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

The Attorney-General (Cth); Ex rel McKinlay v The Commonwealth concerned a challenge brought by the Attorney-General on the relation of Mr. McKinlay to the validity of certain provisions of the Commonwealth Electoral Act 1918 (Cth). The dispute centred on the constitutional validity of sections 13 and 14 of the Act, which prescribed the method for determining the number of senators and members of the House of Representatives to be chosen for each State. The High Court of Australia was tasked with resolving this constitutional question.

The central legal issue before the High Court was whether the provisions of the Commonwealth Electoral Act prescribing the distribution of electoral divisions for the House of Representatives and the determination of the number of senators for each State were inconsistent with the requirements of section 24 of the Constitution. Specifically, the court had to consider whether the method of distribution and representation mandated by the Act satisfied the constitutional requirement that the House of Representatives be "composed of members directly chosen by the people of the Commonwealth."

The Court, by majority, held that the challenged sections of the Commonwealth Electoral Act were constitutionally valid. The majority reasoned that section 24 of the Constitution, while requiring direct election by the people, did not mandate that the number of members of the House of Representatives for each State be precisely proportional to the population of that State. Instead, the Court found that the Constitution permitted a degree of variation in the size of electorates between States, provided that the fundamental principle of direct election by the people was maintained. The Court distinguished between the "people of the Commonwealth" and the "people of each State," concluding that the latter was the relevant constituency for the purpose of representation in the House of Representatives. The Court also considered the provisions relating to the Senate, finding them to be consistent with the constitutional framework.