implied. But, further, and in any case, in my opinion, the expression "directly chosen by the people" is merely emphatic of two factors: first, that the election of members should be direct and not indirect as, for example, through an electoral college and, secondly, that it shall be a popular election. It is not an indirect reference to any particular theory of government. Members of the more numerous Houses of the Australian colonies, according to the franchises to which I have referred, were, in my opinion, elected directly by popular election. Within the meaning of the constitutional expression they could properly have been said to have been directly chosen by the people of the colony. (at p21)

31. At this point it is proper to observe that in contrast to the Constitution of the United States, the Constitution does not require that a census be taken and statistics compiled at any particular time. The present requirement of an enumeration day is statutory and not constitutional. Thus, there is no constitutional requirement that the latest statistics of the Commonwealth be up-to-date. At the present time, the Census and Statistics Act 1905-1973, required the taking of a census every tenth year following on 1911: s. 8. But regulations made under that Act now provide for a census each fifth year. However, the statistician is to collect, at least annually, statistics in relation to population: s. 16. He must complete and tabulate such statistics and publish them as ministerially directed: s. 20. Such statistics would qualify, in my opinion, as the latest statistics for the purposes of s. 24. But from the point of view of the construction of the Constitution, the absence of any constitutional requirement of the holding of a census or of the compilation of statistics is significant. So far as concerns the Constitution itself, the latest statistics may be, though the latest, yet stale. (at p21)

32. It is obvious that s. 24 does not require a precise mathematical relationship of the number of members chosen in a State to the numbers of the people of the State. The second paragraph reflects the fact that the use of the formula proposed in the second paragraph will not necessarily result in a precise relationship of the population of a State to the number of members to be chosen for that State. A remainder is envisaged. This of necessity must produce a very considerable divergence from a precise mathematical relationship of the number of members chosen in the State to the population of that State. Comparison between a State which has a remainder equal to ninety per cent of the quota and a State which has a remainder of forty-nine per cent of the quota is sufficient to illustrate the point. One would have an additional member but only one and the other would have none. Further, the requirement that each original State should have at least five members precludes the relationship of the number of members chosen in the State to the population of the State being exactly proportional. We know, according to the populations of the colonies in 1900 that, but for this provision, the use of the quota which s. 24 describes would have resulted in less than five members being chosen in Tasmania and Western Australia. (at p22)

33. The method of determining the number of members chosen in the State so that they will be in proportion to the several populations of the States, which s. 24 specifies, may be regarded as an interim provision. It was not for use in the first election for which s. 26 made express provision. But it was available for use in subsequent elections till the Parliament legislated on the matter. I shall return to this aspect of s. 24 when dealing with the Representation Act. It is sufficient in relation to the submissions on ss. 24 and 29 to emphasize that nothing in the terms of the prescribed method of determining the number of members to be chosen in the several States lends any support, in my opinion, to the plaintiff's submissions. (at p22)

34. It is therefore my opinion that the second paragraph of s. 24 cannot be read as containing any guarantee that there will be a precise mathematical relationship between the numbers of members chosen in a State and the population of that State or that every person in Australia or that every elector in Australia will have a vote, or an equal vote. (at p22)

35. However, considerable reliance was placed by the plaintiffs on the decisions of the Supreme Court of the United States upon the expression "directly chosen by the people" in Art. 1 of the Constitution of that country. The particular decisions to which reference has principally been made are Baker v. Carr (1962) 369 US 186 (7 Law Ed 2d 663) , Wesberry v. Sanders (1964) 376 US 1 (11 Law Ed 2d 481) , Kirkpatrick v. Preisler (1969) 394 US 526 (22 Law Ed 2d 519) and White v. Weiser (1973) 412 US 783 (37 Law Ed 2d 335) . It is pointed out by the plaintiffs that to a considerable extent, the Constitution of the United States was used as an exemplar by those who developed the terms of the Australian Constitution: and that the precise expression in Art. 1 was embodied in ss. 7 and 24. But the meaning latterly placed by the Supreme Court upon this expression is not to be found in any earlier decision and in any case the two Constitutions have radical differences. The basic American decision for present purposes is Wesberry v. Sanders (1964) 376 US 1 (11 Law Ed 2d 481) . The later decisions of Kirkpatrick v. Preisler (1969) 394 US 526 (22 Law Ed 2d 519) and White v. Weiser (1973) 412 US 783 (37 Law Ed 2d 335) merely apply the first of these decisions. Examination of the reasons for judgment in Wesberry v. Sanders (1964) 376 US 1 (11 Law Ed 2d 481) clearly demonstrates that the meaning attributed to the expression "directly chosen by the people" in Art. 1 of the Constitution of the United States by the majority of the Justices in that case depended heavily, if not almost entirely, upon the view taken by the majority of American history and of statements made in the constitutional conventions preceding the adoption of that Constitution. It is evident on reading the views of the minority in that case that there is, to say, the least, great doubt as to the validity of the view of that history and of those statements taken by the majority. However, it is not for this Court to attempt to resolve the difference between the majority and the minority as to what actually took place in pre-federation America and in the conventions or as to the significance of what did in truth take place. Suffice it to say that, in my opinion, the meaning attributed to the words of Art. 1 would not have been adopted by the majority of the Supreme Court except for the view taken by that majority of American history and, in particular, of the statements made in the American conventions. That history and those statements had no counterpart in Australia. (at p23)

36. Further, it must always be borne in mind that the American colonies had not only made unilateral declarations of independence but had done so in revolt against British institutions and methods of government. The concepts of the sovereignty of Parliament and of ministerial responsibility were rejected in the formation of the American Constitution. Thus, not only does the American Constitution provide for a presidential system, but it provides for checks and balances based on the denial of complete confidence in any single arm of government. (at p23)

37. In high contradistinction, the Australian Constitution was developed not in antagonism to British methods of government but in co-operation with and, to a great extent, with the encouragement of the British Government. The Constitution itself is an Act of the Imperial Parliament which, except for a significant modification of the terms of s. 74, is in the terms proposed by the Australian colonists and accepted by the British Government. Because that Constitution was federal in nature, there was necessarily a distribution of governmental powers as between the Commonwealth and the constituent States with consequential limitation on the sovereignty of the Parliament and of that of the legislatures of the States. All were subject to the Constitution. But otherwise there was no antipathy amongst the colonists to the notion of the sovereignty of Parliament in the scheme of government. (at p24)

38. Also it is well known that the Constitution of the United States would not have been accepted except on the footing that it would be amended to include a Bill of Rights. It is very noticeable that no Bill of Rights is attached to the Constitution of Australia and that there are few guarantees. Not only are the powers given to the Parliament plenary but there is a large number of provisions in the Constitution which leave to the Parliament the power of altering the actual constitutional provisions. In other words, unlike the case of the American Constitution, the Australian Constitution is built upon confidence in a system of parliamentary Government with ministerial responsibility. (at p24)

39. The contrast in constitutional approach is that, in the case of the American Constitution, restriction on legislative power is sought and readily implied whereas, where confidence in the parliament prevails, express words are regarded as necessary to warrant a limitation of otherwise plenary powers. Thus, discretions in parliament are more readily accepted in the construction of the Australian Constitution. The federating colonies committed themselves to what the Parliament, not what the House of Representatives, but the House of Representatives and the Senate, might do in relation to the franchise and the electoral distribution of the States, building in the safeguard of the equality of legislative power with one exception, in the two Houses. (at p24)

40. In my opinion, in the construction of the Constitution of Australia, decisions of the Supreme Court upon the Constitution of the United States are frequently inapt, and none more so, in my opinion, than the decisions of the Supreme Court on Art. 1. (at p24)

41. Further, the American Constitution has no counterpart of the provisions of Pt III of the Australian Constitution other than the opening words of s. 24. As I have indicated, these provisions render quite impossible the construction of those words in the sense adopted in Wesberry v. Sanders (1964) 376 US 1 (11 Law Ed 2d 481) . (at p25)

42. Whilst, in my opinion, there is no constitutional guarantee of a universal franchise of equal voting strength or value, nor of practical equality in electoral divisions either in numbers of people or of electors, the Parliament in the Electoral Act has legislated a uniform adult franchise and has, in my opinion, made a real endeavour to secure equality of voting value when providing for the distribution of the States into electoral divisions. Section 19 prescribes a number of factors to be taken into account in an electoral distribution which, in my opinion, do tend to secure equality of voting strength or value. I am unable to accept the view that mere equality of numbers of people in a division provides equality of voting value. One has only to contrast the situation of a voter in an electoral division in which there is a high proportion of children and teenagers under the age of eighteen with a voter in an electoral division with an equal number of people in which there is a negligible proportion of children and of such teenagers to realize that mere equality of numbers, all other considerations aside, will not ensure equality in voting value. (at p25)

43. Again, to ignore community of interest in the creation of electoral divisions and to insist on mere equality of numbers will be likely, in my opinion, to produce inequality rather than equality of voting value. It is probably impossible to devise a formula for electoral distribution which will necessarily produce equality in voting value, which will ensure that each vote is of equal weight in an election as a whole or even as between electoral divisions. But s. 19, grounded as it is upon long parliamentary experience, in not insisting on practical equality in numbers in divisions, accepting a tolerance of inequality of numbers expressed in a percentage, and in nominating the various considerations to be regarded when effecting a distribution, in my opinion, represents a practical endeavour to solve the problem and does represent a scheme designed to produce equality of voting value. I do not read that section as directing the percentage tolerance as itself a goal in the distribution. The section directs consideration of the stated factors and allows the proper consideration and weighting of them to produce a result within the permitted tolerance of equality. (at p25)

44. Thus, the confidence reposed in the Parliament by s. 30 and s. 51(xxxvi.) has not, in my opinion, been misplaced: nor has use of the plenary power given by s. 29 and s. 51(xxxvi.) in leaving with the Parliament the decision of a basis of distribution of the States into electoral divisions been shown to have been misplaced. (at p26)

45. I am of opinion that Pt III of the Electoral Act is not invalid. In my opinion, in particular, no part of s. 19 is invalid. It is impossible, in my opinion, to read either s. 24 or s. 29 of the Constitution, or both in combination, as expressing or implying any constitutional guarantee that electoral divisions in the States will be equal in numbers of people or of electors. (at p26)

46. I now turn to the third issue, the attack on the Representation Act. Some discussion took place during the argument of the demurrers as to whether the plaintiffs who raised this issue had any standing to do so. Clearly, in my opinion, the Court has jurisdiction to hear a challenge to an Act. But, although no question of the competence of any plaintiff was raised by the defendants, it seems to me that the Court should decide that the individual citizen has no standing to challenge the validity of the Representation Act. (at p26)

47. First, as to the plaintiff, Lawlor. This plaintiff has no particular damage or inconvenience accruing to her as distinct from and beyond any disadvantage or injury which may be caused to members of the public generally by the operation of the Act. If the Act is to be challenged where there is no such individual consequence, in my opinion, it must be by the Attorney-General of the State in his capacity as parens patriae. (at p26)

48. As to the suit brought by the State of South Australia and its Attorney-General, it was said that there was no allegation in the statement of claim that action under the Representation Act had resulted in an inadmissible disproportion between the number of members chosen for the State of South Australia and its population. So much may be granted but on consideration it seems to me that the right of South Australia to challenge the Representation Act on the footing that it is not a law in exercise of the power given to the Parliament by s. 51(xxxvi.) and s. 24 of the Constitution does not depend upon any allegation that damage or disadvantage has actually been suffered by the State of South Australia. In my opinion, the State of South Australia and its Attorney-General have a right in this suit to ask this Court to pass upon the validity of the Representation Act in point of constitutional power because, if valid, it would be a provision by the Parliament displacing the constitutional manner of determining the number of members which can be chosen in the State of South Australia for the House of Representatives. The challenge to the Act does not depend, in my opinion, on any allegation of fact. It depends solely on the terms of the Act as compared with the nature of the subject matter upon which the Parliament may legislate. Accordingly, in my opinion, the State of South Australia and the Attorney-General for that State have an interest to challenge the validity of the Representation Act before this Court. (at p27)

49. In order to discuss that validity, it is necessary, it seems to me, first to determine what is the subject matter upon which the Parliament is empowered to make laws by virtue of s. 51(xxxvi.) and s. 24. The legislative power is a power to make laws with respect to a matter in respect of which the Constitution makes provision until the Parliament otherwise provides. Now, it is important to observe that the expression "until the Parliament otherwise provides" does not preface the whole of the second paragraph of s. 24. As I have said elsewhere, it is quite inadmissible in construing this Constitution to insert such an expression before a constitutional provision when it does not so appear in the text. The draftsman of the Constitution has been quite scrupulous in the placement of the words "until the Parliament otherwise provides". He has followed that course in the second paragraph of s. 24. The words appear before the words "be determined, whenever necessary, in the following manner". The question to ask, in order to determine the subject matter of the legislative power, is in my opinion, what is the matter in respect of which the Constitution has made provision until the Parliament otherwise provides? It seems to me that the answer to that question is that the matter in respect of which the Constitution so makes provision is the manner of determining the number of members chosen in the several States in proportion to the respective numbers of their people. There is no warrant, in my opinion, for the view that the Parliament may alter the terms of the first sentence of the second paragraph of s. 24. The constitutional provision that the number of members chosen in the several States shall be in proportion to the respective numbers of people, whatever is the proper construction of those words, must stand and it is not within the competence of the Parliament to alter it. Further, the final words of the first paragraph of s. 24 namely "whenever necessary" is not a matter which the Parliament may alter or decide. (at p27)

50. I have already observed that a precise or accurate mathematical relationship between the number of members chosen in a State and the population of the State is not intended. I have also observed that there is no provision in the Constitution for maintenance of up-to-date statistics, either by way of census or otherwise. But though there is no constitutional obligation to maintain them when the constitutional manner of determining the number of members to be chosen for the State is employed, it will be the latest available statistics which will have to be employed in the operation of the formula, perhaps even if they are not statutorily compiled. I have referred to the relevant and current provisions of the Census and Statistics Act 1905-1973 in this connexion. In my opinion, the power of the Parliament is to make a law providing for use "whenever necessary" a manner of determining the number of members to be chosen in the several States in proportion to the respective numbers of their people. (at p28)

51. The second paragraph of s. 24 provides for determining the number of members to be chosen in the several States "whenever necessary". In my opinion, this provision does not commit to the Parliament to determine when it is necessary to determine that number of members. If no valid law has been passed by the Parliament otherwise providing, the quota will be employed to determine the number of members chosen whenever it is, in fact, necessary. This Court must determine what that expression means and in the last resort must decide the result of applying that meaning to any given factual situation. (at p28)

52. In my opinion, the meaning of the expression is that the number of members to be chosen in the States must be determined for each regular election for the House of Representatives. The words "whenever necessary" are not tied, in my opinion, to the possible changes in population as revealed by the latest statistics. I rather think that the expression is tied to the effect upon the electoral processes on the determination of the number of members to be chosen in the several States. It is the determination of the number of members which must be made whenever necessary. There is no constitutionally required census date to which that determination could be referable: and I am unable to conclude that it could be referable to some census date determined by or under an Act of Parliament. To so conclude would be to leave it to the Parliament in an indirect way to decide when it was necessary to make the determination. If there had been a constitutional requirement of a census to be held at specified intervals, it might be said, in my opinion, that whenever that census indicated an apparent disproportion of the number of members chosen for any State and the then population of that State, it would be necessary to utilize the formula: but as I have already pointed out there is no constitutional necessity to take a census at any time or at any stated intervals of time. (at p28)

53. Section 61 places in the executive power of the Commonwealth, amongst other things, the execution of the constitutional manner of determining the number of members to be chosen in the States to execute the Constitution. Thus, if there were no valid Act of the Parliament otherwise providing, it would devolve upon the Executive to apply the constitutional manner of determining the number of members to be chosen in each State by use of the latest statistics and the quota and, in my opinion, to do so before and in time for an ensuing general election. Thus, if the Parliament did not otherwise provide by a valid law, the constitutional manner of determining the number of members to be chosen in the several States would necessarily have been used by the Executive for and in time for the holding of the second and each succeeding triennial general election for the House of Representatives. (at p29)

54. Section 27 contemplates that the ordinary general election for the House of Representatives will take place in each three years. The Constitution, in my opinion, requires the determination of the number of members to be chosen in the State should be kept up-to-date according to the latest statistics in relation to ordinary or regular general elections for the House of Representatives. Thus I conclude that the expression "whenever necessary" was introduced to indicate that course. (at p29)

55. Of course, by taking the view which I have favoured, the number of members to be chosen in the several States would necessarily be determined every three years. That does not mean that those numbers would be changed every three years. But the need to make a determination during each three years will necessitate, in my opinion, a recasting of the Electoral Act so as to make it certain whenever an alteration is made in the number of members of the House of Representatives to be chosen in any State the resultant redistribution of the electoral divisions in that State will be made in time for one in the ordinary general election. (at p29)

56. It seems to me that there is no need for any such activity in the case of a by-election. Such an election is to provide a substitute for a member whose seat for one reason or another has been vacated. Nor can it be necessary to make a determination for a "snap" election whether of the House of Representatives alone or for that House after a double dissolution; that is to say, for a general election for the House of Representatives which is not held in the ordinary course at or towards the expiry of a three year term. It is only in respect of a general election for the House of Representatives rendered necessary by the effluxion of the term of three years that, in my opinion, it becomes necessary to redetermine the appropriate number of members to be chosen in the several States. In my opinion, it would be quite impractical for the quota to be utilized to produce the number of members to be chosen in the several States and for the necessary adjustments to be made in the distribution of the States into divisions from the time the House is dissolved before the expiry of the three years and in time for the consequential general election. Of course, it is to be observed that s. 12 provides that allocation of the number of members to be chosen in any State to be effective for any general election subsequent to the determination of the number of members so to be chosen. None the less, I do not construe the words "whenever necessary" as doing more than requiring the true numbers of members to be chosen to be effectively available for use in an ordinary triennial general election. By an ordinary triennial general election, I mean to include an election held at or towards the end of the three year period spoken of in s. 28 and to exclude elections which are brought on by a dissolution unrelated to that period. (at p30)

57. There is, clearly, no obligation on the Parliament "otherwise to provide". But if the Parliament attempts otherwise to provide, it must do so by a law which is valid. Its validity will depend upon whether or not it is an exercise of the legislative power attracted by s. 51(xxxvi.) and the terms of s. 24 of the Constitution. (at p30)

58. Now, there can be no cavil, in my opinion, at the manner which the Representation Act provides for the determination of the number of members to be chosen for the several States. Indeed, except for variation in the consequence of a remainder after division of the population figures by the quota, the manner provided by the Representation Act is substantially the same as that for which the second paragraph of s. 24 provides. But objection is raised that the Representation Act does not ensure that the statutory manner of determining the number of members, though it purports to displace the constitutional manner of so doing it, will be available for use before and in time for the holding of an ordinary general election for members of the House of Representatives. This objection is supported by reference to the terms of s. 12(a) of the Representation Act. It provides:

"When in pursuance of a certificate under this Act 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. (at p31)

59. If that distribution of the States into divisions was certain to take place in time for an ordinary general election of the House of Representatives I would see no ground on which it could be said that the Representation Act was not a valid exercise of the legislative power to which I have been referring. But as the determination of the number of members to be chosen in the several States or in any particular State or States is made to depend upon a redistribution of the States or of a State into electoral divisions, it is essential to observe that the only statutory provisions for such a redistribution is in Pt III of the Electoral Act. That part provides for the distribution into electoral divisions of the State for the purpose of the election of members of the House of Representatives. Distribution Commissioners are appointed and directions are given to them as to the way in which they will prepare to make and make a report on the distribution of the State into divisions. As I have earlier said I am unable to hold that anything in or omitted from its ss. 15 to 23 makes the Electoral Act invalid. But in relation to the necessity for the distribution of the members amongst the States to be made in time for an ordinary general election a different problem arises. Will the redistribution under Pt III of the Electoral Act take place so as certainly to permit the determination of the number of members effected pursuant to s. 10, and notified under s. 11 of the Representation Act, to be operative and effective "whenever necessary"? (at p31)

60. Section 24 of the Electoral Act makes the power of the Governor-General to proclaim the boundaries of the divisions into which the several States, or a State shall be distributed dependent upon the approval of both Houses of the Parliament. So far as the validity of the Electoral Act in providing for the distribution of the States into divisions is concerned and apart from any question connected with the validity of the Representation Act there is, in my opinion, no objection to the distribution being dependent on the approval of the Parliament and upon the proclamation of the Governor-General. But neither the approval of the Parliament nor the proclamation by the Governor-General according to the provisions of ss. 24 and 25 need occur in time for the holding of an ordinary general election or for that matter at all. Parliament is not required to approve any proposed distribution nor is the Governor-General required to declare the approved distribution. Section 25(2) gives power to the Governor-General to make a proclamation giving effect to the distribution of the States into divisions of any particular State into divisions whenever an alteration is made in the number of members of the House of Representatives to be elected for the State. But it is not provided that the proclamation shall be made. Thus even if the Parliament should approve the distribution of the States or of any particular State into divisions, the distribution will not necessarily become effective by proclamation by the Governor-General. (at p32)

61. It, therefore, seems to me that the Representation Act in making the effectiveness of the determination of the number of members to be chosen in the several States depend upon the census and the redistribution of the States or of any particular State into divisions, fails to provide that there shall be a determination of the number of members to be chosen for the House of Representatives in the several States in proportion to their respective population whenever it is necessary so to do, which, in my opinion, means in time for an ordinary general election of the House of Representatives held in the third year after the commencement of the Parliament. In my opinion, for that reason the Representation Act so long as ss. 3, 4 and 12 of that Act and ss. 24 and 25 of the Electoral Act remain in their present form, is not a valid exercise of the legislative power of the Parliament given by s. 51(xxxvi.) and s. 24 of the Constitution. (at p32)

62. Having regard to the terms of s. 10(b) of the Representation Act in providing that an additional member shall be chosen for a State in respect of which the division of the quota into its population leaves a remainder, it would seem less likely, than it might have been under the use of the constitutional formula, that there would be a need to redistribute the States into divisions with any frequency. I see no reason to think that a system of triennial determination of the number of members to be chosen in the several States with a consequential need on some occasions to make a new distribution of a State or of States into electoral divisions is impractical or particularly onerous. But, in any case, whatever the inconvenience, it seems to me the Constitution does contemplate that the determination of the number of members of the House of Representatives amongst the States or the several States shall be kept up-to-date. A consequence of that is that the distribution of the States into divisions must also be kept up-to-date but, of course, as I have indicated, not in order to make the divisions equal in the number of people within them but simply so that the changes in the number of members to be chosen in the several States can be made electorally effective. (at p33)

63. To sum up my views in these suits brought to test the validity of parts of the Electoral Act and parts of the Representation Act:
1. There is, in my opinion, no constitutional guarantee that the electoral divisions in the States will comprise an equal number of people or an equal number of electors: there is not in the terms of the plaintiffs' submission a guarantee of "practical equality" in the numbers of people or of electors comprised in the electoral divisions.
2. There is no constitutional guarantee of equality in the voting value or weight of each vote cast in an election for the House of Representatives. A provision in an Electoral Act of a State or of the Commonwealth, which allows of the consideration of matters such as those set out in s. 19 of the Electoral Act when a State is being distributed into electoral divisions, does not invalidate such an Act; nor does a provision that there may be a tolerance expressed as a percentage in the comparative number of people or of electors comprised in a division.
3. The Electoral Act is not invalid, and, in particular, s. 19 thereof is not invalid. The electoral divisions created in pursuance of the Electoral Act are not invalidly created.
4. The Constitution does require that, in case the Parliament has not otherwise provided within the meaning of s. 24 of the Constitution, a quota be ascertained and applied in time for use in connexion with an ordinary general election for the House of Representatives at, or immediately before, the expiry of three years from the first meeting of the House of Representatives.
5. The legislative power of the Parliament derived from s. 51 (xxxvi.) and s. 24 is to provide a manner of determining the number of members chosen in the several States in proportion to the population of the respective States, such manner to be available for use "whenever necessary". It is for the Court and not for the Parliament to determine the meaning of the expression "whenever necessary" and if the occasion for making the determination is a matter of dispute and must be decided in point of fact, it will be for the Court to decide that fact. The expression "whenever necessary" is related to the holding of an ordinary general election and not to changes in population. In my opinion, it calls for a determination to be made in each triennial parliamentary period and in time for use in an ordinary general election for the House of Representatives, but not for use in a by-election or in a general election held upon a dissolution of the House before the expiry of the said period of three years, whether that election be for the House alone or be contemporaneous with an election for the Senate.
6. The validity of an Act passed in exercise of this legislative power will be determined as in the case of any other legislative act of the Parliament in respect of a subject matter committed to it by the Constitution: but the subject matter, properly understood, derived from s. 24, does require the substituted manner of determination both to be for the purpose of determining the number of members proportionately to population and to be available whenever necessary.
7. The Representation Act would not be invalid in having failed to provide a manner of determining the number of members. Sections 10 and 11 in themselves would be valid but ss. 3 and 4 tie the Act to the census, and s. 12(a), which makes the operation of the determination of the number of members to depend upon the distribution of the States into electoral divisions, there being no legislative provision which ensures such a distribution renders the Act as a whole invalid as not providing for the determination to be effective and available.
8. The Electoral Act does not ensure that the States will be distributed into electorates at any particular time or at all: see ss. 24 and 25 of that Act. It will not be possible, in any case in which there is an allocation of the number of members to be chosen in a State, to treat an existing distribution, that is to say, a distribution existing prior to the time of the certificate granted under s. 11 of the Representation Act, as satisfying the terms of s. 12(a) which speaks of a redistribution.
9. Whilst ss. 3, 4 and 12(a) of the Representation Act and ss. 24 and 25 of the Electoral Act remain in their present form, the Representation Act is not a valid law by which the Parliament otherwise provides within the meaning of the second paragraph of s. 24 of the Constitution.
10. Section 29 of the Constitution makes provision in case the State or the Parliament has not made a law otherwise providing for the distribution of the State or of the States into electoral divisions. In the absence of such a distribution, each State shall be one electorate. This may result in practical difficulties but the constitutional provision would have to be regarded.
11. The use of the then existing electoral divisions and of the then existing determination of the number of members of the House of Representatives chosen by the several States did not invalidate any election of members of the House of Representatives which has already taken place; nor bring into doubt the validity of the membership of the Parliament. (at p35)

McTIERNAN AND JACOBS JJ. Section 24 of the Constitution provides that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth. The rest of the section provides for the number of members in three ways. First, it provides that the number of members shall be, as nearly as practicable, twice the number of the senators. Secondly, it provides that the number of members chosen in the several States shall be in proportion to the respective numbers of their people. Thirdly, it provides that five members at least shall be chosen in each original State. (at p35)

2. The section also lays down a manner in which until Parliament otherwise provides the number of members shall be determined whenever necessary. This provision is subject to change by the Parliament pursuant to the power contained in s. 51(xxxvi.), but the other three provisions are constitutional requirements or injunctions. They may be described as constitutional guarantees but there is no particular need so to describe them. (at p35)

46. Therefore, it was provided by a very deliberate choice of language in ss. 29 and 30 that the provisions of State laws (which were to operate only until the Parliament provided otherwise) were not subject to the Constitution, including s. 24, but the laws made by Parliament (under s. 51(xxxvi.)) in relation to the matters in ss. 29 and 30 were subject to the Constitution, including s. 24. (at p74)

47. In other words, the laws made by Parliament under ss. 29 and 30 are subject to constitutional constraints, in particular to those in s. 24 which were not to prevail over the State laws used to launch the federation. (at p75)

48. The fact, then, that the State laws referred to in ss. 29 and 30 did not conform to the commands in s. 24, is irrelevant to the question whether the laws made by the Parliament on the matters of divisions and qualification of electors in ss. 29 and 30 are subject to a command of equality in s. 24. (at p75)

PEOPLE OR ELECTORS.

49. It may make no great difference in practice whether the standard of quality is measured in people or electors. Whatever is construed to be the constitutional standard, it must be observed in all legislative and administrative measures in order to prevent debasement of the constitutional right. (at p75)

50. In my opinion, the standard of equality is to be measured in each State in numbers of electors rather than numbers of people. The emphasis in "chosen by the people" in s. 24 is on a choosing by all the people capable of choosing, that is, the electors. The number of members in each State is to be proportionate (subject to the minimum) to the population of each State. But in the choosing in each State, the electors share the voting power equally, whether the State is one electorate or in divisions. This view is supported by the reasoning in the United States cases which refer repeatedly to equality of voting power and similar expressions as the principle underlying the command. It is reinforced by the "one person, one vote" mandate in s. 30 of the Constitution. (at p75)

JUSTICIABILITY.

51. The questions raised by the plaintiffs are justiciable. An action which seeks protection of a political right does not merely present a political question. The contention that it does "is little more than a play upon words" (Baker v. Carr (1962) 369 US 186, at p 209 (7 Law Ed 2d 663, at p 681) , quoting Nixon v. Herndon (1927) 273 US 536, at p 540 (71 Law Ed 759, at p 761) ). And in Wesberry v. Sanders (1964) 376 US, at pp 6-7 (11 Law Ed 2d, at p 486) , the opinion of the United States Supreme Court was:

"... we made it clear in Baker (1962) 369 US 186 (7 Law Ed 2d 663) 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 (1803) 1 Cranch 137 (2 Law Ed 60) . Cf. Gibbons v. Ogden (1824) 9 Wheat 1 (6 Law Ed 23) . 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'." (at p76)

STANDING.

52. A member of the Parliament, a candidate, an elector, or any one of the people of the Commonwealth has standing to challenge the validity or operation of legislative or administrative measures on the ground that they adversely affect his or her right to vote, to represent, or to be represented (see McDonald v. Cain (1953) VLR 411 ; Tonkin v. Brand (1962) WAR 2 ; Lindell, "Judicial Review and the Composition of the House of Representatives", Federal Law Review, vol. 6 (1974), p. 8). (at p76)

53. Enforcement of constitutional political rights does not have to be justified by characterizing them as rights of property. This degrades the political right. The exaltation of property rights over civic and political rights is a reflection of the values of a bygone era. (at p76)

54. The United States Supreme Court in Baker v. Carr said (1962) 369 US, at p 204 (7 Law Ed 2d, at pp 707-708) :

"Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing." (at p76)

55. The Court should not prevent the people of Australia from seeking to establish or enforce political rights by judicial processes. (at p76)

THE COMMONWEALTH ELECTORAL ACT 1918-1973.

56. The relevant provisions of this Act are laws to determine electoral divisions envisaged by s. 29 of the Constitution and made under s. 51. They must therefore comply with the Constitution, including s. 24. (at p76)

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

"In making any proposed distribution of a State into Divisions, the Distribution Commissioners shall give due consideration, in relation to each proposed Division, to - (a) community of interests within the Division, including economic, social and regional interests; (b) means of communication and travel within the Division; (c) the trend of population changes within the State; (d) the physical features of the Division; and (e) existing boundaries of Divisions and Subdivisions, and subject thereto the quota of electors shall be the basis for the distribution, and the Distribution Commissioners may adopt a margin of allowance, to be used whenever necessary, but in no case shall the quota be departed from to a greater extent than one-tenth more or one-tenth less."

For the reasons given in detail earlier, the allowance for a departure of one-tenth from the quota is inconsistent with the mandate in s. 24 of the Constitution that the members of the House of Representatives shall be "chosen by the people". It conflicts with the requirement that the divisions shall contain numbers of electors as nearly equal as practicable. I would declare s. 19 invalid. (at p77)

58. In my opinion, both ss. 24 and 25 of the Act cause the legislative scheme to contravene the Constitution. These are in Pt III of the Act which is an elaborate scheme for distribution of a State into electoral divisions. (at p77)

59. Section 24 of the Act offends against s. 24 of the Constitution in two separate respects. Firstly, it provides that such divisions when proclaimed shall, until altered, be the electoral divisions for the State. But alteration of these divisions requires approval by both Houses of Parliament of any proposed distribution and the proclamation of the Governor-General declaring the names and boundaries of the divisions. The alteration need never occur. Section 24 of the Constitution requires that the number of members chosen in the several States shall be in proportion to the respective members of their people. Section 24 of the Act clearly allows that the number of members need not be in such proportion. Secondly, under s. 24 of the Act the elections are to be conducted in accordance with the last distribution even if it conflicts with the mandate of s. 24 of the Constitution of equal numbers of members for equal numbers of electors as outlined earlier. (at p77)

60. These are not theoretical considerations, as can be seen by the history of elections which were conducted on old distributions although the number of divisions contravened the proportions between the States required by the Constitution. In the elections for the House of Representatives in 1963 and 1966 the principle of proportionate representation between the States was plainly infringed (see Paterson, "Federal Electorates and Proportionate Distribution", loc. cit.). (at p77)

61. Section 25 of the Act which also provides that redistributions may, but need not, be made in the circumstances set out, conflicts with s. 24 of the Constitution for the same reasons. (at p78)

62. As ss. 24 and 25 would allow the Constitution to be contravened, I would declare each invalid. (at p78)

THE REPRESENTATION ACT 1905-1974.

66. This law is made pursuant to s. 51(xxxvi.) of the Constitution to deal with "matters in respect of which this Constitution makes provision until the Parliament otherwise provides". The relevant matter referred to is the determination of the numbers of members to be chosen in the several States provided for in s. 24 of the Constitution. As the legislative power under s. 51(xxxvi.) is expressed to be subject to the Constitution, the Act must conform with the requirement of s. 24 that the number chosen in the several States shall be in proportion to the respective numbers of their people. (at p78)

64. Section 10 of the Representation Act which provides for the determination of the number of members of the House of Representatives, was amended in 1964 to provide that if, after division of the number of the people of the State by the quota, there is a remainder, one more member shall be chosen in the State. That does not seem to be consistent with the nexus provision of s. 24 of the Constitution, but its validity was not questioned in these proceedings. (at p78)

65. By s. 12(a) of the Representation Act, the alteration in the number of members to be chosen in the several States shall not affect any election held before the State has been redistributed. Under the legislative scheme the redistribution need never occur. This plainly enables the command in s. 24 of the Constitution to be circumvented. I would declare s. 12(a) invalid. (at p78)

66. During the hearing, reference was made to the fact that a redistribution in accordance with the provisions of s. 19 of the Commonwealth Electoral Act had been proposed, and that, although it was approved by the House of Representatives, it was not approved by the Senate in accordance with s. 24 of the Commonwealth Electoral Act. Since the judgment on this case was reserved, a dissolution of both Houses of Parliament has occurred. A general election will be held on 13th December 1975. Enrolments and nominations for the existing divisions have closed. The election will therefore be conducted according to divisions declared on 25th November 1968 for New South Wales, Victoria and South Australia and on 27th February 1969 for Queensland, Western Australia and Tasmania. These are based on the statistics obtained from the Census as at 30th June 1966. The divisions were determined when s. 19 of the Commonwealth Electoral Act was in a different form which allowed a departure from the quota of twenty per cent, allowing divisions of from eighty per cent to one hundred and twenty per cent of the quota. In each State the numbers of electors in the divisions now vary so widely that the value of the votes varies significantly. The value of some votes is more than double the value of others. (at p79)

67. The result of the glaring inequalities between the electoral divisions in each of the States, in my opinion, is that in those States, the election proposed to be held on 13th December next will not be one in which the members will be "chosen by the people" as the Constitution requires. (at p79)

68. The demurrers by the defendants should be overruled. (at p79)

69. It should be declared that ss. 19, 24 and 25 of the Commonwealth Electoral Act 1918-1973 are invalid and that s. 12(a) of the Representation Act 1905-1974 is invalid. (at p79)

70. It should be declared that any general election for members of the House of Representatives, in which the numbers of electors in one-member divisions in each State are not as nearly as practicable equal, is not an election in which the members are chosen by the people, as s. 24 of the Constitution requires. (at p79)

Orders

ATTORNEY-GENERAL (CTH); EX REL. MCKINLAY v. THE COMMONWEALTH.

Defendants' demurrer allowed.

Action dismissed with costs.

SOUTH AUSTRALIA V. THE COMMONWEALTH.

Defendants' demurrer overruled in part. Declare that s. 3, s. 4 and s. 12(a) of the Representation Act 1905-1973 are invalid.

LAWLOR v. THE COMMONWEALTH.

Defendants' demurrer overruled in part. Declare that s. 3, s. 4 and s. 12(a) of the Representation Act 1905-1973 are invalid.