Martin v Electoral Districts Boundaries Commission
[2017] SASCFC 18
•10 March 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MARTIN v ELECTORAL DISTRICTS BOUNDARIES COMMISSION
[2017] SASCFC 18
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Blue, The Honourable Justice Bampton and The Honourable Justice Hinton)
10 March 2017
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION - GENERALLY
CONSTITUTIONAL LAW - CONSTITUTIONAL AMENDMENT - STATES - SOUTH AUSTRALIA
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - ELECTORAL DISTRICTS AND REDISTRIBUTION
Appeal against electoral redistribution order by the Electoral Districts Boundaries Commission.
On 7 December 2016, the Commission made an order effecting an electoral redistribution under section 82 of the Constitution Act 1934. In broad terms, the redistribution involved the 6 large outer rural districts having elector numbers of the order of 7% below average; the 7 semi-rural districts having elector numbers of the order of 3% below average; and the 34 urban districts generally having elector numbers slightly above average.
Subsection 77(1) of the Constitution Act requires that upon a redistribution the number of electors comprised in each electoral district must not as at a date specified in the order not earlier than 6 months beforehand vary from the average number of electors across all districts by more than 10 per cent. Subsection 83(1) requires the Commission to ensure as far as practicable that, if candidates of a particular group attract more than 50 per cent of the popular vote, they will be elected in sufficient numbers to enable a government to be formed. Subsection 83(2) requires the Commission to have regard to five enumerated factors and it may have regard to any other matters it thinks relevant.
The Commission delivered a report in which it explained its methodology. It rejected a submission by the Labor Party that section 77 of the Constitution Act required it to make a redistribution on the basis that all electoral districts should have approximately the same number of electors and the 10 per cent tolerance mentioned in section 77 only exists because it may not be possible to draw boundaries to achieve equality of numbers. The Commission said that nevertheless the notion of ‘one vote, one value’ remained a relevant consideration throughout its work.
The Commission found that, having regard to election results over the last 40 years, there was an innate imbalance against the Liberal Party caused by voting patterns in South Australia upon which had been imposed successive redistributions as a result of which the Liberal Party could win a significant majority of State-wide votes but not win a majority of seats. The Commission referred to an argument by the Labor Party that the imbalance was a function of poor placement of resources at the last election but said that there was no evidence that this occurred.
The appellant appeals against the redistribution order pursuant to section 86 of the Constitution Act on the ground that the order was not duly made in accordance with the Act.
The appellant’s primary contention is that implicit in section 77 is a requirement that in making an electoral redistribution the Commission shall pursue the objective of achieving a redistribution in which each electoral district has an equal number of electors and that the Commission failed to do so.
The appellant’s secondary contention is that the Commission erred in finding that there was no evidence before it to suggest that poor placement of resources during the 2014 election campaign by the Liberal Party elevated its State-wide two-party preferred vote without increasing the number of seats won; which was material to the Commission’s conclusion that there was an innate imbalance in electoral districts and to its approach under subsection 83(1).
Held (dismissing the appeal):
1. Per Kourakis CJ at [80]; per Kelly, Blue, Bampton and Hinton JJ at [214]:
It is not implicit in section 77 that the Commission must pursue the objective of achieving a redistribution in which each electoral district has an equal number of electors.
2. Per Kelly, Blue, Bampton and Hinton JJ at [237]:
In making the redistribution, the Commission pursued an objective of achieving a redistribution in which each electoral district has an equal number of electors.
Per Kourakis CJ:
The Commission was required to have regard to the desirability of achieving a redistribution in which each electoral district has an equal number or electors (at [70]) and it did so (at [87]). The Commission did not give paramountcy to this objective [80] but it is not required to do so (at [88]).
3. Per Kourakis CJ at [97]; per Kelly, Blue, Bampton and Hinton JJ at [258]:
The Commission did not err in finding that there was no evidence before it to suggest that poor placement of resources during the 2014 election campaign by the Liberal Party elevated its State-wide two-party preferred vote without increasing the number of seats won.
4. Per Kelly, Blue, Bampton and Hinton JJ at [263]:
The Commission’s finding that there was an innate imbalance against the Liberal Party caused by voting patterns in South Australia upon which had been imposed successive redistributions was not affected by any question of the allocation of resources during the 2014 election campaign.
5. Per Kourakis CJ at [5] & [98]; per Kelly, Blue, Bampton and Hinton JJ at [177]-[181]:
Observations concerning the nature of an appeal under section 86 of the Constitution Act.
6. Per Kourakis CJ at [99]; per Kelly, Blue, Bampton and Hinton JJ at [266]:
Appeal dismissed.
An Act for the better Government of Her Majesty’s Australian Colonies 1850 (13 & 14 Vict c 59) s VII, s XIV; An Act to establish a Constitution for South Australia, and to grant a Civil List to Her Majesty (No 2 of 1855-56) (SA); An Act to empower His Majesty to erect South Australia into a British Province or Provinces, and to provide for Colonization and Government thereof (4 & 5 Wm IV c 95) 1834 (UK) s I, s II; An Act to Provide for the Better Government of South Australia 1842 (5 & 6 Vict c 61) (UK) s IV, s V; An Ordinance to establish the Legislative Council of South Australia, and to provide for the election of Members to serve in the same (No 1 of 1851) (SA) s 5, s 14; Australia Act 1986 (UK) s 11; Australia Act 1986 (Cth) s 11; Constitution Act 1856 (SA) s 5, s 14; Constitution Act 1934 (SA) s 4, s 27, s 28, s 28A, s 32, s 41, s 76, s 77, s 78, s 79, s 82, s 83, s 84, s 85, s 86, s 88; Constitution Act Amendment Act 1901 (SA); Constitution Act Amendment Act 1936 (SA) s 27, s 32; Constitution Act Amendment Act 1955 (SA) s 3; Constitution Act Amendment Act 1969 (SA) s 8; Constitution Act Amendment Act (No 5) 1975 (SA) s 83; Constitution Act Further Amendment Act 1882 (SA) s 2; Constitution Act Further Amendment Act 1889 (SA); Constitution and Electoral Acts Amendment Act 1973 (SA); Constitution (Electoral Redistribution) Amendment Act 1991 (SA) s 82, s 83; Constitution Further Amendment Act 1913 (SA) s 8(2); Electoral Act 1856 (SA) s 2, s 5, s 6; Electoral Act 1858 (No 12 of 1857-58) (SA); Electoral Act 1985 (SA) s 124(1)(b); Electoral (Miscellaneous) Amendment Act 2009 (SA) s 82; Electoral Act 1861 (No 20 of 1857-58) (SA); Electoral Boundaries Act 1893 (No 581 of 1893) (SA); Electoral Boundaries Act 1895 (No 636 of 1895) (SA); Electoral Boundaries Act 1895 (No 637 of 1895) (SA); Electoral Districts (Redivision) Act 1929 (SA) s 3, s 4, s 6; Electoral Districts (Redivision) Act 1954 (SA) s 5, s 7; Electoral Districts (Redivision) Act 1968-6 (SA) s 3, s 4, s 5, s 7, s 8, s 11; Legislative Council Act 1851 (SA); Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); Royal Commissions Act 1917 (SA) s 7; An Act to amend an Act of the Fourth and Fifth Years of His late Majesty, empowering His Majesty to erect South Australia into a British Province or Provinces (1&2 Vict c 60) 1838 (UK) s I; An Act to provide for the Election of Members to serve in the Parliament in South Australia (No 10 of 1855-56) (SA); Constitution Amendment Act 1985 (SA) s 28, s 28A; Constitution (Parliamentary Terms) Amendment Act 2001 (SA) s 28, s 28A; Electoral Districts Act 1872 (No 27 of 1872/73) (SA); Northern Territory Representation Act 1888 (SA); Constitution Amendment Act 1910 (SA); Planning and Development Act 1966-67 (SA), referred to.
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Commissioner of Stamps v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453; Gilbertson v South Australia (1977) 14 ALR 429; Gilbertson v The State of South Australia (1976) 15 SASR 66; McGinty and Others v The State of Western Australia (1996) 186 CLR 140; The Palace Gallery Pty Ltd v Workcover Premium Review Panel (2014) 119 SASR 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Re Dixon and Attorney-General of British Columbia (1989) 59 DLR (4th) 247; Reference Re Electoral Boundaries Commission Act (1991) 81 DLR (4th) 16; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, discussed.
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Australian Capital Television Pty Ltd (1992) 177 CLR 106; Barclay v Pemberthy (2012) 246 CLR 258; Cook v Cook (1986) 162 CLR 376; Hawkins v Clayton and Others Trading as Clayton Utz & Co (1986) 5 NSWLR 109; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400; Rockwell Graphic Systems Ltd v Fremantle Terminals Ltd (1991) 106 FLR 294; Soliman v University of Technology, Sydney (2012) 207 FCR 277; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; Viro v The Queen (1978) 141 CLR 88; Walker v State of South Australia (No 2) [2013] FCA 700; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, considered.
MARTIN v ELECTORAL DISTRICTS BOUNDARIES COMMISSION
[2017] SASCFC 18Full Court: Kourakis CJ, Kelly, Blue, Bampton and Hinton JJ
KOURAKIS CJ: This is an appeal by Reggie Martin brought pursuant to s 86 of the Constitution Act 1934 (SA) (the Constitution Act) against an order of the Electoral District Boundaries Commission (the EDBC) made on 7 December 2016 effecting a redistribution of the boundaries of the electoral districts of South Australia pursuant to Part 5 of the Constitution Act (the 2016 electoral redistribution order).
Part 5 of the Constitution Act was enacted in 1975 and amended by the Constitution (Electoral Redistribution) Amendment Act 1991 (SA) (the 1991 Amendment Act). It enacted a scheme for periodical electoral redistributions to be made by a tribunal constituted by prescribed statutory office holders acting independently of government and in accordance with principles of representative government. The tribunal, the EDBC, is presided over by the senior puisne Judge of the Supreme Court and comprises that Judge, the Electoral Commissioner and the Surveyor‑General.[1] Section 77 of the Constitution Act provides that no electorate shall vary from an electoral quota – which is calculated by dividing the number of electors by the number of electoral districts - by more than 10 per cent. Section 83, as it stood before the 1991 Amendment, required the EDBC to, as far as practicable, have regard to:
·the desirability of each electorate having a community of interests of an economic, social, regional or other kind;
·the population of each proposed electoral district;
·the desirability of leaving existing boundaries undisturbed;
·the topography of areas within the electoral redistributed boundaries;
·the feasibility of communication between electors;
·the nature of substantial demographic changes that are likely to take place in the proposed electoral districts between the time of the redistribution and the likely date of the next redistribution.
[1] Constitution Act 1934 (SA), s 78.
The 1991 Amendment Act removed the requirement to have regard to existing electoral boundaries and added a new s 83(1) which required the EDBC to ensure as far as practicable that the party which won more than 50 per cent of the State-wide vote won government. I will refer to that objective as the government of the majority objective.
The 2016 electoral redistribution order was published on 7 December 2016. The appellant seeks orders from this Court quashing that order and compelling the EDBC to make a fresh electoral redistribution.
The only ground on which an appeal can be brought pursuant to s 86 of the Constitution Act is that the order has not been duly made. In Gilbertson v South Australia Bray CJ in the Full Court of this State[2] and Lord Diplock in the Privy Council[3] likened an appeal brought pursuant to s 86 of the Constitution Act to the review grounds of the common law writ of certiorari. However the analogy was drawn in support of the proposition that the power conferred by s 86 of the Constitution Act was judicial in nature. The writ of certiorari was a procedure by which the decisions of judicial and quasi-judicial tribunals were examined for error of law on the face of the record of their determinations. In my respectful opinion it is unnecessary to proceed, by analogy, from arcane prerogative writs, to delineate the scope of the appeal allowed by s 86 of the Constitution Act. The EDBC’s order effecting electoral redistribution will not be duly made if it erred in law. The EDBC will have so erred if it has not complied with either the express or implied statutory requirements of Part 5. The determination of that question is an exercise of judicial power on an appeal brought pursuant to s 86 of the Constitution Act as it would be on a writ of certiorari. The limits on the nature of the error, or how it might be demonstrated, applicable to writs of certiorari, are not picked up by s 86 of the Constitution Act.
[2] (1976) 15 SASR 66.
[3] (1977) 14 ALR 429 at 437.
The particulars of non-compliance with Part 5 of the Constitution Act on which Mr Martin relies are:
The Order of the Commission has not been duly made in accordance with the Constitution Act 1934 in that:
1.the Commission misdirected itself as to the proper interpretation of s. 77;
2.the Commission misdirected itself as to the proper interaction inter se of ss. 77 and 83;
3.the Commission failed to have regard to the fact that s. 77 enshrined a principle that the number of electors comprised in each electoral district must not vary from the electoral quota by more than the permissible tolerance, which can only be amended following a referendum under s. 88;
4.the Commission misdirected itself by treating the tolerance provided for within s. 77 as setting the parameters for a redistribution rather than treating numerical equality of electors in electoral districts as an objective enshrined in s. 77;
5.the Commission misdirected itself by having regard to the result of the 2014 election/votes received and seats won by the Liberal Party in the 2014 election on the basis that there was no evidence before the Commission to suggest that poor placement of resources during the election campaign by the Liberal Party elevated its two-party preferred vote without increasing the number of seats won.
Grounds 1-4 raise two issues:
1Is it a necessary implication of s 77 of the Constitution Act that numerical equality of electors is either:
· an overriding objective which the EDBC must pursue together with the objective in s 83(1) of the Constitution Act; or
· a mandatory relevant consideration in addition to the s 83(2) factors; and
2If either term is implied, did the EDBC make the 2016 electoral redistribution order in accordance with that term.
For the reasons which follow I hold that a numerical equality of electors is a mandatory relevant consideration, and that the EDBC did have regard to it as such. On the other hand, it is not an overriding statutory objective of an electoral redistribution and the EDBC was correct in not regarding it as such.
There are two issues raised by Ground 5. The first is whether the poor placement of campaign resources by the Liberal Party in the 2014 election was relevant to any proper matter of enquiry conducted by the EDBC. Second, if it was relevant, whether the EDBC was correct to observe that there was no evidence that the Liberal Party’s State-wide vote was not reflected in a proportionate number of seats because of that poor placement of resources. I accept for the purposes of this appeal that it is permissible to examine the effect of particular political campaigns and electoral results. That factual enquiry then may be relevant to the changes in electoral boundaries that are practicable and necessary to achieve the government of the majority objective. However, I find that there was no evidence that the Liberal Party’s 2014 election campaign resulted in any, or any increased, disproportion, of a temporary nature, between its State-wide vote and its vote in particular electorates, or parts of electorates. Therefore there was no evidential basis on which to make any different electoral distribution to give effect to s 83(1) of the Constitution Act.
The parties
The appellant is the State Secretary of the Australian Labor Party (South Australian Branch) (the Labor Party). The appellant brings this action on behalf of the Labor Party because s 86(2) of the Constitution Act only allows an elector to bring an appeal to the Full Court of the Supreme Court against an order of the EDBC, even though any person, whether an elector or not, may be joined in the proceedings so instituted.
The requirement that the appellant be an elector has not caused any practical difficulty in this case. However, s 86(2) of the Constitution Act produces the artificial result that the appellant to an appeal will often be an elector who is a member of a political party which made representations to the EDBC but who did not personally appear before it. Parliament may wish to consider whether a registered political party, or any other person with an interest in an electoral redistribution, particularly if that party or person has made representations to the EDBC, should be entitled to bring an appeal against an order of the EDBC. It may also be prudent to allow the Court a power to preclude a political party from appearing on an appeal through a proxy if that party made representations before the EDBC. As a practical consideration, Parliament may also wish to contemplate prescribing a procedure for the giving of public notice that an appeal has been instituted and of the right of persons to be joined.
The EDBC is the first respondent to the appeal by force of s 86(3) of the Constitution Act. The EDBC adopted a neutral position in relation to the proceedings and indicated that it would submit to any orders made by the Full Court save as to costs. Nonetheless, the Court requested the Commission to attend at the hearing of the appeal and to file written submissions in order to assist the Court should the need arise. While the Commission filed short written submissions it did not advance oral argument at the hearing of the appeal.
The second respondent applied for, and was granted, leave to be joined as a party on 21 December 2016. The second respondent, Sascha Meldrum, is the State Director of the Liberal Party of Australia (South Australian Division) (the Liberal Party). Ms Meldrum responds to the appeal on behalf of the Liberal Party.
Part 5 of the Constitution – The Political Context
For much of the twentieth century, governments used their parliamentary majorities to directly enact electoral redistributions which enhanced their prospects of returning to government. It did not always turn out that way.
In 1913, the Liberal Government of Premier Archibald Peake secured the passage of the Constitution Further Amendment Act 1913 (SA) (the 1913 Amendment Act) which increased the number of members of the House of Assembly from 40 to 46.[4] It created 19 districts comprising six metropolitan districts, two regional urban districts (Wallaroo and Port Pirie) and 11 country districts defined in the Third Schedule. Each district elected two or three members as set out in the Third Schedule. The Third Schedule provided that of the 46 members of the House of Assembly 15 were elected from the metropolitan districts (33 per cent) whereas the position from 1901 until then was that 12 of a total of 40 were elected from the metropolitan districts (30 per cent). However, only a selected number of the metropolitan districts were awarded increased representation. The 1913 Amendment also legislated what until then had been only a political compact governing the relationship between the Legislative Council and the House of Assembly.[5] It enacted a procedure whereby the Legislative Council could suggest amendments to a Bill containing a money clause in ‘erased type’ but otherwise confirming the Legislative Council’s equality of power with the House of Assembly.[6] These powers were enacted after an attempt by the preceding Verran Labor government to secure Imperial legislative intervention to moderate the power of the conservatively-controlled Legislative Council.[7]
[4] Constitution Further Auendment Act 1913 (SA) s 8(2).
[5] Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) p 147.
[6] Constitution Further Auendment Act 1913 (SA) ss 24 and 26.
[7] Alex Castles and Michael Harris, Lawmakers and Wayward Whigs at p 298-299.
From the enactment of the Constitution Act 1886 (SA) the Legislative Council comprised all elected members but property qualifications were retained for electors of the Legislative Council and country electors were disproportionately represented. The less than democratic election of the Legislative Council was thought necessary to safeguard the ‘permanent will’ of the people.[8] The restricted franchise, together with the legislatively mandated disproportionate representation of regional electors remained until the 1970s. Until that time the Legislative Council was controlled by conservative political parties.
[8] Alex Castles and Michael Harris, Lawmakers and Wayward Whigs at p 302.
Notwithstanding these electoral changes, the Liberal Union lost government in the 1915 election to the Labor Party but was returned in the 1918 and 1921 elections.[9] The Labor Party then governed from 1924 until 1927 when it lost the election to the Liberal Federation.[10] In 1929 the Liberal Federation government of Premier Richard Layton Butler secured the passage of the Electoral Districts (Redivision) Act 1929 (SA) (the 1929 EDR Act). The effect of 1929 EDR Act is set out in para [128]-[130] of the judgment of the plurality.
[9] Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) pp 148, 150 and 153.
[10] Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) pp 155-156.
The electoral redistribution recommended by the Commission established by the 1929 EDR Act was not supported by either of the major political parties and it was therefore not enacted.[11] The election of 1930 was therefore held on the electoral boundaries fixed by the 1913 Amendment Act. With the onset of the great depression, the Liberal Federation lost government in that election but was returned under the leadership of Richard Butler in 1933.[12]
[11] State Electoral Office, South Australian Electoral Boundary Redistribution 1851 – 2003 (2006) pp 6 & 14; Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) p 159.
[12] Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) pp 159-160.
In 1934, the Constitution Act was enacted as a consolidating Act.[13] In addition to enacting the provisions set out in [132] of the judgment of the plurality, the Constitution Act as enacted in 1934 extended the term of the Butler government from three to five years.[14]
[13] Constitution Act 1934 (SA).
[14] Constitution Act 1934 (SA) s 28(2).
Accordingly in 1937, and without an intervening election, the Butler government amended the Constitution Act 1934 in the way summarised in [133] of the judgment of plurality. The 1937 Amendment Act effected a redistribution that had been recommended by a Committee chaired by Judge Paine[15] and which included the Commonwealth Deputy Returning Officer to the State and Surveyor-General.[16] The Committee was charged with the responsibility of effecting a redistribution which preserved ‘the present ratio of representation between the metropolitan and the extra-metropolitan districts’. The quota arrived at was 15,665 for metropolitan districts and 5,718 for extra-metropolitan seats.[17] The Committee worked to a self-imposed tolerance of 20 per cent which it exceeded only in the case of the geographically large electorate of Frome in the north-east of State which had only 4,219 electors.[18]
[15] Judge Paine was a Judge of the Local Court and Insolvency Court who later served as the State Returning Officer.
[16] Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) p 163.
[17] Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) p 163.
[18] Gordon D Combe, Responsible Government of South Australia Volume 1 (2009) p 163-164.
In the year of the enactment of the Constitution Act Amendment Act 1955 (SA), the quota for electors in each metropolitan district was 22,300 and in each country district was 6,657.[19]
[19] Gordon D Combe MC, Responsible Government in South Australia Volume 1 (2009) p 182.
Labor did not win office under the 1955 electoral boundaries until 1965 when it won 54 per cent of the State-wide vote to the Liberal Country League’s 44 per cent.[20] It, like earlier Labor Party governments, was not able to effect an electoral redistribution because conservative parties held the majority of seats in the Legislative Council.
[20] Alex Castles and Michael Harris, Lawmakers and Wayward Whigs (1987) p 302.
The Liberal Country League was re-elected under Raymond Steele Hall in 1968. The Premier and his Attorney-General, Robin Rhodes Millhouse, were supporters of electoral reform. A Bill for electoral reform which changed the rural-metropolitan weighting of electors from one third to two thirds passed the House of Assembly with bi-partisan support but was amended by Liberal Country League members of the Legislative Council.[21] Liberal Country League member of the Legislative Council, Sir Norman Jude, complained that the reform was a ‘rape of the country districts’.[22] It was also argued that favour should not be shown to the metropolitan area because many city people ‘have not been long enough in South Australia to have truly developed political loyalties’.[23] The amendments made by the Legislative Council were rejected by the House of Assembly and the Bill was ultimately passed by the Legislative Council only after a conference of managers under the deadlock provisions failed to reach agreement.[24]
[21] Professor Dean Jaensch, ‘Ch 12: Electoral Reform’ in Parkin & Patience (eds) The Dunstan Decade: Social Democracy at the State Level (1981) p 222; Alex Castles and Michael Harris, Lawmakers and Wayward Whigs (1987) p 306.
[22] Professor Dean Jaensch, ‘Ch 12: Electoral Reform’ in Parkin & Patience (eds) The Dunstan Decade: Social Democracy at the State Level (1981) p 223.
[23] Alex Castles and Michael Harris, Lawmakers and Wayward Whigs (1987) pp 303-307.
[24] Alex Castles and Michael Harris, Lawmakers and Wayward Whigs (1987) p 307.
The effect of the Electoral Districts (Redivision) Act 1968-69 (SA) (the 1969 EDR Act) empowered the Governor to appoint an Electoral Commission consisting of three members for the purpose of preparing a report to Parliament.[25]
[25] Electoral Districts (Redivision) Act 1968-69 (SA) ss 4, 8 and 11.
Notwithstanding the regional weighting of the resulting redistribution, the Labor Party under Premier Don Dunstan won government in the May 1970 election.[26] In 1971 during the term of that government, section 33(1)(a) of the Constitution Act was amended to extend adult suffrage to every person at least 18 years of age. The Labor government was again returned in the State election of March 1973.
[26] Robert Martin, Responsible Government in South Australia Volume 2 (2009) p 61-62.
In 1973 for the first time in the history of South Australian electoral legislation, a Labor government secured passage through the Legislative Council of a Bill to amend the Constitution Act. The Constitution and Electoral Acts Amendment Act 1973 (SA) constituted the State as a single Legislative Council district with full adult suffrage and preferential voting.
The Labor Party was again returned to government in 1975. In the Legislative Council the Labor Party held 10 seats, the Liberal Party 9 seats and the Liberal Movement 2 seats.[27] By that time population increases in metropolitan Adelaide, proportionally larger than the growth in South Australia’s regional population, had resulted in a malapportionment which again approached 3:1.[28]
[27] Professor Dean Jaensch, ‘Ch 12: Electoral Reform’ in Parkin & Patience (eds) The Dunstan Decade: Social Democracy at the State Level (1981) p 231.
[28] Professor Dean Jaensch, ‘Ch 12: Electoral Reform’ in Parkin & Patience (eds) The Dunstan Decade: Social Democracy at the State Level (1981) p 231.
In 1976, the Labor government secured the passage through the Legislative Council, in which the Liberal Movement held the balance of power, of the Constitution Act Amendment Act (No 5) 1975 (SA) which enacted Part 5 of the Constitution Act. Care must be taken when considering the Parliamentary debate on the introduction of the Bill to enact Part 5 to distinguish between political rhetoric and the articulation of the mischief. In particular, it is to be observed that the Premier’s reference to numerical equality was linked to the permissible tolerance. The mischief to which Part 5 was directed is best identified by the changes it expressly made.
The primary feature which differentiated Part 5 from all electoral legislation which had preceded it was the abolition of any weighting in favour of rural electors by the enactment of a single State-wide quota, and the establishment of a standing tribunal to regularly review electoral boundaries. The EDBC was allowed a similar tolerance around the quota as that allowed by earlier Commissions. The relevant considerations to which the EDBC was required to have regard by s 83 of the Constitution Act were similar to those imposed on earlier Commissions. Significantly the EDBC was not expressly charged to draw, as far as reasonably practicable, electoral districts of equal numbers of electors.
The first EDBC constituted pursuant to Part 5 gave its report in 1976.[29] The 1976 EDBC discussed a contention that it should have regard to existing voting patterns so that it might guard against a party winning government with less than 50 per cent of the popular vote. It rejected the contention explaining:
It is not argued that we can apply the criterion of political voting patterns as the major criterion, disregarding the mandatory criteria where they conflict with it. The effect of the argument, in its final form, is that the Commission should create a map in conformity with the mandatory criteria and, having done so, should look at the map for a second time in order to see whether, despite such conformity, it appears to be politically skewed. If it appears to be skewed the Commission should try to diminish or eliminate the skewing by making such alterations as are open if the mandatory criteria continue to be applied. We think that a fair redistribution is one which conforms to the directions and purposes of the legislation pursuant to which it is made, and we agree that we must try to make such a redistribution. We have not distorted any boundary in order to achieve a particular voting pattern. … In our view we have in the total proposed redistribution given, as far as practical, the maximum weight to the mandatory criteria taken as a whole. Any other arrangement of boundaries would, in our view, be less satisfactory because of being less in accordance with those criteria taken as a whole. If a boundary can be drawn in any one of a number of positions when the mandatory criteria are properly applied should we consciously draw the boundary in such a way as to attempt to affect voting patterns? That is the question raised by the submission just mentioned. The voting patterns referred to are the voting patterns of the whole of the electors in the State, for the aim is that the party with the majority of the total votes should gain a majority of the total seats. It follows that a change in boundaries in some areas in order to create some more marginal seats in some districts will not necessarily bring about the consequence that the party with the majority of the total votes cast in the election will have the majority of the seats. We suggest that only if the whole State constituted one district for the House of Assembly, as it does now for the Legislative Council, could this result be assured. And even then there could be argument as to the weight to be given to second and subsequent preferences. Voting patterns will, we think, often reflect communities of interest. We think that we should concentrate on communities of interest and let voting patterns follow as a consequence. We are exceedingly reluctant to engage in speculation as to how electors will vote.
[29] Robert Martin, Responsible Government in South Australia Volume 2 (2009) p 88; Professor Dean Jaensch, ‘Ch 12: Electoral Reform’ in Parkin & Patience (eds) The Dunstan Decade: Social Democracy at the State Level (1981) p 233.
The following observations need to be made about that passage. First, in context, it is the disproportionate concentration of conservative votes in regional seats that the rejected proposal hoped to address. Secondly, it was that disproportion, and therefore the electoral consequences of a strict equality of numbers, which stood in the way of a universal acceptance of that principle in 1975 and its express enactment. Finally, that passage shows that the 1976 EDBC addressed the problem obliquely, as Part 5 was calculated to allow it to do, by making use of the tolerance and the communities of interest and communications considerations to ameliorate the disproportion as best it could. The former consideration tends to reduce the number of electors in country electors because it is a reason not to bring the numbers in rural electorates up to the quota by adding sprawling urban areas to them. The latter consideration does so because communications with electors over great distances are more feasible if elector numbers are smaller.
Dissatisfaction with the fairness of the approach taken by the 1976 EDBC,[30] and other aspects of Part 5 of the Constitution Act 1934 led to the establishment of a Parliamentary Select Committee in 1990. Extracts from the 1990 Select Committee Report are set out at [146]-[147] of the plurality judgment. Those extracts show that the enactment of s 83(1) of the Constitution Act was in accordance with the 1990 Select Committee’s Report’s recommendation and intended to ensure, as far as practicable, that the single State-wide quota, and associated 10 per cent tolerance, did not detract from the value of votes in selecting the government by reason of the disproportionate distribution between districts of a political party’s electoral support.
[30] Robert Martin, Responsible Government in South Australia Volume 2 (2009) p 88; Professor Dean Jaensch, 'Ch 12: Electoral Reform' in Parkin & Patience (eds) The Dunstan Decade: Social Democracy at the State Level (1981) p 233. See also 1983 Report of the Electoral Districts Boundaries Commission, [11]-[15].
The legislative history of electoral boundary redistributions in South Australia, when understood in their political context, demonstrates that the enactment of Part 5 was intended to remedy the long-standing, gross malapportionment between metropolitan and country electoral districts, by setting different metropolitan and country quotas, which until then had favoured conservative political parties. Moreover, it was the product of pragmatic political compromise. It was not the product of a strong political consensus in support of electoral districts with, as far as reasonably practicable, an equal number of electors. The meaning of, and fairness of, the catchcry ‘one vote one value’ were, and remain, contested ground. The appellant’s contention that s 77 of the Constitution Act includes an implication that subordinates other considerations to numerically equal electorates finds no support in its historical or political context.
The value of a vote
The appellant relies heavily on the aphorism ‘one vote one value’ in support of its contention that s 77 of the Constitution implies numerical equality of electors as an objective or relevant consideration. Generally the phrase means that electorates should be as close to numerically equal so that each elector’s vote carries the same ‘value’ in electing a representative. In a simplistic, non-party, representative model electors in numerically equal electorates may have votes of equal value if the interests of electors within each electorate are largely homogenous but different to the interests of electors in the other electorates. That might be the case if electorates are constituted solely by communities of interest of the kind referred by s 83(2)(a) of the Constitution Act. However that is not a contemporary political reality.
Numerical equality might also confer an equality of value when measured by reference to the representative services that elected members of Parliament provide to electors. On that measure, an elector in an electorate with many more electors than another electorate has less of his or her representative’s time and attention and therefore, it might be said, his or her vote is of lesser value. However, that reasoning is simplistic in that it fails to take into account the tyranny of distance, albeit now moderated by technology, that afflicts regional electorates.
The aforementioned ‘values’ of a vote are largely parochial. However, electors have socio-political interests which extend well beyond their local community and local representative. Electors in Australia are critically interested in the identity of the government of their State and of the Commonwealth. Indeed, the modern political reality is that it is that facet of the value of their vote in which electors are most interested. In a system of responsible government the sovereign is the executive selected by the party which has the support of the lower house of Parliament and for that reason will, speaking generally, control its legislative program. In a political system of representative and responsible government the paramount value of an elector’s vote is its capacity to affect which group or groups of parliamentarians (party or parties) will form government.
However, the history of South Australia’s electoral regimes shows that there has not always been a strong political consensus that equality of influence in the selection of the government party is desirable. For much of the 20th century many believed that the socio-economic welfare of the State was best advanced by giving regional votes a greater weight. That approach is analogous to the unequal weighting given by the Constitution to votes in the less populous Australian States in electing the Senate and for the purposes of s 128 of the Constitution.[31]
[31] McGinty v Western Australia (1995-1996) 186 CLR 140 at 236-239 per McHugh J.
‘One Vote One Value’ – Judicial Exegesis
The provisions of ss 77 and 83 of the Constitution Act 1934 have analogues in other State and Commonwealth electoral regimes.
In Attorney-General of the Commonwealth & Anor v Commonwealth (McKinlay) the High Court considered the proper construction of s 19 of the Commonwealth Electoral Act 1975 (Cth) (s 19) which at that time provided:[32]
[32] (1975) 135 CLR 1 at 76.
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.
In McKinlay Barwick CJ recognised that there was some tension between the community interest criterion of s 19 and demands for numerical elector equality. That is so because, as I have observed, the community interest criterion, and even more so the communications criterion, tend to decrease elector numbers in regional electorates relative to urban electorates. Barwick CJ explained:
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, ground 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.
In that passage Barwick CJ recognises that the value of a vote is multi-faceted. These facets are reflected in s 19 of the Commonwealth Electoral Act 1975 (Cth) and have a long legislative history in this State and other parliamentary democracies. In his Honour’s view s 19 enacted a scheme informed by that ‘long parliamentary experience’. It should be emphasised that Barwick CJ used the term ‘equality of voting value’ in contra-distinction to a numerical equality of electors. The view expressed in the above passage is that the percentage tolerance operated as a hard constraint on the discretion conferred by s 19 but that neither the tolerance, nor numerical equality of electors are, in themselves, statutory objectives or considerations.
On the other hand McTiernan and Jacobs J accepted that numerical equality of electors was a statutory objective:[33]
Section 18 provides for the ascertainment of a quota for each district based on the whole number of electors in each State. … A quota of electors is in these circumstances a sound basis for electoral division.
Section 19 envisages a degree of inequality in electoral districts in that the Distribution Commissioners are required to give due consideration, in relation to each proposed division, to a number of factors and circumstances and may in that consideration depart from the equality which the quota represents; but the departure cannot be more than one-tenth either side of the quota. Equality is thus the objective to be sought but the need for some departure therefrom is recognized. We see no inconsistency between these provisions and the constitutional requirements in s. 24. Indeed, some of the requirements are necessary in order to make clear the duty to avoid any unnatural divisions of the kind which are found in gerrymandering, divisions which themselves could be inconsistent with the constitutional requirement. A margin of one-tenth is not one which in these circumstances takes away the quality of choice which s. 24 of the Constitution enjoins.
…
[33] (1975) 135 CLR 1 at 37.
In McGinty and Others v The State of Western Australia (McGinty) the High Court considered the validity of an electoral malapportionment in Western Australia which produced country electorates with about half the number of electors as metropolitan electorates. The malapportionment was statutorily mandated by the Electoral Distributions Act 1947 (WA) which established different quotas for metropolitan and country electorates. The High Court, by majority, held that there was no implication, in s 73 of the Constitution Act 1889 (WA), which imposed a manner and form requirement on any Bill which detracted from the principle that parliamentarians should be ‘chosen directly by the people’, that electorates must contain substantially the same number of electors.
In McGinty Dawson J recognised that if a party’s votes are disproportionately distributed between electorates, an equality of electors in electorates may detract from the value of a vote in selecting the party of government as effectively as unequal numbers. Dawson J discussed both malapportionment and disproportion in the following passages:[34]
As Barwick CJ pointed out in McKinlay no Australian colony at the time of federation insisted upon practical equality in the size of electoral divisions and the view was then plainly open that problems of communication and access in geographically large electorates outside a metropolitan area justify different numerical sizes in electoral divisions. That is a view which obviously still prevails in Western Australia under the current legislation.
Clearly there is force in the contrary view which holds that the effect of unequal electoral divisions – malapportionment – is to weight the value of votes in the numerically smaller divisions. But the extra weight is only in the consequence that an elector in a smaller electorate is required to share his or her representative with a lesser number of electors than in the larger electorate. There are other ways, perhaps more significant, in which the value of a vote may be affected as, for example, where electoral divisions are defined in such a way as to allow one party in a two party system to return a majority of representatives with less than a majority of the total votes, which may occur whether or not malapportionment also exists. Disproportion of this kind may be intentionally caused by a gerrymander. Of course, the problems arising from malapportionment and disproportion would largely disappear if there were no electoral divisions within a State and a system of proportional representation were adopted – something envisaged by s 29 of the Constitution. But such a system may be to the detriment of a two party system by encouraging the growth of splinter groups. Barwick CJ adverted to the problems in McKinlay when, assuming electoral divisions, he said:
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.
(citations omitted)
[34] (1995-1996) 186 CLR 140 at 185.
The concept of disproportion explained in that passage was at the heart of the recommendations of the Parliamentary Select Committee reproduced in [145]-[147] of the plurality judgment. It is a major part of the mischief to which s 83(1) of the Constitution Act is addressed. It is also the mischief to which the order of the 2016 electoral redistribution order is directed.
Although elliptically expressed, s 83(1) of the Constitution Act seeks to achieve the fairness to the body politic of an electoral redistribution by delivering government to the party favoured by the majority of electors. If support for political parties is uniformly distributed across all electorates, the objective of s 83(1) of the Constitution Act aligns with the principle of numerical equality of electors, and the value of all votes is optimised by having electorates in which the number of electors approximates the quota. However, when the electors who support a particular group of candidates, or party, are so unevenly distributed between electorates of equal number that they form very great majorities in a small number of electorates, and fall just short of a majority in many others, the value of their vote in determining which group of candidates forms government is diminished. The EDBC found that to be the case in South Australia because of the relatively greater concentration of conservative voters in regional electorates. That soundly based finding is not challenged.
An uneven distribution of electors might also be achieved by drawing the boundaries of numerically equal electorates in a way which results in one party winning electorates by disproportionate high majorities and the other party winning its electorates by disproportionate low majorities. Drawing electorate boundaries in a way that amalgamates pockets of local strongholds for one party or the other in a single electorate is a form of gerrymander. The expression derives from Governor Elbridge Gerry who in 1812 manipulated the electorates of Massachusetts in that way. One such electorate resembled a salamander. A gerrymander might also be achieved by drawing electorates with unequal numbers of electors or by employing both the snaking and unequal number strategies.
The EDBC of course is prohibited by both good faith obligations and s 83 of the Constitution Act from ‘gerrymandering’ electorates on a redistribution. That being so it is difficult to see why Part 5 of the Constitution Act should be construed in a way which obstructs the EDBC from mitigating, within the tolerance allowed by s 77 of the Constitution Act, the effects of a naturally occurring disproportion.
Part 5 of the Constitution – The Provisions
Section 78 of the Constitution Act establishes the membership of the EDBC:
78—The Commission
(1) There shall be a Commission by the name of the Electoral Districts Boundaries Commission constituted of the following members:
(a)the Chairman of the Commission who shall be a Judge of the Supreme Court appointed by the Chief Justice to be Chairman of the Commission; and
(b)the Electoral Commissioner or a person appointed pursuant to subsection (3) of this section; and
(c)the Surveyor-General or a person appointed pursuant to subsection (4) of this section.
The members of the EDBC in 2016 were the senior puisne Judge of the Supreme Court, the Acting Electoral Commissioner (appointed in lieu of the Electoral Commissioner) and the Surveyor-General. While a Supreme Court Judge is the Chairman of the Commission pursuant to s 78(1)(a) of the Constitution Act, the Commission does not sit as a division of the Supreme Court but is instead a Constitutional tribunal. Nor is the EDBC an executive agency even though its two other members are statutory office holders. Its expenses are paid directly from the consolidated revenue on the issue of a certificate by the Auditor-General.[35] The executive is, by implication, prohibited from giving the EDBC any directions on how to make an electoral distribution. Moreover, the orders of the EDBC are effectively self-executing by force of s 14 of the Electoral Act 1985 (SA).
[35] Constitution Act 1934 (SA) s 87.
Section 82 of the Constitution Act provides that the primary purpose of the EDBC is to redraw the electoral boundaries of the State’s electoral districts from time to time as mandated by the Constitution Act. The EDBC undertakes this task in the context of a number of statutory considerations discussed below.
Section 82 of the Constitution Act requires the EDBC to commence proceedings for the making of an electoral redistribution within 24 months of a general election of the House of Assembly. Once commenced, the EDBC must complete those proceedings with due diligence.[36]
[36] Constitution Act 1934 (SA) s 82(3)
There was a general election for the House of Assembly on 15 March 2014. In December 2015, the EDBC published an advertisement[37] in a number of metropolitan and regional newspapers inviting interested persons to make submissions or appear before it.[38] Public hearings before the EDBC commenced in Adelaide on 2 February 2016. There were also public hearings in regional South Australia in June 2016. The EDBC published a draft report on 15 August 2016.
[37] 2016 Report of the Electoral District Boundaries Commission, Appendix 2 sets out the form of the advertisement.
[38] 2016 Report of the Electoral District Boundaries Commission, Appendix 1 contains a list of the relevant newspapers.
Submissions in relation to the draft report were received in September 2016. Later that month, the EDBC held a final hearing in which submissions were received from the Labor Party, the Liberal Party and others.
Section 77 of the Constitution Act controls the number of electors in each electorate on the basis of a State-wide electoral quota:
77—Basis of redistribution
(1)Whenever an electoral redistribution is made, the redistribution shall be made upon the principle that the number of electors comprised in each electoral district must not (as at the relevant date) vary from the electoral quota by more than the permissible tolerance.
(2)In this section—
electoral quota means the nearest integral number obtained by dividing the total number of electors for the House of Assembly (as at the relevant date) by the number of electoral districts into which the State is to be divided as at the first polling day for which the order is to be effective;
permissible tolerance means a tolerance of ten per centum;
the relevant date means a date specified in an order as the relevant date, being a date falling not earlier than six months before the date of the order.
I observe here that s 77 expressly imposes an absolute limit on the variation in the number of electors in the electoral districts on the relevant date. It does not expressly:
·impose any limit on the variation from the quota on election day;
·mandate numerical equality of electors as a consideration or objective of the EDBC in making an electoral redistribution.
Whether or not an implication to either effect should be drawn from s 77 of the Constitution is the primary issue on this appeal.
Section 83 of the Constitution Act provides:
83—Electoral fairness and other criteria
(1)In making an electoral redistribution the Commission must ensure, as far as practicable, that the electoral redistribution is fair to prospective candidates and groups of candidates so that, if candidates of a particular group attract more than 50 per cent of the popular vote (determined by aggregating votes cast throughout the State and allocating preferences to the necessary extent), they will be elected in sufficient numbers to enable a government to be formed.
(2)In making an electoral redistribution, the Commission must have regard, as far as practicable, to—
(a) the desirability of making the electoral redistribution so as to reflect communities of interest of an economic, social, regional or other kind;
(b) the population of each proposed electoral district;
(c) the topography of areas within which new electoral boundaries will be drawn;
(d) the feasibility of communication between electors affected by the redistribution and their parliamentary representative in the House of Assembly;
(e) the nature of substantial demographic changes that the Commission considers likely to take place in proposed electoral districts between the conclusion of its present proceedings and the date of the expiry of the present term of the House of Assembly,
and may have regard to any other matters it thinks relevant.
The objective imposed by s 83(1) of the Constitution Act and the matters prescribed by s 83(2) are all matters to which the EDBC must have regard. They are in that sense all relevant considerations. Moreover, some of the matters prescribed by s 83(2) of the Constitution Act suggest an objective which the EDBC should pursue, for example attempting to create electorates with a community of interest (s 83(2)(a)) and electorates in which communications between electors and their member of Parliament are feasible (s 83(2)(d)). However, s 83 of the Constitution Act distinguishes between those matters in an important respect by expressly giving the objective in s 83(1) predominance over the considerations prescribed by s 83(2). The EDBC is duty bound to ‘ensure as far as practicable’ the objective imposed by s 83(1) of the Constitution Act and can therefore only ‘have regard to’ the s 83(2) considerations as far as it is practicable to do so consistently with that duty.
The Proper Construction of s 77
The electoral quota is calculated by dividing the number of electors by the number of electoral districts. Section 77 of the Constitution Act permits a tolerance of 10 per cent from that number. The number obtained as the electoral quota represents a numerical equality of electors. It is difficult to see how the very basis of the calculation of the quota was not intended to be a relevant consideration.
Moreover, equality of influence in selecting the government is now a generally accepted democratic value in Australia. It is the value underlying the recommendation of the 1990 Select Committee Report to enact s 83(1) of the Constitution Act. In a district based electoral system, and save for naturally occurring disproportion and gerrymandering, numerical equality of electors preserves that democratic principle.
The subject matter, scope and purpose of the power conferred on the EDBC therefore support an implication that a numerical equality of electors is a mandatory consideration.
I acknowledge that the implication of a mandatory relevant consideration into s 83(2) of the Constitution Act, in addition to those already prescribed, affects the weight that all, or at least some, of those prescribed considerations may be given. However, Parliament has, by the concluding words of that section, allowed for precisely that if the EDBC itself sees fit to have regard to ‘any other relevant matter’. Therefore, the considerations expressly prescribed by s 83(2) of the Constitution Act do not exclude the implication of others.
I acknowledge too that given that the concluding words of s 83(2) of the Constitution Act which allow the EDBC to have regard to a numerical equality of electors, if it saw fit to do so, it is perhaps unnecessary to imply a term that it is a mandatory consideration. However, the test for drawing a statutory implication is not that it must be necessary. It is enough that the implication clearly arises from the text, subject matter, scope and purpose of the enactment. Even though the relative weight given to the numerical equality of electors’ consideration may vary, I cannot contemplate any circumstance in which the EDBC could legitimately ignore it altogether.
The appellant contends that the impugned statement is wrong because such evidence was given by Mr Hamilton-Smith and Professor Macintyre. Mr Hamilton-Smith was the leader of the Liberal Party between 2007 and 2009 and Deputy Leader for one week in 2010. He became an independent in May 2014 and accepted appointment by the Labor government as Minister for Investment and Trade, Defence Industries and Veterans’ Affairs. Professor Macintyre is an Emeritus Professor of Politics at the University of Adelaide.
The evidence of Mr Hamilton-Smith and Professor Macintyre
The first issue is whether there was in fact evidence given by Mr Hamilton-Smith and Professor Macintyre that poor placement of resources during the 2014 election campaign by the Liberal Party elevated its two-party preferred vote without increasing the number of seats won.
This issue involves a complex proposition that there was evidence before the Commission first, of the placement of resources by the Liberal Party during the 2014 election campaign as between “marginal” electorates and “safe” electorates; secondly, that the placement was strategically poor; thirdly, that the strategically poor placement elevated the Liberal Party’s two-party preferred vote; and fourthly, that the strategically poor placement did not increase the number of seats won.
The appellant relies on two passages from the testimony given by Mr Hamilton-Smith and Professor Macintyre as evidence of this complex proposition. When considered in context, the testimony is not evidence of that complex proposition.
The principal passage relied on by the appellant from the testimony given by Mr Hamilton-Smith is as follows:
I think it’s a matter too of how you campaign. An extended, or a friend of the extended family living in the seat of Elder, who is Muslim, pointed out to me that, at the local mosque within the seat of Elder, Labor Party representatives had visited the mosque on three occasions to speak with the community, lobby with the community, and appeal for votes, while the Liberal candidate had not been once. You know, you need to get out – you need to have a structure on the ground in the marginal seats. You need to have representation in the marginal seats. You need to have people pitching for you in the marginal seats that look and feel like that community, and I think this is an area where the Liberal Party struggles, and there is a risk.
This passage, considered in isolation, does not comprise evidence of any of the four components identified above of the complex proposition considered by the Commission. In any event, it is necessary to consider this passage in context.
The passage relied on by the appellant formed part of a lengthy passage of testimony by Mr Hamilton-Smith extending over two pages of transcript in which he posed the question “why the Liberal Party has struggled to win a majority of seats whilst winning a majority of the votes”. Mr Hamilton-Smith identified several reasons why this may be the case. First, the Liberal Party lacks a party platform. Secondly, the Liberal Party has favoured a “low target, small profile strategy”, effectively waiting for the government to lose. Thirdly, the Liberal Party has not had sufficient cultural and gender diversity. Fourthly, the Liberal Party has focused on its safe seats and not broadened its appeal into the marginal seats. The first three matters were outside the scope of the Commission’s finding of no evidence which was confined to “poor placement of resources” and did not extend to platform, policies and diversity.
Even in relation to the fourth matter, Mr Hamilton-Smith focused on pre-election promises of expenditure in particular electorates, which again relates to policies rather than “poor placement of resources”. He gave examples of promises by the Liberal Party before the 2014 election of expenditure of $6 million in Goyder and $15 million and millions more in Hammond, both being safe seats, compared to a promise of only $272,000 in the marginal seat of Ashford. Mr Hamilton-Smith then gave the anecdote concerning the local mosque in Elder the subject of the passage extracted above which was the only reference capable of being regarded as relating to “poor placement of resources”. The thrust of Mr Hamilton-Smith’s testimony related to platform and promises being matters which manifestly merely form the factual matrix that determines why individual voters vote for one party’s candidate or another.
The cross-examination of Mr Hamilton-Smith by counsel for the Democrats included the following question and answer:
Q:You mentioned in your evidence promises of spending in electorates post-election if you formed government, so things like $11 million on the racecourse at … Murray Bridge … and something at Tailem Bend, or things like that. Was there a significant differential between the marginal seats and the safe seats on the actual election spend, that is, the spend of money on paraphernalia, corflutes, letterboxing, all those sorts of things?
A:Look, I – I am probably not in a position to, you know, give you all that information … my understanding is that when it came to the mechanics – you know, corflutes, newsletters, how to vote cards – you know, those sorts of mechanical resources, I think the marginal seat members had what they – what they needed, you know, to – to – to do the basics. My understanding is there – there was no shortage with funds for the campaign … I think the problems were more strategic, and I’ve given the examples.
Mr Hamilton-Smith was not asked any questions by counsel for the Labor Party or the Liberal Party. The only evidence he gave about campaign funding and resources was the evidence he gave during cross-examination by counsel for the Democrats, during which he said that he did not know details of resources but his understanding was that there was no shortage of funds and the marginal seat candidates had what they needed. No foundation was laid for any of the four steps in the complex proposition referred to above. If the Labor Party had wished to adduce evidence in support of the complex proposition, it could have asked questions of Mr Hamilton-Smith to elicit any relevant knowledge he might have had but it chose not to do so.
Considered in context and as a whole, the testimony of Mr Hamilton-Smith was incapable of comprising evidence of any of the four matters comprising the complex proposition the subject of the Commission’s impugned statement.
The principal passage relied on by the appellant from the testimony given by Professor Macintyre is as follows:
But at the same time – and coming back to the point you made – I think that there is also an argument to be made that … either party could have won the 2014 election. It was literally, arguably, down to 316 votes in one district that made the difference. And we should not in any consideration of that simply look at the raw numbers, we need to be aware of the behaviour of the players in context. And I was on record after the election, I think on the election night when I was doing commentary on one of the television stations, and in my public utterances after the election and saying that I thought that Labor’s strategy and tactics were superior, that they allocated resources in the critical seats that they had to win, and that the Liberals … allocated resources in a way that made it harder for them to win those critical marginal seats … we should also recognise that in many elections Labor, for different reasons, has been able to outcampaign and outperform, and won – just – some critical seats that have delivered it government.
Again, this passage considered in isolation does not comprise evidence of any of the four components of the complex proposition considered by the Commission. In any event, it is necessary to consider this passage in context.
In his testimony in chief, Professor Macintyre was asked why South Australia had the distinct characteristic of governments more frequently winning elections with less than 50 per cent of the two-party preferred vote. He gave as reasons the small number of seats and the small population in each district in South Australia coupled with the political topography of the State, which sees large numbers of supporters for one party concentrated in particular areas of the State and allows very large numbers of votes to be garnered by that party for a relatively small return of seats.
Professor Macintyre gave his testimony by reference to a report he had prepared which became an exhibit before the Commission. In that report he had said “This Commission cannot be responsible for the performance of parties or candidates at either the state or local electoral district”. Asked during his testimony in chief to elaborate, Professor Macintyre said:
The Commission can make its best endeavours to provide a fair playing field, and provide a set of boundaries where a party winning majority of the two-party preferred vote across the state might reasonably expect to win 24 of the 47 seats. But the Commission can’t make any allowance for the quality of the candidates that parties select … We’ve had cases where particular parties have run very efficient and powerful campaigns and other parties with fewer resources have run less attractive campaigns. We’ve had cases where parties will concentrate their resources very considerably on seats which, I would argue, they either can’t win or can’t lose, and have not concentrated resources on marginal seats that would be essential to the – winning of which would be essential overall victory. So the Commission is invited to draw boundaries several years out from the election before candidates are announced, before campaign issues are in the air, before potentially the leaders of each of the political parties that will take the parties to the election are known, and therefore I’m arguing there is a whole set series of variables which can, if you like, undo the very best work that the Commission has endeavoured to put in place.
The principal passage from Professor Macintyre’s testimony relied on by the appellant extracted at [250] above was part of a long answer to a question asked by counsel for the Labor Party who put to him that the results of the 2014 election confirmed that, largely speaking, the previous Commission got it right. Professor Macintyre disagreed with this proposition. After saying that he was on record as saying that he did not consider that the redistribution was outrageously unfair and referring to differences between reality and perception, Professor Macintyre said:
I do note that in South Australia we have results where parties winning less than 50 per cent of the popular vote – two-party preferred vote – win office more often than is the case in any other jurisdiction. So it seems to me there’s a couple of points to make: one is that that suggests to me that there may well be some – some bias of some sort in the system that we need to be thinking about and endeavouring to address; and I’ve come up with a couple of suggestions on how that might be done. But at the same time – and coming back to the point you made – I think that there is also an argument to be made that … either party could have won the 2014 election. It was literally, arguably, down to 316 votes in one district that made the difference. And we should not in any consideration of that simply look at the raw numbers, we need to be aware of the behaviour of the players in that context. And I was on record after the election, I think on the election night when I was doing commentary on one of the television stations, and in my public utterances after the election and saying that I thought that Labor’s strategy and tactics were superior, that they allocated resources in the critical seats that they had to win, and that the Liberals … allocated resources in a way that made it harder for them to win those critical marginal seats. So, for me as an objective independent observer, I think we would be foolish to deny that there is some bias in the system because the results consistently across many years suggest that is the case, but we should also recognise that in many elections Labor, for different reasons, has been able to outcampaign and outperform, and won – just – some critical seats that have delivered it government.
Considered in context, Professor Macintyre’s principal point was that there was an institutional imbalance (or bias) in the system and his reference to the strategy and tactics of the two parties was a subsidiary point made to avoid an imbalanced response to the question. Professor Macintyre was rolling together strategy, tactics and allocation of resources. He did not identify what he meant by “allocation of resources” nor provide any facts on the basis of which any assessment at all could be made by the Commission about the Liberal Party’s allocation of resources in marginal electorates.
If the Labor Party wished to invite the Commission to make a finding that poor placement of resources during the 2014 election campaign by the Liberal Party elevated its two-party preferred vote without increasing the number of seats won, it was incumbent on it to adduce evidence, whether from Professor Macintyre or otherwise, of the placement of resources by the Liberal Party during the 2014 election campaign as between “marginal” electorates and “safe” electorates; that this placement was strategically poor; that this strategically poor placement elevated the Liberal Party’s two-party preferred vote; and that this strategically poor placement did not increase the number of seats won. If the Commission had made findings in favour of the Labor Party on each of these matters on the basis of the testimony of Professor Macintyre and Mr Hamilton-Smith, it would have been open to the criticism that it made those findings without any evidentiary basis.
It is true, as the appellant points out, that pursuant to section 84 of the Act and section 7 of the Royal Commissions Act 1917 (SA), the Commission is not “bound by the rules or practice of any court or tribunal as to procedure or evidence”. However, as Evatt J said in The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott:[126]
Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."[127]
[126] (1933) 50 CLR 228.
[127] At 256. See also Kostas v HIA Insurance Services Pty Ltd [2010] HCA, (2010) 241 CLR 390 at [17] per French CJ; Soliman v University of Technology, Sydney [2012] FCAFC 146, (2012) 207 FCR 277 at [25] per Marshall, North and Flick JJ; Sullivan v Civil Aviation Safety Authority [2014] FCA 93, (2014) 226 FCR 555 at [93]-[97] per Flick and Perry JJ.
In any event, the explicit subject matter of the impugned passage was evidence before the Commission. In that passage, the Commission rightly observed that there was no evidence before the Commission to suggest that poor placement of resources during the 2014 election campaign by the Liberal Party elevated its two-party preferred vote without increasing the number of seats won.
The meaning and effect of the impugned statement
Given the conclusion reached above, it is not strictly necessary to consider the meaning and effect of the impugned statement. However, as it was fully argued, it is addressed below.
The impugned statement needs to be considered in its context. That context can be seen from the passage from the Commission’s report extracted at [159] above. That context was that the Commission was addressing the question whether “there is an innate balance against the Liberal party caused by voting patterns in South Australia upon which have been imposed successive redistributions”.
The Commission concluded that there was such an imbalance, relying on the table of election results since 1977 reproduced by the Commission based on a table prepared by Professor Macintyre; statistical evidence given by Professor Bean; voting statistics reproduced in Appendices 6 and 12 showing overwhelming majorities in safe rural Liberal Party districts on a scale unmatched by any safe Labor Party districts; and the geography of South Australia. Given the long-term nature of the observed imbalance, the Commission’s conclusion in this respect was incapable of being gainsaid by an analysis of campaign expenditure across electorates in the 2014 election.
At a more fundamental level, the placement of resources by reference to electorates, like other aspects of strategy and tactics, is simply part of the broader, largely opaque, factual matrix that determines why individual voters vote for one party’s candidate or another. It is no part of the role of the Commission to speculate about or enquire into voters’ reasons for voting for a particular candidate or to change the electoral redistribution that it would otherwise make by reference to its assessment of the nature or identity of such reasons. For the reasons explained by Professor Macintyre in his evidence in chief extracted at [253] above, the Commission simply takes voting statistics within localities as a factum or input in determining a fair and appropriate redistribution. In this respect, there is no reason to differentiate between a party’s platform and policies and its allocation of campaign resources.
Even if the Commission had erred in making the impugned statement, in its context this would have been incapable of affecting the relevant conclusion by the Commission concerning the historical institutional imbalance.
Order not duly made
The respondent contends that, even if the Commission erred in making the impugned statement which in turn impacted the validity of the conclusion by the Commission, this would not in any event have resulted in the order not being duly made in accordance with the Act. The respondent further contends that in any event no relief on appeal should be granted in the exercise of this Court’s discretion.
Given the conclusions reached above, it is neither necessary nor appropriate to express a view on these contentions. In the absence of this Court finding error in the first place, there is no context in which these contentions could be considered.
Conclusion
The appeal should be dismissed.
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