McGinty & Ors v State of Western Australia

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P44 of 1993

B e t w e e n -

JAMES ANDREW McGINTY

First Plaintiff

GEOFFREY IAN GALLOP

Second Plaintiff

STANLEY JOHN HALDEN

Third Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 SEPTEMBER 1995, AT 10.19 AM

(Continued from 12/9/95)

___________________

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: May I hand to the Court the extracts from Professor Coper’s paper that I referred to yesterday. Yesterday I had turned to part B of our submissions dealing with the issue whereby, in our submission, electoral equality of individual voters is by definition a part of representative government. If I could take the Court to part B of our submissions commencing page 8. The steps of our proposition there are, firstly, by reference to the Australian Capital Television decision, to say that the particular constitutional freedom recognised there to communicate with respect to political matters was held to exist because it was necessary or indispensable to enable the constitutional principle of representative government to be effective.

In paragraph 12 we make the point that in that case and Theophanous and Stephens which applied it, this principle of representative government invalidated laws which disproportionately abridged that freedom. We next make the point that the principle of electoral equality, in our submission - by that we mean one vote, one value - is as indispensable to the form of representative government as freedom of political communication. We say also freedom of communication is a practical necessity in order for representative government to be able to function, but our submission is electoral equality is part of the conception of representative government itself. In paragraph 14 we make the point that ultimate sovereignty ‑ ‑ ‑

BRENNAN CJ: Is there anything to develop those assertions?

MR GRIFFITH: Yes, there is, your Honour. Firstly, your Honour, what follows - which I am not going to take your Honour to the dot points, as it were, they are the citations which speak for themselves. But, your Honours, what we are doing here is taking the matter step by step as a development. It is not an assertion made where it is . It is an assertion which continues to be supported by what follows, in our submissions. So in paragraph 15, we make the point that under the system of responsible government which permeates the Constitution, we submit that that is part of the fabric on which the written words of the Constitution are superimposed.

DAWSON J: Can I just take you back, Mr Solicitor, to paragraph 14. What does the first line of that paragraph mean?

MR GRIFFITH: Paragraph 14, your Honour?

DAWSON J: Yes.

MR GRIFFITH: The system of representative government embodied in the Constitution, your Honour?

DAWSON J: “Ultimate sovereignty resides in the people of Australia”. We are talking in terms of grundnorms, or someone was. I understand that “the grundnorm” is that you trace back the particular system to the people in the sense that if a system government is not accepted by the people in anything but a totalitarian regime, it is not a system of government. But does it mean anything more than that?

MR GRIFFITH: Your Honour, our submission is that it does, and I intended to enlarge on that in part C of our submissions dealing with the application of section 106. May we deal with it there, your Honour?

DAWSON J: Yes.

MR GRIFFITH: In paragraph 16 we submit that the concepts of representative and responsible government recognised by this Court as embodied in the Constitution signify government by the people through their representatives. In paragraph 17 we submit that this necessarily presupposes that every member of the people of the Commonwealth has an equal share in the political processes which the Constitution ordains and sustains. If I may leave on one side at the moment the question of suffrage in 1900, which was opened yesterday, and deal with that as a separate point.

In our submission, the democratic right to participate equally in the electoral process is not formal. Government by the people necessarily implies that each voter has a substantially equal voice in determining the choice of representatives of the people.

So, as to this aspect, our submission is that a system in which the votes of some voters carries significantly more weight than the votes of others is inconsistent with the essential concept of representative government or government by the people.

GUMMOW J: But government by the people is a fairly slippery concept, is it not, in a rigid constitution? The whole doctrine of judicial review, in fact, has to be accommodated to that.

MR GRIFFITH: That is so, your Honour.

GUMMOW J: And they have endless problems about it in the United States.

MR GRIFFITH: Your Honour, by the concept here we desire to concentrate on this issue of the electoral process as being in the heart of the concept and although that may be slippery on the issue of denotation of aspects of adult suffrage we submit, your Honour, the basic concept of equal weight for those who participate is one which is, we say, an essential part of the definition, so that, perhaps, one is not trying to catch the fish on the bicycle but merely identifying what the bicycle is before anyone gets in the rider’s seat, as it were.

In our submission, if there is electoral inequality this can enable a minority of people to determine who is to govern the Commonwealth or a State and to determine the policies by which they are governed against the wishes of the majority and by definition, we submit, that would mean that such government is not representative of the people it governs. Government under such a system cannot fall within the definition of government by the people.

As representative government necessarily implies that the elected representatives are accountable to the people it must follow, we submit, that electoral inequality can lead to a situation where a government cannot be voted out of office notwithstanding a loss of, certainly, majority support. When one looks back to the historical matters, what did happen about 1900, in our submission, the adoption by the framers of the Constitution of the principle of responsible government may be seen to be the major reason for the disinclination to incorporate in the Constitution comprehensive guarantees of individual rights.

The choice, we submit, was deliberate, based upon a faith in the democratic process to protect Australian citizens against unwarranted incursions upon the freedom which they enjoy. And, of course, your Honour the Chief Justice recently in Nationwide (1992) 177 CLR 1, at page 43 recited that well‑known passage of the Engineer’s Case, (1920) 28 CLR 129, at pages 151-152 which has been oft cited in the last week or so as we celebrate the 75th anniversary of that decision.

If I may take the Court briefly to volume 1 of the plaintiff’s material, divider 4, there is a short passage - this is the writing of Professor Zines extracted from 16 Sydney LR 166, a Judicially Created Bill of Rights, and on page 177 at line 15 Professor Zines says:

Looking at the matter from a broader political and social viewpoint, it seems to me that the usual reasons given for not having a Bill of Rights strengthen the argument in favour of inferring a judicially enforceable system of government arising from the provisions of the Constitution relating to elections.

And in support of that Professor Zines then refers to himself at an earlier time referring to the Commonwealth Lectures, which appear in the defendant’s material, volume 1, divider 1, but I will not take the Court to that because the quotation itself appears in line 23:

Assuming that the main argument against judicial review of legislation is that the democratic determination of policy issues was preferable to that of unelected and technically irresponsible judges, it was said that a Constitution should at least safeguard the democratic process.

And we submit that this is a particular reason to underpin this concept of equality of voting power as being of the essence, part of the definition of the issue of representative government, representative democracy, which is embraced by the Constitution itself. I will say something shortly on the matter of structural content of that, but in our submission, when one asks the question, “What is of the essence of this democracy which has been recognised by the Court?”, it must be the concept that once each voter is identified that voter is entitled, we submit, to pass the vote of substantially equal weight, and that is the submission we make in paragraph 18 of our submissions.

In the Commonwealth sphere, of course, one can call upon sections 8 and sections 30 as we do in paragraph 19, which provide expressly that an elector can vote only once. If it is unconstitutional for certain voters to have the right to vote twice, we submit there is no difference in substance between a law which provides that certain voters shall carry twice the weight of other voters than a law which establishes an electoral system providing, as it cannot provide under the Constitution, that some voters may have more than one vote. We refer in paragraph 20 that the concept of electoral quality also underlies section 24 of the House of Representative seats allocated shall be in proportion to their populations. We have already covered the matters in paragraphs 21 and 22 on the question of entrenched difference, both as to the Senate and as to the minimum representation in the House of Representatives.

So, dealing with matters which were raised during the course of yesterday’s submissions, may we make a comment on the gerrymander issue. That is a matter which we refer to in paragraph 45 of our submissions, the last paragraph at the bottom of page 19, paragraph 20. One issue might be the definition of “gerrymander”. We would submit that it is something along the lines of an intentional allocation to distort the electoral process.

BRENNAN CJ: Is a gerrymander something distinctly different from malapportionment?

MR GRIFFITH: It is the same thing, your Honour. I am sorry, your Honour, in American terms it can be different, but the basic definition of “gerrymander” is one, of course, of following the salamander outline to derive at a demographic distribution which is unbalanced; it is done for reasons of misallocation, distortion. So it is the absence of bona fides or fairness which, in our submission, characterises what might otherwise be a distribution process of electoral boundaries as being one which is distorted impermissibly to become a gerrymander.

We do refer to our submissions to the issue of having regard to community affinity and matters of that sort in drawing boundaries. That is a different process. But by definition, your Honour, “gerrymander” is the impermissible or the unfair, the inappropriate.

McHUGH J: What test would you use for determining though there was a gerrymander?

MR GRIFFITH: Really, I suppose, the definition one recognises when you see it, your Honour, the boundary that goes along the road; if it is something which obviously is a distortion. One aspect is recent laws, I think, in Oklahoma, which this year the United States Supreme Court struck down because they are an attempt to draw electoral boundaries to ensure that there would be at least four black electorates in a particular geographic area of the State by drawing the boundaries accordingly. That would come within ‑ ‑ ‑

McHUGH J: You can get very oddly shaped electorates without there being any suggestion they were gerrymandered.

MR GRIFFITH: Of course you could. Your Honour raised the issue of fairness with me yesterday. We denied that as the issue for determining this basic aspect of the essential definition of the required electoral system but, nonetheless, a concept of that sort could have work to play in deciding whether or not there has been a misallocation to distort for political purposes. That would be the line of inquiry.

Our submissions are directed not to the definition but if you have it, is that impermissible? Our first submission is that it would be, so we disagree with my learned friend, Mr Bennett, on this. We say that could be regarded as impermissible because it infringes the principle, one vote one value. You are distorting the value of a vote if you place it in an area for the purpose of producing, if we may call it, an unnatural demographic result over the area.

McHUGH J: One aspect that worries me about giving one vote one value the preferred place that you seek to give it, and Mr Bennett seeks to give it, is that surely effective representation is just as important in determining whether you have representative government or representative democracy. Therefore, why is it size, distance, communication matters of very considerable importance? In electorates in Sydney and Melbourne you can drive round them a hundred times in a single day. In Western Australia you might not be able to go round them in three months.

MR GRIFFITH: Your Honour, there are many answers to that. One is the one that Mr Bennett gave, that trees and acres do not vote.

DAWSON J: That is a very clever remark but it does not answer what his Honour was saying.

MR GRIFFITH: Your Honour, it was intended to step into answering it.

McHUGH J: But it does not. If people in Western Australia - take a federal electorate like Kalgoorlie, if because of distance somebody cannot be as well represented as somebody in Sydney, the whole concept of representative government or democracy is overthrown.

MR GRIFFITH: With respect, your Honour, that cannot be an answer to the proposition that the people of Australia are entitled to equal representation, otherwise one would cast Australia into geographic grids and have electorates irrespective of the population.

DAWSON J: But the point is they are entitled to representation first, and an effective representation cannot be achieved in a large electorate if there are too many people because it means that communication is difficult.

MR GRIFFITH: With respect, your Honour, nowadays communication is not all that difficult. One has the fax, one has the phone. How many of those in the courtroom today have spoken with their local member of Parliament in the last five years?

DAWSON J: Out in the backblocks of Western Australia the fax and the phone maybe do not count for so much.

MR GRIFFITH: Your Honour, one knows that there are special allocations under the Remuneration Tribunal allowances, particularly in that electorate, covering aeroplane allowances for the member of Parliament to be able to cover completely his electorate.

DAWSON J: But the point is there can be more than one view about these things.

MR GRIFFITH: Your Honour, although there may be a view of appreciation as to the difficulties in representation in that area, we make the point that there is a basic content of the principle of representative democracy which has been recognised in this Court which carries with it, we submit, the concept of equal value for those who are admitted to the electoral process. So this is a special and a primary factor. It does not negate the fact that there may be other factors taken into account in drawing the boundaries.

DAWSON J: That is just a matter of assertion on your part.

MR GRIFFITH: We do seek in our submissions to take it step by step from the recognition of the principle to say that this in essence is its defined content. We make the point, supporting it from various provisions of the Constitution, and I will take your Honours to other ‑ ‑ ‑

McHUGH J: But this argument for the Commonwealth has some problems, or may have for the Commonwealth in the future. As the Chief Justice suggested to you yesterday, if you wanted to enact some legislation to give effect to some international treaty that you have signed or political or human rights covenant, you are going to be caught by some overriding principle of one vote, one value so that you cannot give some minority group affirmative rights.

MR GRIFFITH: Your Honour, that might be so if it cuts across this basic principle that so far as the electors of Australia are concerned they are, once they admitted to the vote - and we say that is now universal suffrage and cannot be detracted from - entitled to cast their votes on the basis of one vote for each and one vote of substantially equal value. Our submission is that is the definition.

McHUGH J: What about the voters in the Territories? Is the Territorial Senators Case rightly decided or is there some problem about the electors there?

MR GRIFFITH: Your Honour, we have made the point, and sufficiently, we say, in our submissions and in our discussions yesterday, that they are constitutional provisions as part of federalism and this Court has recognised the right for there to be Northern Territory senators.

DAWSON J: Yes, but if there is an implication to be drawn from the Constitution of one vote, one value, it hardly sits well with the interpretation of this Court that you can have multiple votes for Territory senators and any number of them.

MR GRIFFITH: Your Honour, in our submission, the issue here is the question of what is the basic content of representative democracy as embraced within the structure of our Constitution and we say, certainly so far as the Commonwealth is concerned - and this is this part of our submissions - there is one thing that is clearly mandated and that is that there should be electoral equality subject only to those exceptions embraced specifically by the Constitution as part of the original federal compact. We say it is part of the definition and that is why it has this primacy over other aspects that may be taken into account over aspects of ‑ ‑ ‑

DAWSON J: Part of what definition? You say it is part of the definition.

MR GRIFFITH: Your Honour, it is part of what is the content of representative democracy. It is the concept that those who vote, in our submission, have votes of equal value.

DAWSON J: Then we did not have representative democracy at the time that the Constitution was enacted.

MR GRIFFITH: Your Honour, with respect, that is a submission going to the issue of what is the denotation of the requirement for adults for suffrage.

DAWSON J: The terms “connotation” and “denotation” are just no assistance in respect of that.

MR GRIFFITH: Can I deal with that when I refer again to Cheatle on the issue of what is the present requirement in our submission, accepting the position as it was in 1900, but we do say that now it is clear that the universal suffrage which has been established cannot be disestablished. It is constitutionally impermissible, in our submission, but the definition, if one is looking for electoral equality, is one as to what is the right of those who are admitted to the electoral process. In 1900 women were not admitted to the electoral process. There was a requirement in some States for a property qualification. There were limitations, but we submit, your Honour, for those who are admitted there is a requirement of equality and now we are at the position that the admission is defined by reference to universal suffrage, which cannot, we submit, be withdrawn, although it has been established by statute since 1900 to become universal suffrage.

I make one proposition about gerrymander, and that is we submit that a gerrymander, when seen, is impermissible because it would infringe the principle of one vote, one value. It would distort the value. Secondly, it might be regarded as infringing a different principle, namely, that there should not be an intentional misallocation to distort the electoral processes. So that a gerrymander could be regarded itself being consistent with principles of representative democracy. Either way, in our submission, a gerrymander is constitutionally impermissible.

BRENNAN CJ: Mr Solicitor, could I take you back to your argument based upon responsible government?

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: If, by looking at the Constitution perceiving the requirement of both representative and responsible government, one would come to the conclusion that there was a system of majoritarian democracy contemplated, so that there would be no Bill of Rights required. That seems to assume that the majoritarian democracy was not, itself, seen as a threat to minority rights against or in protection of which a Bill of Rights would be required.

MR GRIFFITH: Well, your Honour, that may be so.

BRENNAN CJ: I am just trying to test the strength of your argument based on the responsible government.

MR GRIFFITH: Yes. Your Honour, in our submission, it is, perhaps as on this point, stated in Engineer’s Case, your Honour, the touchstone which enabled those framing the Constitution to see no occasion to rely upon the Bill of Rights provisions to protect those people who, by the democratic process - and by that we say, your Honour, the concept that there should be equal participation and majority rule - that they had faith in those people. Of course, the sanction, your Honour, was that which is referred to in that same passage of the Engineer’s Case that your Honour referred to. That was how it was regarded and, in our submission, this is the essence of what was established.

So perhaps, stepping ahead a couple of points, your Honour, we would say that it would be quite inconsistent with that mandated constitutional structure to accept the result that your Honour in your judgment in Theophanous referred to in respect of the States, that there is a possibility that there could be a dictatorship in the State, an abrogation of Parliament. In our submission, your Honour - and we will come to that through part C of our submissions - that is just flatly inconsistent with the structure of the entire Constitution which applies, in this aspect, to the States as much as it does to the Commonwealth.

Of course, it would be impermissible in the Commonwealth because we have the very sections. Your Honour has referred to section 7 and 24 often enough and the other sections which make it quite clear that, in the Commonwealth sphere, that advance, if called an advance, is not possible. But, in our submission, sections 7 and 24 are merely illustrative of the wider principle of representative democracy as are sections 8 and 30 which are referred to in paragraph 19 dealing with the concept of one vote per elector.

McHUGH J: This proposition means then that the States cannot be a laboratory for experiments, that, for example, State Parliaments could not take the view that better that groups be represented in Parliament rather than individuals, or that professions or occupations be represented in Parliament. You would say that the Constitution is now frozen.

MR GRIFFITH: Not at all, your Honour. We would say that it could admit a process such as the New Zealand system which is coming into force at the next election, whereby in some aspect, one votes for someone on the party ticket without voting for an individual. That concept may be admitted so long as, nonetheless, the touchstone is one vote, one value. One can have electoral reform, electoral experiments. Now, if it comes to the issue of whether or not one can, in effect, abolish the electorate by demographic or geographic definition - well, certainly one can have a Statewide electorate, but have an interest-by-interest electorate, your Honour, all nurses, all doctors, et cetera, there may well be difficulties about that.

McHUGH J: I must say I find this a very difficult area. Sitting as a Judge of this Court, authority might require me, ultimately, to - did now accept that the States are bound by some principle of representative democracy but, personally, it is a view I could never accept.

MR GRIFFITH: I was going to submit that, if necessary, to some extent we would submit it would be a - perhaps if I could put this highly without giving offence - shocking concept to any Australian to contemplate that there is ample plenary power within a State for it to become a one-party dictatorship without contravening the basic structure of the Constitution. By that, I mean the Commonwealth Constitution in so far as it applies to the Commonwealth, and in as much as one comprehensively has regard to what it is in each of the State Constitutions.

McHUGH J: It might be shocking in a political sense and one would think that there would be no possible chance of it happening, but the question is, whether constitutionally it is open to a State to do it.

MR GRIFFITH: Our submission, your Honour - we refer back to these matter we have already touched upon - that that is something which the Constitution would not permit and we submit the Court has already indicated that it takes the view that there are basic structural matters here as well as textual ones that would inhibit that as even a possibility.

BRENNAN CJ: That might depend on whether the State Constitutions contain provisions similar to section 73(2)(c).

MR GRIFFITH: Yes, your Honour, that is our next point to work through section 106, and we intend to do that. If I can just make two other comments before I do leave part B and that is at page 13, paragraphs 26 to 31, we say what it is we say is the content of this implied principle and that takes up what we would intend to be our response to the matters such as those raised by Justice McHugh with me. In paragraph 27 we say it is not a static concept of substantive equality, and we accept the approach that there must be a margin of appreciation, absolute equality, that cannot be required.

We postulate that to be justified a law affecting or authorising departure must be reasonably capable of being seen as having an objective which is consistent with representative government and must not in operation infringe upon the implied constitutional principle which we have identified. That is not a very surprising test and we say that that does enable there to be an accepted margin of appreciation, though. As we say in paragraph 9, nonetheless, with the target of nearly as practical or equal number of electors in each electorate. In paragraph 30 we make the obvious point that perfect equality is impossible and we do admit in paragraph 31 that factors other than numbers may be taken into account, consistent with what we have expressed as the principle.

In paragraph 32 we refer to the main principles of the Commonwealth Electoral Act and we submit that that would be consistent with what we have proposed as the constitutional constraint; the target to be within plus or minus 2 per cent halfway into the next distribution, with requirements of interim distributions if this conformity emerges to a greater extent before then, and one would see that section 73(4)(b) does enable matters of other interest to be taken into account.

BRENNAN CJ: I take it that your argument acknowledges the susceptibility of the Commonwealth Electoral Act to judicial review?

MR GRIFFITH: Yes, it would, your Honour.

BRENNAN CJ: For conformity with sections 7 and 24?

MR GRIFFITH: Yes, your Honour, although judicial review in that area might be difficult.

BRENNAN CJ: It may be, but you accept it.

MR GRIFFITH: We must accept it, yes, your Honour, but the test postulated is one that the Commonwealth, at this point, your Honour, is saying that is what applies to it, so we cannot gainsay that that is the position.

BRENNAN CJ: The Commonwealth says that it has conformed to the requirement.

MR GRIFFITH: Yes, so in effect, your Honour, whatever we pour down as rain on the States, we give ourselves a bucket full first.

BRENNAN CJ: Yes.

MR GRIFFITH: Your Honour Justice Dawson made the point yesterday, of course, that if it were the Commonwealth Act under attack, it might be more difficult for the Commonwealth to make its submissions.

DAWSON J: No, you made that point, I did not.

MR GRIFFITH: I am sorry, your Honour. It is obvious enough, your Honour, perhaps I do not have to make it. It is just that I am so unused to arguing that anything is invalid that it does involve a somewhat different approach from that which I normally take in this Court.

Your Honours, may I now turn to the issue of part C, saying that this constitutional principle of representative government, which we say means no more in this aspect than the general principle of electoral equality, is not confined in the Commonwealth sphere. It extends, we say, to the States who, we submit, derive their legal existence from the Constitution and where there is a State Parliament which has two Houses, we say it extends to both Houses but we accept that there is not a requirement for a bicameral system.

If one does not have one, one can obtain one and if one does have one, one can constitutionally eliminate it without reaching what we say is the constitutional principle of electoral equality. This is, to some extent, an area of open texture but, in our submission, it is now well signposted as a constitutional path.

It is dealt with in our submissions, paragraphs 38 to 42, commencing on page 38 and also our additional submissions which are made in paragraphs 1 to 3 which I referred the Court to yesterday where we have further and particular citations on the section 106 point and the particular references to three articles which refer to the concept of the operation of section 106 which I do not intend to take the Court to in any detail, but, for example, under tab 5, the article by Thomson, “State Constitutional Law: The Quiet Revolution” in our additional references volume, the thin one, one has at page 314 of the extract from Western Australian Law Review, a statement under the heading “Some Basic Postulates” where Thomson says:

Secondly, state constitutions are visualised as emanating from the Australian Constitution. In particular, section 106 is treated as the foundation of state constitutional law although other provisions might bolster this view.

But he is talking about alternative approaches on finding the grundnorm and nature of the State Constitutions. These articles are not definitive, of course, but they are discussion of the issues.

Our first proposition on this aspect is that powers of the States may be restricted by implication from the Commonwealth Constitution and as to that may we refer the Court to McKain v Miller 174 CLR 1, in particular at page 36, where your Honours the present Chief Justice, Justice Dawson, Justice Toohey and Justice McHugh said, at about point 4, the last sentence of the first full paragraph:

Although it would be wrong to deny that an implication properly drawn from the text of the Constitution can limit the legislative power of a State as effectively as an express limitation such as section 92, we do not find in the Constitution sufficient indicia to raise such an implication.

So that we submit that that is a statement recognising that there may be structural implications.

DAWSON J: But that only means that the States cannot do anything which is inconsistent with the implication. In other words, the States cannot enact legislation which would deny the representative government which section 7 and 24 decree, but it does not mean that the implication in any other way binds the States.

MR GRIFFITH: Your Honour, we have already made the submission of what - the implication. We say that there is a requirement of an electoral quality, but the point here is to make as a matter of principle, we submit, that it does follow that the Court has admitted that States may be restricted by an implication from the Constitution itself.

DAWSON J: I do not understand that. The implication is not that there shall be one vote, one value for the States; the implication just does not go as far.

MR GRIFFITH: Your Honour, that is my first step; may I keep stepping and ‑ ‑ ‑

DAWSON J: No, no. Your first step is that the implication is one vote, one value in representative government, but the representative government we are talking about here is the Commonwealth’s representative government, not the States. Certainly the States cannot pass legislation which interferes with the Commonwealth’s representative government, but that is as far as it goes.

MR GRIFFITH: Your Honour, the point your Honour identifies must also make the proposition that representative government is required in the States.

DAWSON J: Then you are saying that sections 7 and 24 provide for the form of government which the States ‑ ‑ ‑

MR GRIFFITH: Not at all, your Honour. We do not rely on sections 7 and 24. We say that merely is a specific provision reflecting the inherent constitutional mandate.

DAWSON J: What is decreed by section 7 and 24 does not extend to the States; is that the point?

MR GRIFFITH: It does not extend by operation of section 7 and 24, your Honour. Sections 7 and 24 applies to the Commonwealth and only to the Commonwealth.

DAWSON J: So any implication which you draw from them applies to the Commonwealth and only the Commonwealth.

MR GRIFFITH: Your Honour, we are not drawing the implication, with respect, from sections 7 and 24 so far as the States being bound are concerned. All we refer to those sections is to, as it were, be confirmatory.

DAWSON J: How is a State bound if it is not via those sections?

MR GRIFFITH: Your Honour, we say it is bound because they are participants in a constitutional mechanism established by the Constitution whereby both the Commonwealth governments and each State government establish on the basis that they shall have a parliamentary democracy elected by those qualified to elect them, now on universal suffrage, where each vote has the same value.

DAWSON J: Where does the Constitution say the States are to have a parliamentary democracy?

MR GRIFFITH: Your Honour, may I continue my steps and then we say the whole that we refer to establishes it, but the first proposition at the moment, your Honour, is merely to say that there can be implications from the Commonwealth Constitution restrictive of the States and we just refer to that statement as saying those four members of the Court admitted that possibility. That is as far as we want to go in that ‑ ‑ ‑

DAWSON J: All I was saying they were talking about something else.

MR GRIFFITH: Of course they were, your Honour, but they were talking about an implication, a different one, which could bind the States as much as the Commonwealth. That is the only point we make, your Honour. We do not say it is the same one. Of course it is not. Our next proposition, your Honours, is to say the implication may be textual or structural. The textual basis in the Commonwealth Constitution of the implication of political equality is set out in paragraph 40 of our submissions. They appear on pages 18 and 19 of our submissions.

DAWSON J: May I take you back just for one moment to McKain v Miller. That demonstrates what I was saying, the passage that you referred to. It does not say that an implied limitation binds the States. What it said is it “can limit the legislative power of a State”, which means that the State cannot legislate inconsistently with it, but it does not go any further than that.

MR GRIFFITH: Your Honour, that is sufficient for our purpose to say a State cannot legislate, we submit, inconsistently with the requirement that there be an electoral system whereby each vote has substantially equal value.

DAWSON J: With the Commonwealth’s electoral system because that is what the Constitution provides for.

MR GRIFFITH: Your Honour, our submission is that by implication both structural and textual can be got at - coming up or coming down, one gets the same result applying for the States and having used that expression, may I hand to the Court a paper by a Judge Posner entitled “Legal Reasoning From the Top Down and From the Bottom Up: The Question of Unenumerated Constitutional Rights”.

McHUGH J: Have you got Professor Dworkin’s reply to that in the same volume?

MR GRIFFITH: No, but we could though, your Honour. I was not intending to take the Court to this. Some of it discusses the issue of contraceptive freedom, but the point we make, which one picks up from the first paragraph - so that we did not feel we had to go to Dworkin, your Honour, because it is not the full frontal debate, as it were - the point we want to make is that Judge Posner is making the point that one can find structural basis for these unexpressed rights, that is from the top down, or you can find textual basis, you work from the text up, and perhaps if you do both of those things you end up in the same place.

McHUGH J: Does he not make the point that the “top down” theorists start with some general theory out there and then they apply it to material; whereas the “bottoms up” theorists starts with the material and constructs a theory from the text and structure?

MR GRIFFITH: There might not be so much of starting up there but starting in the covering clauses and finding it near the front, as it were, before one gets to the power clauses.

BRENNAN CJ: Imagery is fine but we try to construe the Constitution as a whole. Do we need to go outside the usual methods of construing a Constitution?

MR GRIFFITH: Your Honour, here, in our submission, there is this necessary approach of taking a textual approach which I am now considering and that is really particularly to deal with the point raised by Justice Dawson, to say there are things in the Constitution which do affect, by the terms, the States in this context, that it is not all just about the Commonwealth. That is our first submission; the first way of putting it. The second way we put it is what we refer to the structural implication and that we intend particularly to refer to the fact that our submission is, at least after the Australia Acts, the source of legitimacy of the State Constitution is to be found entirely and completely within the Constitution of the Commonwealth.

BRENNAN CJ: Let us take it step by step. In relation to the implication that you are seeking to draw from the Constitution which binds the States, the only relevant implication is not whether there be a Parliament in the States but the manner in which that Parliament should be elected.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: What can you point to to indicate that?

MR GRIFFITH: May we then go to paragraph 40, pages 18 and 19? Your Honour, looking at these propositions, our basic approach here is to say that the two levels of representative government, that of the Commonwealth and that of each of the States, is, we submit, related in the same way as political speech as was stated by members of this Court. If I could take the Court briefly to 68 ALJR 717? This was a passage I think briefly referred to by my learned friend, Mr Bennett, but not read. We say that Theophanous was determined by this Court on the basis that there was an interrelationship; so that the aspect of political freedom of communication or freedom of political communication identified by the Court was one which must necessarily be universal throughout the entire body politics of the Commonwealth. There, three of your Honours said:

The concept of “political discussion” is not limited to matters relating to the government of the Commonwealth, using that expression in its broadest sense so as to include the public affairs of the Commonwealth.

Capital Television is referred to, where four of your Honours rejected that limitation.

The interrelationship of Commonwealth and State powers and the interaction between the various tiers of government in Australia, the constant flow of political information, ideas and debate across the tiers of government and the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament and to its workings make unrealistic any attempt to confine the freedom to matters relating to the Commonwealth government.

We say that is a recognition by the Court, in our submission, of the interrelationship of this principle of representative government, representative democracy, which has been recognised, our submission being that the concept of electoral equality being at the heart of that concept. Could I also refer your Honours to ‑ ‑ ‑

BRENNAN CJ: Is this where you draw the analogy? That is the passage from which you draw the analogy?

MR GRIFFITH: No, your Honour, that is to show that there is interrelationship. When one looks at the requirement of political democracy, we submit that is as a similar interrelationship in this aspect of electoral equality.

BRENNAN CJ: How is it similar?

MR GRIFFITH: Can I take your Honours to the various parts of the Constitution we refer to in paragraph 40 which we say indicate that it is not a case that the Constitution, after the covering clauses, and apart from section 106 does not deal with the States. In our submission, the Constitution throughout embraces concepts relevant to the States and their electoral systems as well as, of course, providing the exhaustive definition including sections 7 and 24 in respect of the Commonwealth electoral process. So we refer firstly to the fact of substantial identity between the people of the Commonwealth and the people of the States. We say they are both the same source of the electors. We refer to the similar role of these people through their representatives of determining the distribution of powers and functions between the Commonwealth and the States in its constitutional compact itself in regulating the exercise or non‑exercise of those powers.

We refer to the specific recognition given in the Constitution to the role of State Parliaments. I will not take the Court to each of those sections but we identify them. We refer to the function of the States in determining the composition of the Senate. The Court has already been referred to section 15. We mention tab 1 of our materials has the unamended section 15 providing for casual vacancies. In our submission, that is a particular example.

McHUGH J: What is your answer to Sir Owen Dixon’s comment in Clayton v Heffron that section 15 might assume that both Houses of Parliament are going to continue, but even that was a very weak argument. It certainly provided no foundation for the fact that there were going to be two Houses of Parliament continuing on.

MR GRIFFITH: We have already made one answer to that, your Honour. We say that this is not a weak assumption; it is part of the essential definition of the Federation comprising the Commonwealth and the States. But the point we wanted to make about section 15 is we say that process in requiring a joint sitting for casual vacancies itself embraces the concept, we submit, of the constitutional assumption that there will be equality of representation by operation of the State electoral process - one vote, one value - reflecting what we say is the mandated requirement which exists otherwise in respect of the provisions applying to the Commonwealth, that persons elected to the Commonwealth Parliament will come from provisions which reflect the requirements of sections 7 and 24 which we say reflect the essential constitutional requirement of one vote, one value, electoral equality.

Here we say section 15, by permitting this method of casual vacancy to be filled, is acting on the basis that in the States it will be the same, that the State Parliaments when meeting together for this purpose will reflect the same genesis of election as is required for the members of the Commonwealth Parliament under the provisions applying for their direct election.

So that, your Honour, it does mean that in each State, there must be one vote, one value in respect of the Senate elections. It is referred to as confirming what we say not merely permeates the Constitution, but it is part of its essential structure, and that takes us back to part B, of course, on the basic issue of the requirement so far as it applies to the Commonwealth, but it is one where it is interrelated. One has various sections where the States are brought into more than just section 106 of the Constitution. One has, of course, the transitional provisions, 7, 10, 24, 25, 29, 30, 31, 41, which provide, we say, the link of saneness.

Our submission is that they are all intended to operate under the same umbrella. We refer to these provisions, in our submission, as providing what your Honour the Chief Justice referred to in Nationwide News 177 CLR 43 a textural foothold. It is necessary, your Honour, to obtain a textural foothold on this basis of the textural approach. We say your Honour and Justice Gaudron said also at page 216:

The third and final matter which requires that the freedom of political discourse should extend to the affairs of the States is that the Constitution expressly recognizes their Constitutions, their Parliaments and their electoral processes and, in so doing, necessarily recognizes their democratic nature.

And in footnote 20, your Honour has particular citations to sections recognising the State electoral processes. So our submission is that if it is regarded as essential to have a textural basis, it is there confirmed by these provisions, but having regard to the basic characteristic of the required principle of representative government, representative democracy which, we say, has been recognised in the Constitution.

So that to use a section 15 example, within each State, all votes for the Senate are of equal value. When there is a vacancy, both Houses of Parliament must meet together, and we say this mechanism for filling vacancies reflects the same principle as political equality as, say, for example, a section 59 state-wide electorate would. Of course, the Senate is a single State-wide electorate, although it is not required by the Constitution to be that. So that is the first basis we put. There is a textural basis we submit.

Now, dealing with the second basis, the structural implication which, we submit, is there, we do not submit it is the structural implication arising from outside on top and on high, but we say it is a structural implication which arises from the fact that, certainly today - whether it is before 1986 or not - the source of legitimacy of State Constitutions is to be found, we say, entirely in the adoption by the people of Australia of the Constitution.

We refer the Court to paragraphs 14 to 17 of our submissions, but the point we make here is that the only occasion when the people of any State have ever adopted the Constitution of that State is when they voted in the referenda that adopted the Commonwealth Constitution, including section 106. That is the only occasion when the people of the States had a democratic participation in the adoption of their Constitutions. Now, it is admitted that for many years the Commonwealth Constitution had dual sources of its legitimacy, an Act of the people and the legislation of an imperial Parliament although, I must say, it is still difficult to go back, for example, and read covering clause 8 which is able to refer to the fact that:

After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self‑governing colony for the purposes of that Act.

Now, we referred yesterday to Sir Garfield Barwick having referred to the aptness of the description of Australia continuing as a single colony from 1 January 1901. That may have been so at one time, but now it most certainly is not the case. One might resist the proposition even then it was apt. It might represent the absence of appreciation of the significance of the adoption of the Australian Constitution and the creation of the Commonwealth itself.

But the position that the Commonwealth Constitution had this dual source, of course, was the same for State Constitutions. It was after all the Constitution which created the States, which transmuted them from being colonies, admittedly continuing their Constitutions in force, but for the first time as States, as members of the Federation of the Commonwealth of Australia. And it is our submission that now, whether it is since the Statute of Westminster, whether it is since the Australia Acts or at some other time, the imperial legislation should be discarded as a source, as any source, of legal legitimacy, either for the Commonwealth Constitution or for any of the State Constitutions.

DAWSON J: It cannot as a matter of history say that; you mean, just ignore history?

MR GRIFFITH: Your Honour, that is precisely why we say it is a matter of history, we have moved on.

DAWSON J: Yes, but as a matter of history, it explains the origins of the Constitution.

MR GRIFFITH: Your Honour, our submission is, where are we now, and we submit, your Honour, where we are now is that we say that the Australian people, as a whole, have authorised and empowered two sets of governments by one act, the adoption of the Constitution, and we say, your Honour ‑ ‑ ‑

DAWSON J: Where was the act of authorisation?

MR GRIFFITH: By the people?

DAWSON J: Yes.

MR GRIFFITH: The referendum, your Honour.

DAWSON J: In relation to section ‑ ‑ ‑

MR GRIFFITH: The whole Constitution.

DAWSON J: But that preceded that, as the preamble demonstrates; that was a past fact at the time at which the Constitution became law.

MR GRIFFITH: Your Honour, it is the act of the people that is referred to in the first phrase of the Constitution.

DAWSON J: True, but from a legal point of view it was the passage of the Act through the United Kingdom Parliament which gave effect to the Constitution. I mean, one can fanaticise about these things, but it just is not like the history, for instance, of the United States Constitution. We could not begin our Constitution, and do not begin it, with the words “We the people”.

MR GRIFFITH: Your Honour, we certainly begin with “the people” though.

DAWSON J: Yes, describing an historical event which occurred.

MR GRIFFITH: Could I take your Honours to tab 2 of our additional references. That is an extract from Quick v Garran, in particular at pages 927 to 928, and this of course is contemporary writing, but at page 927, and accepting of course that Garran did not have the full knowledge of the developments which have now occurred, he says in the last paragraph on that page:

The primary and fundamental meaning of “The Commonwealth” is the united political community composed of the people and the antecedent colonies, now converted into States. That political community has been established by the Imperial Parliament, and endowed with the powers of self-government, by virtue of which the community may be described, for the purpose of this analysis, as possessing a kind of political sovereignty; not absolute and independent sovereignty, for that belongs to the British Parliament, but a derivative, delegated, or quasi-sovereignty. This quasi-sovereignty is conveyed to the new society by the Imperial Act, and through the Constitution in that Act. The Constitution partitions or distributes the powers pertaining to this quasi-sovereignty in the following manner -

And he refers to:

One bundle or set of the totality of quasi-sovereign powers is expressly and definitely assigned to certain governing organs called the Federal Parliament, the Federal Executive, and the Federal Judiciary, accompanied by limitations and prohibitions, determining the methods or principles according to which those powers are to be used. The balance of the quasi-sovereign powers are reserved to certain autonomous and governing groups, formerly called colonies, now called States; those powers being such as are defined in the Constitutions of the States, granted to them by the Imperial Parliament before the union. By the Federal Constitution the State Constitutions were confirmed and continued in existence, subject to the grants of power made by the Constitution to the Federal organs of government. In addition to these assignments of power among the two sets of governing agencies, the Constitution contains a section enabling the people of the united community, in the exercise of their quasi-sovereign power, to amend the supreme instrument of government itself. This power of amendment enables the people, if necessary, to redistribute the powers granted and apportioned by the Constitution, either by taking from the State Governments and giving to the Federal Government, or by taking from the Federal Government and giving to the State Governments.

And then he says:

The subjoined conspectus may be used to illustrate the relation of the State Governments to the Federal Government, and the joint relation of both to the amending power, to the Constitution, and to the Commonwealth:

And our submission is, if one takes out the italicised “quasi”, this was at the time, and remains, an accurate chart of the essential constitutional structure established by the Constitution in 1901. In other words, we say that there is the one limb under the Federal Constitution of the Federal Government with the requirement for the Parliament, executive and judiciary and we say under the other limb, coterminous with that, a reflective structure within the aspects of matters reserved to the States of State Governments comprising Parliaments, executives, State judiciaries, with the mode of amendment able to effect that. And, of course, there are two modes of amendment. One that, under section 51(xxxviii) as was used in the case of the Australia Acts, the other mode, section 128, and Garren goes on:

From these observations it appears that the Imperial Parliament has vested, in the united and indivisible people of the Commonwealth, some of the highest attributes of sovereignty, limited only by its own paramount supremacy:

Our submission is that that “own paramount supremacy” has now fallen away. It has ended, it is over. So, that leaves, within the “united and indivisible people of the Commonwealth”, those highest attributes of sovereignty, not so limited.

DAWSON J: We have got to the point where you are talking about sovereignty of the people now. What does it mean?

MR GRIFFITH: Your Honour, it means, in our submission, that the source of the State Constitutions is now to be regarded as entirely arising under the Constitution.

DAWSON J: You say that, but what does that mean?

MR GRIFFITH: Your Honour, that means, in our submission, your Honour, that when one looks at the position of the States in the States’ Constitutions, one has a position where the ultimate source of legal legitimacy is the Constitution, and if there are structural or if there are textual principles which apply to those structures so created, providing, for example, that there should be representative democracy and those structures include the concept, as we have submitted, of electoral equality, then we submit, your Honour, that through the mechanism of section 106 in the Constitution itself, the States are bound.

DAWSON J: I just simply do not understand that, Mr Solicitor.

MR GRIFFITH: Your Honour, that is somewhat worse than not accepting it.

McHUGH J: Does this mean, Mr Solicitor, that the sovereignty of the States resides not in the people of the States but in the nation as a whole?

MR GRIFFITH: Of course, your Honour, the nation as a whole could amend the Constitution of the States.

BRENNAN CJ: But this really indicates the dubiousness of this whole discussion, does it not? You do not deny the power of a State Parliament consistent with its Constitution to change its Constitution Act, do you?

MR GRIFFITH: No, your Honour.

BRENNAN CJ: So that the power of amendment of State Constitutions resides according to its distribution under their respective Acts.

MR GRIFFITH: Your Honour, it arises under the last words of section 106.

BRENNAN CJ: Under the last words of 106 which then, if you wish to regard it as the source of power, acknowledges the existence of the source of power in the State Parliaments and their Constitutions have changed since 1901. Even though you say section 106 has been the source of them, it is like the woodsman’s axe; six new heads and seven new handles. It might have been changed enormously in that time without any reference to section 128.

MR GRIFFITH: Your Honour, the Australia Acts did amend State Constitutions by reason of the reference of powers.

BRENNAN CJ: Be it so.

MR GRIFFITH: That is exactly what they did.

BRENNAN CJ: Has that taken away anything from the State Parliaments?

MR GRIFFITH: It took something away. It took away provisions that were already there that it happened the States wanted to get rid of, your Honour, but it did take something from their Constitutions.

BRENNAN CJ: It did not remove their power of amending their own Constitutions.

MR GRIFFITH: No, your Honour, but that does not mean that there is not a power within the Federal Constitution to amend the Constitutions of the States. That process may be used either through placitum (xxxviii) or through section 128.

DAWSON J: There are two views about that.

BRENNAN CJ: We come back to the question of whether or not there is anything in the federal Constitution which precludes the exercise by the States of their respective powers to amend their own Constitutions.

MR GRIFFITH: We say there is this limitation, both textual and structural.

BRENNAN CJ: Yes, you say there is the limitation.

MR GRIFFITH: Based on the principle of representative democracy which this Court has recognised as applying, we say, universally intermingled, or however it is expressed, between the Commonwealth and the States in the spheres of exercise of power. And we say part of this defined “it”, whatever it is, is the concept of electoral equality. They are the steps which we make. They are our submissions.

GUMMOW J: Do you say, Mr Solicitor, that the reference to the State courts in section 73 and the matters you referred to in referring us to that chart of Sir Robert Garran involved some separation of powers is some way entrenched in these State Constitutions.

MR GRIFFITH: Which reference in section 73 is your Honour referring to?

GUMMOW J: Well, to State supreme courts. Do you say that through the Constitution there is assumed a continued separation of powers in the States?

MR GRIFFITH: One must predict this is the likely step in constitutional argument. It is a matter of principle and, one could submit, analogous to the matter of basic principle which we say, in representative democracy, it would be very surprising if there were not implications of a Chapter III nature, if I may describe them as that, in the States. In fact, on one view it would be surprising, if I may say it again, shocking, if that were thought, if one abolish State courts.

McHUGH J: So the New South Wales Parliament cannot pass an Act of Attainder?

MR GRIFFITH: That is a matter for another day. I am not too sure that any Parliament can, your Honour. That is a matter in the Court list, on one view, your Honour. These arguments are available but that is hardly an argument for another day. It seems to be on the eve of that already. Our argument does embrace that concept that there are essential matters. Political democracy is one. Representative democracy is one, which we say includes this aspect of electoral equality.

DAWSON J: This occurred only on the passage of the Australia Acts, so that prior to that time when the people were not the only source of legitimacy of the Constitution the requirement which you now say is there was not there.

MR GRIFFITH: Your Honour, it might have occurred a bit earlier. It is a question of ambulatory independence issue.

DAWSON J: Whatever date you say the Imperial Parliament slipped away, then there was ‑ ‑ ‑

MR GRIFFITH: Yes. One does not have to identify exactly when, your Honour, but it has happened.

DAWSON J: Then that was when this sea change occurred.

MR GRIFFITH: Perhaps it was a smaller slowly ebbing tide, your Honour, but if it had not already gone out, 86 we say would have done it.

DAWSON J: Yes, I understand.

MR GRIFFITH: Your Honour, these things have not been worked through. It might have been that this aspect of the essential requirements of representative democracy were there to be articulated in 1900, but we all know we could not, for example in McKinlay’s Case, put those propositions in Darlinghurst, the Court would not have entertained them at that time.

DAWSON J: Perhaps they are still right.

McHUGH J: Yes, some of us have difficulty entertaining them now, Mr Solicitor.

MR GRIFFITH: If the Court pleases, but they may be put, which is progress, and what is more, your Honour, they may be put based on the text of decisions of this Court, which gives them, I will not say a veneer of authority, but substantial authority as giving a basic constitutional principle to root them to. Absent that, when one talks of acts of attainder, your Honour in Gallaghar’s Case in 1981 there was an attempt to say that the act for abolition of the Star Chamber made royal commissions inquiring into whether a person committed a crime unlawful. Now, that was an argument which only was successful with one of the Court at that time, whether McGuinness’ Case should be overruled. Your Honour, it is not so difficult now to see that that same argument would have a constitutional structure based on decisions of this Court since which could give it a veracity that it did not have on the day then. This is part of constitutional development.

Your Honours, we say that Garran got his chart right. This is the structure. We say that the Constitutions of the States now have their sole source of authority under the Commonwealth Constitution. It is section 106 which would deal with, for example, the issue of a State Parliament repealing a manner and form provision which required a referendum, for example, section 73(2)(g) of the Constitution Act and this may, of course, be affected now not by any term of the Colonial Laws Validity Act but by the operation of section 6 of the Australia Acts. So that once more, in our submission, one comes back to the ultimate source of authority, section 106. Of course, I mentioned the Australia Acts were supported by section 51(xxxviii). Professor Zines, we note, has expressed the view that the ‑ ‑ ‑

DAWSON J: One Australia Act was supported by section 51(xxxviii).

MR GRIFFITH: One of the Australia Acts, your Honours, yes.

DAWSON J: Not the other.

MR GRIFFITH: Yes, although, of course, they were each requested by the acts of request by the States, but, your Honours, I have already sought to evade proposing to the Court it is necessary to decide whether the United Kingdom Act did anything or was required to do anything additional to the Australia Act, the onshore Act, and I sustain that submission.

Professor Zines has expressed the view that the United Kingdom Australia Act must be of some effect because of section 15, which appears in identical terms in that Act and also in the Australian Act, but he bases this on the proposition that the Commonwealth Parliament could not bind its successors and, accordingly, the binding force rests on the authority of the British Parliament, but we submit that this is not so, that under placidum (xxxviii) the Commonwealth acquired authority to pass the Australia Acts which included section 15 so the binding force then becomes, in our submission, by virtue of the Australian Australia Act the same as any other provision of the Constitution. There is no doubt that the Australia Acts did effect a change to the Australian Constitution using the placidum (xxxviii) mechanism.

Like most things that happened in March 1986, the people of Australia did not realise that there was such significant constitutional alterations afoot, but they were.

The significance of our conclusion that the State Constitutions find their present authority exclusively from the Constitution - and we say this must be the case at least from 1986 - is that it is inherent in the concept of the people as the ultimate source of legitimacy that all persons are politically equal. This, we say, applies to both the governments on the chart of Garran, Commonwealth and each of the State Governments, both we say, each created by the people through the Commonwealth Constitution. To use the expression of your Honour the Chief Justice in Nationwide News 177 CLR at the foot of page 48, we say political equality is a legal incident which is essential to the effective maintenance of representative democracy as a form of government. So, it is a legal incident essential to the effective maintenance. If it is not there you cannot maintain it. We say it is a mandated constitutional requirement for the Commonwealth and for the States.

In paragraph 35 of our additional submissions we refer to Cheatle and we refer to Cheatle again on this aspect of having regard to what is the position in 1900. Our submission on this principle - there is an analogy from how the Court has regarded section 80.

GUMMOW J: Cheatle depends on the extraction of some platonic essence, I suppose, from the concept of jury trial, does it not? The question is: what is the platonic essence in this notion of representative government?

MR GRIFFITH: Platonic essence sounds rather weak, your Honour. We would, perhaps say the essence is ‑ ‑ ‑

GUMMOW J: It is a perfectly respectable method of reasoning surely.

MR GRIFFITH: ‑ ‑ ‑a bit stronger than that. Yes. Your Honours, can we paraphrase what is said in Cheatle 177 CLR 561. If your Honours could look at the text of Cheatle at 560, 561, and if I could work in what we say would be a phrase ‑ ‑ ‑

DAWSON J: Before you do, because Cheatle may be just wrong in this respect. It demonstrates, perhaps, the dangers of having regard to political correctness in constitutional interpretation. When one looks at it, to say that according to contemporary values, what was trial by jury in 1901 is no longer trial by jury, and when one examines that proposition it does appear suspect. And it is obiter.

MR GRIFFITH: Yes, there is always a possibility that section 80 has to be revisited again and again. The decision of the Court that meant informed waiver of jury is not to be permitted by majority is perhaps another issue.

DAWSON J: This case does demonstrate why it may be wrong, because it in fact perhaps what we were saying there in the spirit of political correctness was really giving voice to current political views. This case demonstrates that because what are you trying to inject into the Constitution is current political conceptions of something.

MR GRIFFITH: Yes, although it might be a bit like what they call a ratchet escalation clause on a lease: the ring can go up and never down, your Honour. We would say on this universal suffrage issue you can always improve the suffrage but, now you have got to universal suffrage, you are not allowed to detract from it.

DAWSON J: One thing is clear, and I do not understand you to be contesting it, that is that the Constitution has the meaning which it had in 1901.

MR GRIFFITH: I understand what your Honour means by that, but in the context ‑ ‑ ‑

DAWSON J: And of course one knows about discovering new denotations, but the fact is that it does have the meaning it had in 1901 and, that being so, it is difficult then to justify what is said on pages 560 and 561 of Cheatle.

MR GRIFFITH: Your Honour, I do not want to get into difficulties of defining a connotation which we say was there in 1900 which has the removal denotation. But as to your Honour’s first remark, it is not all that often that one can cite a unanimous decision of this Court, so if for the moment I could take that as my text to make the point ‑ ‑ ‑

BRENNAN CJ: Nor should you assume that it would be unanimously thought that there was political correctness underlying it.

MR GRIFFITH: Your Honour, I make no assumptions except the words; I only want the words. They are not all that old and six of your Honours are still here. But the point is that in the last paragraph on page 560 this question of what has happened since 1900 is dealt with:

Neither the exclusion of females nor the existence of some property qualification -

and if we added there “nor the existence of unequal electorates” -

was an essential feature -

and we put “of State elections” -

in 1900. The relevant essential feature or requirement of the institution was, and is, that -

we say “Parliament” -

be a body of persons representative of the wider community.....The exclusion of women and unpropertied persons -

“or the existence of unequal electorates” -

was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property.

We say “or unequally distributed”.

It would, however, be absurd to suggest that a requirement that -

“a Parliament” -

be truly representative requires a continuation of any such exclusion -

or we say “continuation of the inequality” -

in the more enlightened climate of 1993. To the contrary, in contemporary Australia, the exclusion of females and unpropertied persons -

and we say “or the existence of these inequalities” -

would itself be inconsistent with such a requirement.

DAWSON J: One could agree with that. Perhaps I should not have used the phrase “political correctness”, but what I meant to say was that these are desirable characteristics according to contemporary values. No one would suggest that the exclusion of women from juries or as voters is acceptable for one minute in our society today, but it was previously. Therefore, the concept of representative government was capable of excluding them at one time and including them at another, but that depends on one’s own value judgment. Nowadays it is a common value judgment that what was acceptable then is not acceptable now, but it remains a value judgment.

MR GRIFFITH: Your Honour would imply in that that it can be a two‑way street. We say that is a one‑way street. The value judgment is now made and we would say that one is set is concrete.

DAWSON J: Why could you not revert to saying, and I mean theoretically, that a different system ‑ ‑ ‑

MR GRIFFITH: Your Honour, we could start at the level of political correctness, but we say that it is a basic principle of equality that women are equal in this area, full stop. So that we say there is no constitutional power to exclude women from juries or women from the vote.

DAWSON J: How do you get to that point? That is the important thing.

MR GRIFFITH: Your Honour, we say it is inherent in the Constitution in the structural way that we have put, your Honour, and the textural way that we have put but, your Honour, we say we do not need authority of this Court to say that women could not now be validly disenfranchised either from a jury or from the electorate.

DAWSON J: It is a matter of politics, that is absolutely clear but whether, as a matter of constitutional theory it is clear, is another thing.

MR GRIFFITH: Your Honour, I do not want to call upon fundamental human values of sources outside the Commonwealth, your Honour, but we say that we are talking here about basic issues, and we say as basic as there is women in juries, women in politics issue is, all the people win. Once admitted - and now we have got to the point of universal suffrage - are equal when they are in. That is our point. Our submission is it is constitutionally impermissible for them to be now made less equal, or not to be constitutionally entitled to be equal. That is the heart of our proposition, and we say it applies to the Commonwealth and it applies to the States for the reason that we have put.

GAUDRON J: I take it you do accept the minority decisions in Leeth.

MR GRIFFITH: What I was going to say about Leeth, your Honour, is that your Honour was entirely right to say, “Then I can put Leeth on one side”, and your Honour physically did, and we do not see that my learned friend, Mr Bennett, invited your Honours to do anything else, but our point on Leeth is that if the implication of ‑ ‑ ‑

GAUDRON J: So far as you say it would now be unconstitutional to take those things away, to treat people as less than equal.

MR GRIFFITH: Your Honour, what we say is that if one cannot get this principle of electoral equality, which we submit from the principle of a representative democracy, which has been recognised by this Court at, say, the direct way, we say the principle cannot be derived indirectly from equality under the law. We are not talking about women here. We are talking about one vote, one value.

GAUDRON J: And women on juries.

MR GRIFFITH: Your Honour, that is already established. Your Honour, we say that the plaintiff is not making this a Leeth case and neither are we, if we could leave it like that, but we are happy to make submissions on Leeth for an hour, but we do not feel the Court would be assisted by it because we feel if we have not got up on our principal method, Leeth will not do it for us. We do not intend to do it.

Perhaps it is dangerous to indicate sort of what someone has said about constitutions, but Professor Paul Freund once said, so Mr Spigelman tells me, “We must not construe the Constitution as a last will and testament lest it become one”, and we say, well here that is not the process.

On this question of the Cheatle approach, we say that this is consistent with what was said by Justice McTiernan and Jacobs in McKinlay 135 CLR pages 36 and 37, where they refer to the content of the expression “directly chosen by the people” in section 24 as in part depending upon the common understanding of the time. Now that would embrace your Honour Justice Dawson’s expression of it.

GUMMOW J: Yes, but the example they then give is very interesting, “universal adult suffrage”, and there is just no debate about that, in one way, because that is provided by legislation in all relevant legislatures. It is easy to say that is a common understanding.

MR GRIFFITH: Yes, well, I suppose it was easy, your Honour, but their Honours said it.

GUMMOW J: There is a big debate about what we are talking about here, you see, that is the problem.

MR GRIFFITH: Your Honour, we sought to demonstrate that the concept of one vote, one value, only voting once being a requirement that is essentially there, means that your vote does not have twice the weight; that is the basic proposition, is as easy, we would submit. We say it is a self‑evident content of the expression “representative democracy” that the people who are admitted to the franchise, which is now universal but even if it were not, have votes of equal value; same number, they can have more than one, but everyone has more than one perhaps in the States, but certainly equal value, and we say that is essential. So, for those reasons, we submit that the principle which, of course, is more than spelt out, sections such as 7 and 24 perhaps do it for itself for the Commonwealth, we say represent a binding constitutional obligation in each of the States to the same extent.

Now, we were not intending to make submissions on the issue of consequence of invalidity, because we were here to argue principle, but it might assist the Court if we make some observations following the exchanges yesterday. My learned friend Mr Bennett referred to what various of the judges in McKinlay postulated as consequences of contravention of the requirement of section 24, in particular Justice Gibbs at page 53, Justice Stephen at page 60 agreeing with Justice Gibbs, and Justice Mason at page 63 agreeing with Justice Gibbs, but the underlying principle here seems to be one of necessity, that if there is a relevant Constitution prohibition which operates, it is necessary to deal with the situation which would arise, and a similar approach is, I suppose, to that of directory rather than mandatory construction, the provisions dealing with procedures of a legislature, and on that we refer to Clayton v Heffron 105 CLR 214, particularly pages 247 and 248. In Victoria and The Commonwealth v Connor (1975) 134 CLR 81.

BRENNAN CJ: I am not sure that I understand the reference to mandatory and directly?

MR GRIFFITH: Your Honour, a similar approach that one has to make the system work, as it were; that you cannot, we submit your Honour, once one determines that there is a problem about invalidity, breach of a constitutional requirement in regards to a fundamental matter such as the electoral process, we say the Court just cannot make a declaration in the air and get to a point of creating a constitutional crisis, empasse, black hole or whatever. It is necessary for the Court to participate in the consequences of taking that view.

BRENNAN CJ: Why do you resile from the situation that a court should itself ordain a scheme.

MR GRIFFITH: I do not, your Honour, I was working to it.

BRENNAN CJ: I see.

MR GRIFFITH: Your Honour, we do note that this is a case stated so the Court is only asked questions by the Judge who stated the case so that - or subject to the usual discipline ‑ ‑ ‑

GUMMOW J: Yes, but any reasonable equity lawyer knows it is a mistake to consider right divorced of remedy.

MR GRIFFITH: Of course it is, your Honour, but there is at least a link point ‑ ‑ ‑

GUMMOW J: You are not seeking to entice us to take the first step without looking at the second?

MR GRIFFITH: No, your Honour, but what I say is that a first step does not necessarily translate instanter into the order of the Court in the matter, because there is further consideration to be required on the matter coming back to the Judge who stated the question. There is relief claimed in the writ, paragraph 42 of the statement of claim, pages 18 or 19 of the case book and the case stated with an amended extra three questions in it, and the Court is dealing with the three questions.

If we assume that question i and question ii are each answered, “yes”, question iii seems to deal with consequences of that. That is what it is directed to. The Court does not have to answer all that might be implicit in question iii, in fact, I suppose, it does not have to answer all the questions. It can give a judgment and say, “And we will bring on for further hearing the consequences of us taking the view that we take to”, but looking at the possibility of consequences of invalidity, we say it is established, and we refer to McKinlay, that past elections would not be invalidated retrospectively, the doctrine of necessity as to that.

For future elections, the basic consequence of invalidity would seem to be that a future election under the current system would then be regarded as invalid, so that one would require new electoral legislation before the next election which, I gather in, say, this case Western Australia, is the year after next.

If it is the case that the Western Australian Constitution is found by consequence of reasoning of this Court to require a new electoral system and if it is the case that the Western Australian Constitution requires an election by a certain date, which it must, and it is not possible to put into place a new system before the new election, so that is looking at possibilities the Court do not know the answer to those queries are, if that were the result that there must be a new system, there must be an election, you cannot put the system in before the election, there are three logical possibilities.

The doctrine of necessity, we must have elections one could say, might require the election to be held under the old system, notwithstanding invalidity, but possibly could extend to requiring there be an abbreviated period before the next election as soon as the new system came into place. That is one way that the problem could be dealt with. Another way which would seem to be extraordinarily radical might be that a doctrine of necessity may require the election to be postponed, notwithstanding the constitutional requirement for an election by a sooner date. That would seem to be an extreme exercise of the Court’s supervision, but it is a possibility.

The third possibility is that by default it may be necessary for the whole State to vote as a single electorate. The sort of thing that section 29 might require in the Commonwealth sphere. Now, as to what is the correct solution, really, that must be a matter for the Court to determine. If there is a principle here our submission is that principle must be vindicated whatever should be the short-term difficulties because the Western Australian election may be required to be held before a complete new electoral law, new distribution, could occur. The principle must be supreme to be vindicated.

When that is vindicated, in our submission, there is ample flexibility in the doctrines of necessity which must, if they are ever to operate, operate in the situation of insuring that the electoral process can proceed, albeit on an abridged or somewhat different basis from that which was provided for in the constitutionally condemned electoral system. We would submit to the Court that the Court has adequate powers to act step by step to deal with that situation of necessity as is appropriate even to the extent of supervising a step-by-step process: to say, “Well, yes, if a proposal comes that there be a Statewide single electorate that would comply with requirement”; if there is a process whereby the Court’s orders are expressed in a way that do not declare effectively invalid the existing system on the basis that the election will go ahead but that then within a limited time there will be a substitute system legislated which does embrace correct principle and that then a reasonable time after that there will be an election. The Court can control it.

TOOHEY J: How can you do that within the framework of answering the questions in the case stated? Unless one then took the further step of going back to the writ itself and looking at the relief that is sought by the writ.

MR GRIFFITH: The Court never has to answer questions on a case stated.

TOOHEY J: That may be true but what we are faced with is a case stated, at least at this stage of the litigation.

MR GRIFFITH: Your Honour, I must say I have learnt over the years never to be involved in a case stated. Question stated by a judge give greater flexibility than a case stated. But we would submit that this Court is capable if faced with these obvious practical issues of necessity to take procedural steps to deal with it.

TOOHEY J: Well, that may be. What I am querying, though, is whether it can be done within the framework of the case stated itself, or whether answering the questions must then in a particular situation lead to reconsideration of the relief sought in the statement of claim.

MR GRIFFITH: Your Honour, we think probably it cannot on those questions. If one got to the point of invalidity it would be necessary to face up to these practical consequences of necessity and we would submit, your Honour, even prior to any order being made by the Court the matter should then be called on, the Court giving reasons up to that point, perhaps a little bit modified from the suggestion we made last week in respect of severance issues, but a similar idea, to address what would then be serious, urgent, and practical issues as to how this statement of principle could be dealt with.

There might be other States which, by obvious inference, could be affected by that. Perhaps other interveners will indicate if that is a possibility. We submit the Court has the capacity to do that. It may well be, your Honour, inappropriate initially to answer even questions 1 and 2. We would have thought that question 3 most certainly would be inappropriate without the Court having some information before it as to what would be the consequence of making that order in the context, we would submit, your Honour, that as a matter of constitutional necessity there should be an election by the due date one way or another even if it is only for an interim purpose.

BRENNAN CJ: Even if there is some problem of the kind that you are speaking about, why should that be the problem for the Court to solve? If the declaration of invalidity were made, why would it not then be a matter for the Parliament, assuming it to have both de jure and de facto authority on its behalf, to formulate its own solution to the problem thus created?

MR GRIFFITH: Yes, your Honour. One would look first, we would suppose, to that solution. So that assuming if the Court gives judgment, say, in six months or so and it is another year to the election, one primarily would look there but, your Honour, what we do admit is admit the possibility that if there was a situation of constitutional impasse, as it were, an election mandated by a date when there is no substitute system in place then, your Honour, we say that there would be capacity for this Court to participate for reasons of constitutional necessity, but the suggestion your Honour makes could be regarded as a primary one.

BRENNAN CJ: What are the provisions of the Western Australian Act - perhaps this is not a question for you - which deal with the holding of elections?

MR GRIFFITH: I did not want to get involved at all, your Honour, so far down the track.

BRENNAN CJ: No. Perhaps we will ask Mr Zelestis about that in due course.

MR GRIFFITH: Yes, but, your Honour, I think on reflection, your Honour’s reference to that as being the first place to go would seem to be logically appropriate. I was really thinking more of the situation if there is a position of absolute unresolvable constitutional ‑ ‑ ‑

BRENNAN CJ: Let me raise this with you, Mr Solicitor, because it relates a little to a question I asked you earlier. If the Commonwealth Electoral Act is judicially reviewable for conformity with sections 7 and 24 and if, therefore, this Court has a jurisdiction to compel compliance with those sections in the event of disparity between the Commonwealth’s law and those sections, is there anything which ought to be taken into account in considering whether or not this Court might not make an order directing a scheme in conformity with the sections?

MR GRIFFITH: Your Honour, it seemed clear from McKinlay that the Court embraced the situation where the Court may be placed in the position of directing a scheme, or even then, your Honour was placed in the position of directing a single‑member electorate. That was a possibility. We would submit that the Court would have that power. It must be the inherent power in the Court to intervene.

BRENNAN CJ: And would have therefore a corresponding power under 73(2)(c) of the Western Australian Constitution?

MR GRIFFITH: Your Honour, my hesitation is that we have consciously not become involved in the terms of the Western Australian Constitution itself.

BRENNAN CJ: Except in so far as you have picked it up by section 106.

MR GRIFFITH: Yes, that would be the case, your Honour. We would note that in McKinlay at page 3 of the headnote one picks up that section 12 of the Representation Act was struck down there, and we had the consequent McKellar’s Case arising from that; and in effect the amendments were required out of McKinlay that there be regular distributions mandated and the present provisions of the Act, I think, seek to comply with what the Court stated then was what was required. I think as far back as McKinlay it was accepted that the Court did have this capacity fully to participate and supervise into what we might call the purity of the Commonwealth electoral process. The Court showed itself conscious of the temporal aspects that it would be unhelpful to have a declaration on the eve

of an election but nonetheless the Court can participate on the issues of principle. Subject to any other matters where I may assist the Court, that is the submissions of the Commonwealth.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Solicitor for New South Wales.

MR MASON: Your Honours, we trust the Court would have our original outline of submissions as filed, and a small bundle of papers that were provided to the Court officers just this morning, being some supplementary submissions about double entrenchment.

As to the jurisdiction of the Court, our submission is that this claim is properly brought because it is a claim of invalidity of a State law based upon both State and constitutional grounds. In those circumstances, in our submission, the Court has jurisdiction for the whole cause unless the constitutional ground was a colourable one which it is not. The authority for that proposition are collected in a recent judgement of this Court in Stack v Coast Securities (No.9) Pty Ltd (1983) 154 CLR 261, at 290 to 291, a joint judgment of Justices Mason, Brennan and Deane. Earlier authorities such as Hopper’s Case and Carter’s Case are discussed.

Your Honours, in paragraph 2 of our main outline of submissions we address the question of the constitutional basis upon which the representative democracy principle affects the challenged West Australian law. We seek to persuade the Court that there are two alternative bases; one resting in State law; and one resting in the federal Constitution. The basis derived from the federal Constitution, however, differs somewhat from the way in which some of the submissions by our learned friends, Mr Bennett and the Solicitor‑General for the Commonwealth have put it. For example, in paragraph 70 of the plaintiffs’ written submissions, it is submitted that section 106 is the primary basis on which State constitutions are made subject to the Commonwealth Constitution and consequently, to implied limitations and guarantees in it. The way that is stated is that any implication in the federal Constitution trickles down automatically to State constitutions simply because of section 106.

We do not support that submission, but since those to the right of me on the Bar table will be putting it in more detail I will not dwell upon it. However, we do submit that the federal Constitution recognises - as your Honour Justice Gaudron put it in the passage that is quoted on page 1 of the submissions, expressly recognises the democratic nature of the States’ Constitutions and, more significantly, the representative nature of those Constitutions because there are references in the federal Constitution to the fact that the States have Constitutions, have governors, have parliaments, have electoral processes and have ministers. Those are more than sufficient, in our submission, to represent a constitutional recognition of the fact that the States function as a form of representative government.

Your Honour Justice McHugh in Theophanous’ Case 68 ALJR 713, at 760 to 761 stated that, in essence, the passage in Clayton v Heffron, to which I think you drew attention this morning, supported the proposition that the federal Constitution was effectively silent as to the representative or democratic form of government in the States. To that we would make two responses. We would submit that the federal Constitution does recognise that the States have Parliaments. It might be one thing to say it does not require that it be a bicameral electoral system, but there is, nevertheless, a recognition of a parliamentary system which clearly has electoral processes and ministers in it and that that is a sufficient recognition for the present purposes of representative democracy.

McHUGH J: Representative democracy or representative government?

MR MASON: I am happy to say representative government for the moment. A second response would be to analogise from some of the reasoning based on section 80 which is to the effect that as long as you have trial by jury then you must have it according to a particular constitutional essence as defined in this Court’s decision in Cheatle and whether or not the federal Constitution requires the State system to remain always one of parliaments, ministers, et cetera, so long as it does then an implication flowing from principles of representative democracy can find its recognition in the federal Constitution.

Your Honours, the alternative submission is that there is entrenchment by force of the Constitution Act of 1889 of Western Australia, and may I therefore pass briefly to the document we have handed up this morning where three alternative grounds for accepting the legal efficacy of entrenchment are advanced. The first is a general proposition stated, for example, by Lord Pearce in Bribery Commissioner v Ranasinghe, set out in paragraph 2 that

a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law.

That very general principle which is free of a need to construe the section 5 of the Colonial Laws Validity Act is discussed by Mr Justice Dixon in Trethowan, the passages that are referred to there. Sir Garfield Barwick in Cormack v Cope, the passages from Victoria v The Commonwealth in the judgments of Chief Justice Barwick and Justice Gibbs, and we would particularly draw the Court’s attention to the passage at pages 163 and 164 of 134 CLR, where Mr Justice Gibbs expressed the view that manner and form requirements put into rigid and non-rigid Constitutions are efficacious. I will not read the passage but it goes for both of those pages.

Justice Deane expressed a similar view as we read the passage in Smith v The Queen that is referred to at the top of page 2 of the outline of submissions and I will return at a later stage in the submissions to the decision of the Supreme Court of Canada in R v Mecure that is cited in paragraph 2, because it deals also with some of the remedial issues that have arisen in this case, but there is a general discussion about manner and form entrenchment in that case as well.

Your Honours, we are not submitting that anything that professes to be a manner and form provision would in truth comply with the principles stated by Lord Pearce in the Bribery Commissioner Case. A provision that said, for example, that no law shall be passed unless it is accompanied by a certificate by the leader of a particular party would not be a genuine manner and form provision. It may be that a provision that said it had to pass by some fantastic majority, 99 per cent, would not be a true manner and form provision, but would in substance be a clog upon the power of a later Parliament to pass a law.

The manner and form requirement imposed in the present law is one for an absolute majority and passage at a referendum. In the Bribery Commissioner v Ranasinghe Case which appears to be accepted as correct in its determination as well as its reasoning, there was a two-thirds majority requirement entrenched in the Celon Constitution.

But nobody could say, we would respectfully suggest, that a requirement that involves the people at referendum is not a genuine manner and form requirement. We do, however, draw the Court’s attention in paragraph 5 to some statements in the opposite direction. The decision in the South East Drainage Board Case has been criticised by commentators because it appears, it has been suggested, that the Court, as it were, looked the wrong way around. The reason why manner and form entrenchment provisions are efficacious is that they prescribe the way in which the later law shall be passed if it is to be duly passed, whereas the reasoning in the Drainage Board Case seemed to look at the entrenching law rather than the later law.

But another possibly basis for distinguishing those dicta are that it concerned a provision, I think, of the Real Property Act and was not a constitutional measure, and that has been seen by some commentators as a point of distinction. Could we add just to the references in paragraph 5 a citation to the Canadian Case, Reference re Canada Assistance Plan, which is cited at paragraph 3 at 323.

Your Honours, there has been extensive academic discussion about manner and form post-Australia Act and outside of the Australia Act, and we have collected some of the references in paragraph 6. If I may just add one additional one. Your Honours will see at the top of page 3, the end of the first line, there is a reference to an article by Professor H.P. Lee. There is a riposte at page 540 of the same journal, 15 UNSWLJ by Mr Goldsworthy.

The second basis for the efficacious double-entrenchment is section 6 of the Australia Acts. That, in our submission, is the relevant provision, because the 1987 law that is challenged was passed after the commencement of the Australia Acts, and section 6 of the Australia Acts, picking up, as it were, the proviso to section 5 of the Colonial Laws Validity Act states that the law-making powers of the State legislatures have to comply with the manner and form prescribed as regards:

laws respecting the constitution, powers, and procedure of such legislature.

Our submission is that section 73 of the West Australian Constitution Act 73(2)(c), in particular, is such a law. It complies, in our submission, with the test suggested by Justice Dixon in Trethowan’s Case set out in paragraph 9

the power to make laws respecting its own constitution enables the legislature to deal with its own nature and composition.

An electoral law, we would submit, is of that nature. We do, however, refer the Court to Clydesdale v Hughes, an earlier decision, not based on section 5 of the Colonial Laws Validity Act, but an earlier imperial Act dealing with reservation obligations where the expression “Constitution of the Legislative Council” is referred to and where it was held by the Court that a law dealing with qualifications for membership was not a law that involved a change in the Constitution of the Legislative Council.

We would submit, nevertheless, that case can be distinguished and that a law relating to the comparative size of electorates can be properly characterised as one respecting the Constitution of the Australian legislature. I am reminded that Clydesdale v Hughes dealt with the (1889) West Australian Act itself, but a reservation provision in it.

Your Honours, some reference was made in another context to the Australian States Constitution Act 1907, an imperial Act, which is in the small bundle of papers we have handed to the Court this morning. It dealt with and essentially modified earlier imperial laws as to the need to reserve certain Acts for Her Majesty’s pleasure. One category of those laws set out in section 1(1)(a) were laws which alter the Constitution of the legislature of the State. Subsection (2) went on to provide that:

For the purposes of this section a Bill shall not be treated as a Bill altering the constitution of the Legislature of a State.....by reason only that -

Then in effect various categories of what one might call electoral laws are set out.

Also included in the bundle of papers we handed to the Court this morning is the second reading speech of Lord Elgin relating to the 1907 imperial Act. At page 1395 of the Hansard in the middle of the page, his Lordship spoke of the genesis of this provision being disagreement between imperial and colonial law officers as to the meaning of the earlier provision. The colonial law officers in effect were getting their way through the enactment of this provision in the 1907 Act which said that electoral laws were, for the purpose of this Act, not to be treated as laws altering the Constitution of the legislature of the State. The only point in referring to all this - and the Court may then think why did we do this - is this submission, that here was a case where the imperial Parliament expressly accepted electoral laws from an otherwise general provision of laws involving the Constitution of the legislature of the State. So it is in one process of argument a form of expressio unius. The general provisions of section 5 of the Colonial Laws Validity Act which without such qualification continue to speak of laws respecting the Constitution of the States stand and, in our submission, an electoral law of this nature falls within section 5 itself.

GUMMOW J: How did this statute fit in with section 106 of the Australian Constitution? That is to say it was an alteration, was it, in accordance with the Constitution of the State, that passage of the imperial Act?

MR MASON: In 1900 and for some time thereafter the grundnorm of legal power was continued to be seen as the imperial Parliament. What they had perhaps given by the 1900 Constitution Act they could in their own legal perception modify by the 1907 Act or by the Statute of Westminster, which are examples of imperial alteration of State Constitutions.

But there is really no inconsistency in any event, in our submission. We would respectfully submit that the debate as to whether section 106 makes States part of the federal Constitution is perhaps a rather arid one. It perhaps has consequences with respect to section 78B notices but otherwise is not very helpful in determining issues such as the ones before this Court. But section 106 cannot be seen as a self‑denying ordinance by the imperial Parliament and it perceived itself free thereafter to modify whatever provisions it had made about State Constitutions, as it did in the Statute of Westminster and is it did in the Australia Acts.

GUMMOW J: But the Statute of Westminster did not touch the Australian States.

MR MASON: No, perhaps I should have said as it saw itself free to do even beyond the States in the Statute of Westminster.

Your Honours, the third basis for efficacious double entrenchment in State constitutions is, in our submission, section 106 of the Constitution itself, and here we are dealing only with the tail end of section 106, the provision that speaks of the power to amend the State Constitutions in accordance with the Constitution of the State. So that if a State Constitution by its own Parliament prescribes its own manner and form requirements, section 106 gives, as it were, constitutional efficacy to that form of entrenchment. And that was what the Full Court of the Supreme Court of Western Australia said in Western Australia v Wilsmore (1981) WAR 179 at page 184. It was beyond the passage that my learned friend Mr Bennett read the other day. It is a short passage at page 184:

section 106 of the Commonwealth Constitution by its own force and for its own purposes is a law which requires that such manner and form provisions as are to be found in the State Constitution conditioning the power to amend the Constitution be observed.
Your Honours, may I then return to the main outline of the submissions and paragraph 3 which seeks to give flesh to the principle of representative democracy, assuming that it has become embedded into the State Constitutions, either by their own manner and form requirement or by those provisions of the federal Constitution which we rely upon. Perhaps there is a prior question and it is this: our submission is that this Court, and by that we respectfully mean each member of this Court, should accept the Nationwide decision as establishing the principle of representative democracy as a constitutional implication that is of fundamental importance in a controlled Constitution, and the principles of stare decisis in constitutional litigation ‑ ‑ ‑

GUMMOW J: No one has any difficulty with that; the question is though, is this not a category of indeterminate reference Professor Stone would have looked at? In other words, it raises a lot of other questions which you cannot answer simply by repeating the primary starting point.

MR MASON: No, but I would wish, to the extent that I may, to bring all of the Justices to that starting point before one endeavours to exegete what is meant by representative democracy.

DAWSON J: But you substitute representative government. There was not anyone who disagreed with this, was there.

MR MASON: No. But whilst the fleshing out of the principle is something which I will come to, not all of the Court has accepted that principle in the earlier cases but, nevertheless, that was the judgment of the Court.

DAWSON J: Where is it not accepted that representative government is part and parcel of the Constitution?

MR MASON: Your Honour Justice McHugh took a narrow view in the Theophanous Case and in the Political Advertising Case which did not proceed from, as we would read the judgment, an acceptance of a wider principle of Constitution entrenched representative democracy.

DAWSON J: In other words, some members of the Court did not accept what you are now going to say is a necessary part of representative democracy.

MR MASON: No, I am not saying that. I realise I have to make good that part of it, but I am putting a prior submission, that, with respect to what your Honour Justice Gummow put to me, it is a controversial proposition based upon some earlier judgments of this Court in relation to section 118, some Justices taking the view that an individual Justice is not bound, as we would read the authorities, by a judgment of this Court if it is a matter of fundamental importance to that Judge or if that Judge is not personally persuaded by the earlier determination of the Court.

I am respectfully submitting that as a principle of deriving from the rule of law and deriving from the principle that everybody is bound by the Constitution and the Constitution as interpreted by the Court, then as a starting point, and I realise it is an indeterminate starting point, but nevertheless - - -

GUMMOW J: Yes, that is a problem. Maybe it is the promise as well as the problem. It is indeterminate. That is all I am saying.

McHUGH J: The problem as I saw it in Theophanous was this, that Capital Television held that there was a principle of representative democracy that struck down Commonwealth legislation. True it is that some Judges in that particular case - in fact, three of them; maybe a majority ‑ said it extended to the States as well. That did form no part of the ratio as far as I was concerned.

MR MASON: I accept that, and I am not - on that part of the reasoning, I am not seeking to use that aspect of the decision for what I will call the trickle-down basis. The reason why the implication carries over to the State is a matter upon which this Court is free.

McHUGH J: And then, again, in Theophanous itself, arguably a State defamation law could not apply to discussion of the activities of a federal parliamentarian. But, Stephens is a case of a very different category. It seems to me that is a precise decision that, not only does the principle of representative democracy apply throughout the Constitution, but it strikes down State laws and common law which is inconsistent with that principle.

MR MASON: Yes, and the free speech doctrine derives, according to the majority decision in Political Advertising, from the implication of representative democracy, not as your Honour said in Theophanous at page 759. Your Honour took a narrower, as it were, starting point when you held that the Constitution did -

not adopt or guarantee the maintenance of the institution of representative government or representative democracy except to the extent that certain sections of the Constitution embody it.

McHUGH J: Yes, but I must say I used Theophanous to re‑examine the whole question, but now the question - I mean, judges with as disparate approaches as Sir Garfield Barwick and Justice Murphy have said that a court applies the text of the Constitution, not the judicial decisions. The other view is the view espoused by Justice Gibbs in the second Territorial Senators Case and that is the problem.

MR MASON: Yes. I am submitting what, in my respectful submission, is the answer to the problem consonant with the principle of the rule of law that where a majority decision of the Court determines a particular principle then that decision, until the Court as a whole departs from it, binds each member of the Court, just as it binds everyone else in the community.

McHUGH J: I have no problem with the idea, although it is contrary to my own views of the cases, that the constitutional principle limits the Commonwealth. What I really have difficulty with is the idea that it limits the States.

MR MASON: I am not submitting that there is a binding decision on that aspect of the matter, so I was really putting the stare decisis submission in the context of what does representative government mean, and I realise it is a concept of indeterminate reference, but I do submit that one starts with the proposition that a controlled Constitution that has an elected Parliament and a responsible ministry does import the implication of representative democracy and I am now about to say what, in my submission, that means, realising that the answers are not so clear in that question. Your Honour Justice McHugh discussed this matter in Re Tyler; Ex parte Foley 68 ALJR 507.

McHUGH J: Yes.

MR MASON: Your Honours, our submission is that the implication of representative democracy does control the comparative worth of votes but not in an absolute sense so there is a balance to be struck, but we do submit that the implication does have something to say about the comparative size of electorates and as the difference between night and day, it provides an answer in the facts of the present case. In paragraph 3 of the outline of submissions that we have given to the Court, we endeavour to explain why one goes from representative government to electoral equality or approximate electoral equality.

Ultimately it is based on a concept of sharing in the exercise of the governmental powers that are vested in the people and that are recognised in the principle of representative government itself. The government is ultimately a mechanism for giving effect to the wishes of those who are represented and just as if speech is gagged people cannot exercise an effective true choice, if the voting system is skewed equally they are denied of an effective choice. If 99 per cent of the people are put into one electorate and 1 per cent of the people are put into another, it is a travesty of saying that the government as elected represents the people who have been put into the 99 per cent electorate.

BRENNAN CJ: That surely cannot be put on the basis of a government’s function being to represent the will of the majority of the people.

MR MASON: No, but it is put on the basis that the government is to be truly subject to, I think a motion is the correct term, but removal by the people if a majority of the people are dissatisfied with the effectiveness of the government. It is the threat of removal at the ballot‑box that has to be a real threat. If free speech is gagged, then the capacity to influence electors in giving effect to that threat is removed. If votes are just bits of paper that are not counted or do not have any true comparative worth, then the threat is worthless.

DAWSON J: You would say that gerrymandering is on the same basis as one vote, one value presumably.

MR MASON: No, a gerrymander has a different vice. My understanding of a gerrymander is an electorate of equal size but its boundaries are skewed in order to put people with a particular community of interest into one section. Whilst that is anti‑democratic in a sense, it is not anti‑democratic with respect to the voting rights of a citizen.

DAWSON J: It is, is it not? It is skewed, to use your term. The boundaries of the electorate are skewed so that a person’s vote is less value than it would otherwise be - in a particular sense.

MR MASON: In a particular sense, that is correct, but the skewing is because it creates a false, unnatural, whatever word you want to use, community of interest. Now, we are not submitting that that is of the essence of the democratic principle we are advancing.

DAWSON J: But I do not see in the result that there is any difference in you, in fact, as it were, manipulating the system to achieve a particular result.

MR MASON: If one may grant that for the purpose of argument, there are many wrongs which the Constitution cannot correct, but there are some which it can.

DAWSON J: Why do you draw a distinction between one and the other?

MR MASON: Simply because the Constitution, like law generally, is not a universal norm. It cannot solve all of the world’s problems, but those that it does address it may and should solve.

DAWSON J: But it does not address this, you see.

MR MASON: When you say “this”, that is what we are debating about, but it is not answered, in my respectful submission, by pointing to the gerrymander example as being a problem that does not solve. It does not solve the problem of poverty.

McHUGH J: But even if you have one vote, one value, it does not mean that you get a government that is truly representative because, in the real world, and because of the party system, it depends upon how the voters are distributed and, therefore, if a government is able to campaign well in marginal seats, they can get a majority when have a minority of voters for them.

GUMMOW J: As regularly happens.

MR MASON: Yes, but that is a consequence of where people choose to live, not a consequence of the size of their electorates. If the supporters of one party ‑ ‑ ‑

GUMMOW J: It assumes they have choices, Mr Mason, free of economic imperative.

MR MASON: Yes, but if people with a community of interest that attracts them to one party rather than another congregate in a particular area, it is true that, on a national average, one party gets 52 per cent of the vote but less than 50 per cent of the seats, and one can say on a global sense then there has been on that approach less than absolute parity of representation, but the fallacy in that, in my submission, is that one is going beyond the voting rights of the electors.

McHUGH J:You see, you do not even get equality around the nation, in a sense, because electoral divisions cannot extend beyond the States, so New South Wales, being the most popular State, may have a disproportionate number of members who are actually elected to a government. Every other State may be opposed, for example.

MR MASON: That is a consequence of an express provision in the Constitution.

McHUGH J: Yes, I know.

MR MASON: That problem emerges in a number of different constitutional contexts and an otherwise general principle is met by a specific exception that permits something to happen. So, in my submission, that does not destroy the generality of the principle.

McHUGH J: I accept that once you accept the principle, but it seems to me a strong indicator that there is no such principle to be found in the Constitution. However, that is a lost argument.

MR MASON: No. One can put an absolutist example the other direction, of course, and then if one puts the position of the 99 per cent in one electorate and 1 per cent in another, I would submit that one would clearly say then that something has gone wrong with the “directly elected by the people” implication and the broader implication of representative democracy which flows from that and other sections. That really only highlights the difficulty in drawing the line, but it does not say that no line is to be drawn, in my submission.

BRENNAN CJ: Is it the problem that one might be deflected from the real question by considering representation as being some reflection of majority wish or policy, whereas what we are concerned with here is a power to contribute to the process by which government with its power is elected? In other words, it does not matter very much about what policies there are provided everybody has the same power to contribute to an outcome.

MR MASON: Yes, and it is representative democracy, it is not direct democracy in some sort of Athenian State nature. The contribution of the people is at the time of electing the government, although the threat to remove support is something that requires a level of freedom and equality ‑ ‑ ‑

BRENNAN CJ: That does not seem to me to carry much because they are only elected with a certain mandate which has a terminus after three years.

MR MASON: Yes.

BRENNAN CJ: Certainly there may be a change of government after three years, but it is not a question of removing those who are there. It is a matter of re-electing those who might seek it.

MR MASON: But there has to be a fair run at the target every three years, to put it in very crude terms, particularly since those who are elected are armed with powers to change the rules themselves.

BRENNAN CJ: Yes, I am not suggesting a denial of Nationwide News. My concern is to identify the nature of the power or right which is said to be the subject of equal distribution.

MR MASON: It is the ballot-casting right, but that is because a general election has at least two functions, as we have set out at the top of page 2. It determines who will exercise legislative and executive power and it selects local members who have what we have described as the ombudsman function. That is the role that the individual elector operates and that is the right which is encompassed in the right to vote. It is because, in an Australian context, one tracks down from an implication of representative democracy ‑ ‑ ‑

BRENNAN CJ: Perhaps the time has virtually come when we should adjourn.

MR MASON: I will be about 15 more minutes.

BRENNAN CJ: Mr Solicitor for Queensland, have you any estimate?

MR KEANE: .....

BRENNAN CJ: We will adjourn until a quarter past two.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Mr Solicitor.

MR MASON: If your Honours please. I will seek, if I may, to give some content to the category of indeterminate reference, namely, representative government and its application to the equality principle which we are espousing. The starting point is the recognition which we seek to have of the role of the representative and the relationship between the voter and the representative, which is a dual one.

The general election, as we submit, determines who will exercise legislative and executive power and selects those who will as local members exercise the function of grievance redress. A representative, therefore, having those dual functions, has a relationship with the voter which does not arise solely at the minute the ballot is cast and it is the dual focus of government formation and the ombudsman function that, in our submission, creates some tension but allows some tolerance from an absolute equality principle. The submission, before I address how this comes about, is that the right is an equal share in choosing a representative and an equal ability to obtain access to that representative during the term of his or her office.

The way the principle emerges from the doctrine of a representative democracy is perhaps best seen in three passages from the cases we refer to in the middle of page 2, the first is the Board of Estimate of City of New York v Morris, which is in the bundle of papers I handed the Court this morning, 489 US 688, at pages 693 and 694, because there in the opinion of the court delivered by Justice White, the linkage between the equality principle and representative government is expressly made. Just below the middle of the page 693 it is stated that:

These cases are based on the propositions that in this country the people govern themselves through their elected representatives and that “each and every citizen has an inalienable right to full and effective participation in the political processes” of the legislative bodies of the Nation, State, or locality.....Since “most citizens can achieve this participation only as qualified voters through the election of legislators to represent them,” full and effective participation requires “that each citizen have an equally effective voice in the election of members of his...legislature.” As Daniel Webster once said, “the right to choose a representative is every man’s portion of sovereign power.”.....Electoral systems should strive to make each citizen’s portion equal. If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts. Hence the Court has insisted that seats in legislative bodies be apportioned to districts of substantially equal populations.

The Canadian case which illustrates the same proposition, but also something about remedies, is Re Dixon v Attorney-General of British Columbia (1989) 59 DLR (4th) 247, a judgment of her Honour Justice McLachlin, when Chief Justice of the Supreme Court of British Columbia, stating views which her Lordship repeated when she went onto the Supreme Court in a case I will come to very shortly. The relevant passage commences at page 259 of the report. It concerned the right to vote guaranteed by section 3 of the Charter, and the impact of that right upon the equality principle. And towards the bottom of page 259 her Ladyship said:

It cannot be denied that Canadian society rests in large part on the traditional liberal ideal of equal respect for the dignity and worth of each individual. Where political rights are concerned, this ideal would accord equal rights to participate freely with one’s fellow citizens in the establishment of the laws and rules which govern the conduct of all. The correlative of liberty is the assurance that each citizen is equally entitled to participate in the democratic process and that each citizen carries an equal voice in that process.

Although the history of the development of Canadian democratic rights differs significantly from the history of their development in the United States, the concept of equality of voting power is basic to both. In the United States, the concept was ushered in by a revolution. In England, the idea took hold through a more gradual process. Parliament, born as a privileged body representing a select few, evolved gradually over the centuries to a body representing the citizenry as a whole.

And then there is reference to that applying in Canada.

Her Ladyship ruled the electoral system to be invalid and she addressed the question of remedy at pages 279 to 281. In particular, perhaps at the bottom of 280, she considered the range of potential remedies, about point six on the page indicating:

that at a minimum, this court has the power to grant a declaration that the impugned legislation infringes the constitutional right to vote -

then at 281, the first full paragraph, she said:

If the existing electoral boundary system is struck out because it violates the Charter, how can the orderly democratic processes on which our system is founded be maintained?
The first answer is that the court must proceed on the premise that, just as the court does what it must do under the Constitution, so will the legislature.

Then there is a reference to that. At page 282, about point six, she said:

It may thus be assumed that the legislature will promptly enter on the question of what remedial steps should be taken to remedy the deficiencies in the existing legislation. But resolution of the problem cannot be accomplished overnight. Fashioning districts which conform to the principles inherent in the Charter may take some time.

Then the reference to debate. She then asked:

What would happen if in the interim the government should fall, requiring a new election with no electoral machinery in place?

Reference was made to the Language Rights Case, to which I think Mr Bennett took the Court. Near the top of 283, she said:

The absence of the machinery necessary to conduct an election in a system where in theory an election can be required at any time, qualifies as an emergency of the magnitude of suspension of all provincial legislation. In my view, it is open to this court to specify a temporary period during which the existing legislation remains valid and during which the legislature enacts and brings into force an apportionment scheme which complies with the Charter.

That is a suggestion of an approach. I am reminded that I had intended to remind your Honour Justice Dawson of the expression “true choice” which your Honour used in the Political Advertising Case 177 CLR 106, at 187 as being the right of the voter.

The third passage is in 81 DLR 416 Reference re: Electoral Boundaries Commission Act, a decision of the Supreme Court of Canada delivered by Justice McLachlin, as she had become. In that case the disproportionate electorates were held not to be inconsistent with the right of equality - my words not hers - that derive from the right to vote. There are a couple of passages at pages 35 and 36, if I may take the Court to them. At 35 just above f, she said:

A system which dilutes one citizen’s vote unduly as compared with another citizen’s vote runs the risk of providing inadequate representation to the citizen whose vote is diluted. The legislative power of the citizen whose vote is diluted will be reduced, as may be access to and assistance from his or her representative. The result will be uneven and unfair representation.

That is the link, as it were, between representation and equality:

but parity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation.

Then there is reference to a speech:

Notwithstanding the fact that the value of a citizen’s vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors.
First, absolute parity is impossible. It is impossible to draw boundary lines which guarantee exactly the same number of voters in each district.....Secondly, such relative parity as may be possible of achievement may prove undesirable because it has the effect of detracting from the primary goal of effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples.....It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen’s vote as compared with another’s should not be countenanced.

Then she restated what had been said in Dixon.

So there is a balance to be struck, but the balance to the extent that it permits deviation from equality reflects the interests of more effective representation when one has identified what the goals of that are. Your Honours, we do alternatively put the submission on the basis of the dignity and worth of the individual citizen, and this raises the issue that your Honour Justice McHugh took in an exchange with my learned friend, Mr Bennett, about particular groups and would the principle that is being espoused here be inconsistent with, for example, an electorate that was carved out just to represent a particular group of people because of race or some other characteristic.

My submission is that that would not be a relevant or constitutionally permissible characteristic, and the best way of putting that is to refer the Court to the very recent decision of the Supreme Court of the United States in Miller v Johnson, and I have handed to the Court a couple of pages from that judgment, because that was a case where there was, in effect, a gerrymander for the purpose of creating an electorate that would give black voters districts where they would predominate, and the Supreme Court struck down that, but the reasons they gave are, in my submission, indicative and relevant in answering the issues that your Honour Justice McHugh put.

On the second page of what I have handed up, the left-hand column, about point 4, in the judgment of the Court, it stated:

The idea is a simple one: “At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens ‘as individuals, not “as simply components of a racial, religious, sexual or national class.” ’ ”.....When the State assigns voters on the basis of race, it engages in offensive and demeaning assumption that voters of a particular race, because of their race, “think alike, share the same political interests, and will prefer the same candidates at the polls.”.....Race-based assignments “embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts‑their very worth as citizens ‑

and I emphasise those words -

according to a criterion barred to the Government by history and the Constitution.”

GUMMOW J: This turned on the equal protection clause, did it not?

MR MASON: Yes. Your Honours, in paragraph 4 of our outline reference is made to one aspect of McKinlay which we certainly would support, namely, the upholding of the validity of section 19 of the Commonwealth Electoral Act and in 135 CLR 37, and the other passages that are referred to in paragraph 4 of the outline, reference is made to section 19 and the reason we refer to page 37, that is the joint judgment of Justices McTiernan and Jacobs, where reference is made about halfway down the page to section 19 which:

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 requirement 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.

Reference is made to passages in Dixon’s Case and the Electoral Boundaries Commission Case in judgments of Justice McLachlin to which I have already taken the Court, at least as to part. Your Honours, in paragraph 6 of the outline reference is made to an American decision, Brown v Thomson 462 US, I do not think the Court need go to it. It is interesting that that decision was handed down on the same day as Karcher v Daggett to which the Court was taken.

In Karcher v Daggett, the Supreme Court held that for congressional elections there has to be near absolute equality, but for State elections, notwithstanding the presence of the equal protection clause, a deviation of 10 per cent would be, prima facie, acceptable. It would not even be examined, 10 per cent, and maybe more would be acceptable.

May I say, finally, just something about remedy, your Honours. In the small bundle we handed up this morning, there is an extract from the decision of your Honour Justice McHugh in the Court of Appeal of New South Wales in Peters and Another v Attorney-General in and for The State of New South Wales 16 NSWLR 24, at 38 to 40, where your Honour has collected decisions relating to the principles of voidness, as it were, constitutional voidness, and possible departures from an absolutist position in some of the American case law. I do not wish to develop that but it has a quite lengthy discussion and summary of those principles.

So far as the Canadian case law is concerned, a reference has already been made in our submission to what happened in Dixon’s Case. There was a sequel to Dixon’s Case where, your Honours will recall, Justice McLachlin in effect stayed the court’s hand. There was a later Dixon’s Case, Dixon v Attorney-General (British Columbia) (1989) 60 DLR (4th) 445, where a petitioner applied for an order setting a date for terminating the stay, saying that the Parliament had had long enough. That application was dismissed for reasons which are given in the report and there was a discussion of the same principle in an even later decision called re McKinnon 101 DLR (4th) 362.

McHUGH J: I suppose the most famous order delaying implementation was the order made in Brown v Board of Education to proceed with all deliberate speed.

MR MASON: Yes, and I think even this year there was some follow up, as it were, of that implementation. Finally, your Honours, may I take the Court to the decision of the Supreme Court of Canada in Mecure v The Queen (1988) 48 DLR (4th) 1. I think again it is in the little bundle I handed up. Father Mecure was charged with speeding and he claimed the right to be tried in French and to be given a copy of the French statute, though he was tried in Saskatchewan. The basis of the right was section 110 of the North‑West Territories Act, page 2, about the middle of the page, provision that:

“either the English or the French language may be used.....and all ordinances made under this Act shall be printed in both these languages.”

His claim of those two rights was denied. He appealed. There were interventions. He died. The interveners were permitted to continue the appeal and Father Mecure was posthumously acquitted. For reasons which are probably rather obvious, they did not order a new trial. At page 63 in the bundle right near the bottom, there is a discussion about manner and form provisions and how section 110 in effect enacted a valid and effective manner and form requirement, namely laws shall be passed in French and English. Non‑compliance with that requirement, though not entrenched, was held to be requisite because of the principle in Bribery Commissioner v Ranasinghe referred to at page 64.

At page 65 there is some discussion about the basis for the entrenchment. Reference is made to section 5 of the Colonial Laws Validity Act and Trethowan’s Case. At about point 6 on the page his Lordship Justice La Forest pointed out that the Colonial Laws Validity Act was an enabling Act, not a provision aimed at invalidating statutes. He referred to the South African decision of Harris v Minister of the Interior as establishing a more broad principle about double entrenchment.

At page 66, which hopefully is the last page of the bundle, there is a discussion about remedy. Reference is made to the Language Rights Case in the middle of the page and at the bottom of the page 66 and going over to

the top of page 67 he referred to the courses open to the legislature. They could either have the statute printed in English and French or they could repeal the requirement that they be bilingual, but to do that they had to repeal it by a law in French and English. In other words, they had to comply with the manner and form though it was not entrenched. Finally, your Honours, to remind the Court of the power of Order 43 rule 3(2) which says that:

By special leave of the court, a judgment may be ante‑dated or post‑dated.

What remedial effect that has I leave to others to address the Court on. If the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor for Queensland.

MR KEANE: May it please the Court, your Honours have our written submissions, I think. Your Honours, our learned friend, the Solicitor‑General for New South Wales, has addressed your Honours in relation to the abstract concept of representative government. The focus of our submission and that to which we wish to direct only short observations is the phrase “chosen by the people”. It is our contention that this phrase, which is used both in the Commonwealth Constitution and in the Western Australian Constitution, does import practical equality of voting power in a way that can be given legal effect, that is, effect by the Court.

The learned Solicitor‑General for the Commonwealth has invited the Court to hold that the limited effect given the phrase “directly chosen by the people” in section 24 of the Commonwealth Constitution in McKinlay’s Case was based on reasoning which has been subsequently rejected. Whether or not the Court accepts those arguments, the argument we wish to put, and put in the context that we do not accept that there is the trickle‑ down effect limiting State legislative power that the Commonwealth supports, is that the relevant constitutional standard is that entrenched in the Western Australian Constitution in section 73(2)(c). That provision does not identify any basis for differentiation between people in terms of the requirement of a choice by the people.

In McKinlay’s Case, where the phrase was considered in a different context, the four Justices who held that the phrase did not, in that context, import practical equality of voting power, relied explicitly on considerations of text in the Commonwealth Constitution and history in relation to the phrase, “To deny the proposition that section 24 imports a practical equality of voting power”. That can be seen in a number of passages. I do not think your Honours have had these read to you; we will only refer to them briefly.

In McKinlay’s Case at 135 CLR, the first passage is in the judgment of Chief Justice Barwick, at page 17 at the bottom of the page, where his Honour commences a consideration of the text of Part III of the Constitution by observing that:

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.

His Honour then went on to do that, pages 18 and following, and his Honour makes the particular point at the top of page 19 that:

Adult suffrage was unknown in the majority of the colonies of Australia in 1900.

His Honour further develops his consideration of the relevant textual provisions of Part III at pages 20 and 21. A similar approach was taken by Justice Gibbs commencing at the bottom of page 49:

The second paragraph of s.24 of the Constitution commences by laying down what appears to be an unqualified rule, namely -

and then his Honour continues to refer to other provisions in the text, concluding at the end of the long paragraph on page 50:

The apparently absolute words of s.24 may therefore need some qualification to enable them to work in harmony with the rest of the Constitution.

The point we wish to make is that the language which was entrenched into the Western Australian Constitution were the words “directly chosen by the people” without the context which the four members of the Court to whom we are referring here saw contra indications in context to dilute what would otherwise be the clear meaning of the phrase.

Similarly in the judgment of Justice Stephen at page 55 point 5, especially commencing at about point 8, or the paragraph commencing at point 8, and over the page to the end of the first paragraph there and then, again, at page 58 commencing at about point 1 and concluding after a reference to a number of provisions of Part III of the Commonwealth Constitution at about point 8 on page 58.

Finally in this regard there are the observations of Justice Mason at page 61, commencing in the second-last paragraph on the page, but in particular the last paragraph on the page where his Honour observes:

Part III of Chapter I of the Constitution contains several indications that equality or practically equality in the value of a vote, reflected in equality of numbers of electors or people represented by single member constituencies is not a constitutional requirement.

And then his Honour goes on to deal with those specific textural provisions at page 62 to conclude in the second-last paragraph on page 62, having referred to those various provisions:

The substance of the matter is that the conception of equality in the value of a vote or equality as between electoral divisions is a comparatively modern development for which no stipulation was made in the system of democratic representative government provided for by our Constitution.

Your Honours, two points we would make, not startlingly, but nevertheless points which should be made in our submission, are that the entrenched provision in the Western Australian Constitution was entrenched in 1978 at a time when universal adult suffrage was an established fact throughout the Commonwealth and the provisions of Part VII of the Western Australian Constitution Act, which contains section 73 and in particular section 73(2), do not appear to contain the contra indications of language of the kind referred to by their Honours in those passages.

GUMMOW J: And entrenched after the decision in McKinlay itself.

MR KEANE: Yes, your Honour, and lest it be said that that entrenchment followed judicial exegesis that said to the effect that “chosen by the people” does not mean chosen by the people with equal voting entitlement, it was entrenched using that phrase referred to by Sir Harry Gibbs as being an absolute phrase, without any context that might have diluted it or qualified it in any way.

GUMMOW J: Yes, and just going back to page 61 of Sir Anthony Mason’s judgment, to the second-last paragraph, do you say that the Western Australian legislation falls foul of the entrenchment in the sense that it is the sort of thing that the judge was talking about there, that is to say that what he said was perhaps conceivable has come to pass in this legislation.

MR KEANE: Your Honour, we would, that is the submission that the plaintiffs make, and it is a comparison which is more explicitly described in the joint judgment of Justices McTiernan and Jacobs, where they invite a comparison between the constitutional standard and the electoral regime. In our respectful submission, it is a difficult task to test the electoral regime against something as broad and indeterminate as notions of representative government or representative democracy, but it is a task which is easier to perform and which the Constitution expects courts to perform, to compare the electoral regime with the constitutional standard of direct choice by the people.

And to say that, your Honours, is not to say that “absolute mathematical equality rather than practical equality”, the phrase which Justice Mason used, but found not applicable in the particular context, practical equality does, in our respectful submission, accommodate consideration of community interest, regional representation and geographical factors, and while we, coming from Queensland, do not say of our arrangements, as Pericles said of the Athenian Constitution, that “we do not imitate others but offer ourselves as a model”; we certainly do not do that with our electoral history, but we do invite the Court to note that the arrangements that are presently in place as a result of recommendations of the electoral and administrative review committee following the Fitzgerald inquiry, do accommodate a number of remote, very sparsely populated seats, by allowing a particular weightage in relation to those, while insisting upon a margin of tolerance of 10 per cent in relation to what other electorates, but those are deviations that are rationally justifiable by reference to considerations of representation ‑ ‑ ‑

DAWSON J: When you say “giving a weighting”, what do you mean, a lesser number of constituents?

MR KEANE: Yes.

BRENNAN CJ: What is the justification for it?

MR KEANE: Your Honour, the justification is that these are very remote electorates of very large area, 100,000 square kilometres, but with not a lot of people in them. Considerations of community interest and geography were thought to warrant the allowance of such a degree of tolerance.

BRENNAN CJ: That would justify the difference in districts in Western Australia, would it?

MR KEANE: Not if your Honours accept the analysis that my learned friend, Mr Bennett, performed in which he sought to demonstrate to your Honours that the size of electorates in terms of numbers of people does not depend upon remoteness or, indeed, geographical size of electorates. He gave one example of a geographically small electorate situated very close to Perth but in the non-Perth zone which had a very very large number of people.

BRENNAN CJ: That might be a ground for impugning the work of the Electoral Commissioners, but so far as the Act distributing or directing the Commissioners to do their work in specific areas such as the city area, the mining and pastoral area, and so forth, do you accept the validity of that?

MR KEANE: That would then depend upon whether or not the Court accepts the submission that was made which we do not propose to repeat that the vice in the Western Australian legislative arrangements is that it commands a difference in numbers, commands a difference in voting power without reference to considerations of remoteness, sparseness of population, and community of interest.

DAWSON J: It would suggest a difference between urban areas and rural areas, which would suggest that that is the motivation.

MR KEANE: Not directly, your Honour. One cannot see directly that it is considerations of distance and remoteness and size.

DAWSON J: I do not suppose they can see that directly in your legislation either.

MR KEANE: One can, your Honour, because section 45(2), which permits it, refers to electorates of more than 100,000 square kilometres.

DAWSON J: Yes.

MR KEANE: Your Honours, we do not propose to seek to submit further in relation to whether your Honours should accept Mr Bennett’s submission. We would not urge your Honours not to.

BRENNAN CJ: In point of principle, how do you justify the larger electorates more sparsely settled having a weighted voting power?

MR KEANE: It is easier to justify them in terms of representative government in terms of the ombudsman function, the representation function that our learned friend, Mr Mason for New South Wales, referred

to than it is to justify it by reference to the concept of choosing directly by the people. We accept that, but what that phrase connotes, in our respectful submission, is practical equality and that notion of practical equality is sufficiently flexible to accommodate considerations of difficulty in terms of representation.

GAUDRON J: There is also the need, is there not, whether it comes from representative democracy or representative government, for some access to your local member?

MR KEANE: Yes.

GAUDRON J: The notion of access must be as much part of it as other considerations.

MR KEANE: Yes, your Honour, because one is speaking of the choosing of a legislature which has representatives and in that slightly extended sense we would accept what your Honour says with respect. Your Honours, those are our submissions.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Zelestis.

MR ZELESTIS: May it please your Honours, I propose to deal with the first five sections only of our written submissions, that is, paragraphs 1 to 35 and Ms Wheeler will follow and deal with the remainder of the case. I shall confine my submissions in two ways: firstly, to the question of whether an implication of electoral equality can be seen to emerge from the Commonwealth Constitution and, secondly, I shall confine myself, I hope, to supplementing rather than repeating what we have said in the introductory paragraphs of our submissions.

At the outset in our submission there is a fundamental question of approach which needs to be addressed more directly than it has to date. The question really is with respect to the construction of the Commonwealth Constitution, whether one starts with the notion representative democracy, which the plaintiffs and the Commonwealth seem to begin with, or whether one starts from a different point, simply with the Constitution in one hand and the question in the other, so to speak, because, in our submission, what the plaintiffs and the Commonwealth have tended to do is to approach the entire resolution of the issue concerning what emerges from the Commonwealth Constitution from the standpoint that there is in the Constitution this implied doctrine of representative government or democracy and then to see all of the constitutional provisions in that light.

Our submission is that one should start from a different point and should start from the point of addressing the express and necessarily implied from the textural point of view provisions of the Constitution which deal with the question of electoral participation, and to view the implied doctrine of representative government in that sense, and so through that looking glass, as it were, to examine the question of whether electoral equality can be distilled from the Commonwealth Constitution .

Now, the difference in approach can be seen to have quite different consequences, because the Commonwealth, for example, while recognising many provisions of the Constitution which are plainly inconsistent with an overall abiding notion of equality, puts them to one side on the basis that they are part of Federation. They are the things necessary, the compromises, the Commonwealth might say - although those are my words - those were the things necessary to achieve the coming together which constituted the Federation.

So, by that route, the Commonwealth tends to try and characterise these considerations, these express provisions, not as things which deny the implication of electoral equality, but as things which stand apart from that whole question itself. Now, in our submission, there is no foundation in the Constitution for treating those provisions separately, and without taking your Honours to them, can I just mention them. I do not think anyone has addressed them orally, but they are summarised in our submissions at paragraphs 28 to 35 and perhaps, more succinctly, and with one additional point in paragraph 21 of the Commonwealth’s submissions, and they are briefly the questions of the position of the Senate and the States, the entrenchment of a minimum of five representatives in the House of Representatives from each State, which is a continuing advantage to Tasmania, and other similar provisions.

So our submission is that you cannot put them to one side and explain them merely as things which were necessary in order to achieve Federation, because they are themselves integral features of the system of representative government which was thought fit for this country. In a similar way, even if the Commonwealth’s submission was right, one could make the point that adjustments of that kind - and we would say the Western Australian adjustment in the form of the electoral laws is one - are necessary in order to achieve a coming together of people where there are very wide differences in the communities of interest.

For example, in Western Australia the difference between city and rural people is exacerbated by the enormous distances that separate them. It is not, we would say, a difference of the same order as might exist in other countries or, indeed, in other States, and while we do not go far as to say that without provisions of the kind we have in Western Australia now there would not be a unified State. Nevertheless one must recognise in democracy the necessity for its origin and its continuation, the notion that different groups may need a measure of protection - if that is the right expression - a different reflection of their role and their vulnerability to the will of the majority. As I say, even if the Commonwealth is right, our submission would be that the recognition of factors which are necessary or departures from what might be thought to be a pure case of representative government are necessary in order to maintain a democracy in a particular society.

To return to our primary submission which is that the correct approach is to examine the terms of the Constitution, we say that the Freedom of Communication Cases upon which so much reliance is placed by our opponents do not, at all, warrant the conclusion that that approach is wrong. While the Court distilled in those four cases the implication of representative government or representative democracy from the provisions of the Constitution, the particular issues under consideration there, the reach of freedom of communication, did not themselves require a detailed examination of the provisions of the Constitution for the simple reason that the Constitution did not deal directly with them. In saying that I recognise that I think your Honour Justice McHugh placed a little more emphasis on sections 7 and 24 in the resolution of those cases than and other members of the Court might have directly.

It is necessary to recognise that there was a different issue in each of those cases and having recognised the doctrine of representative government, the Court was able to move beyond the express terms of the Constitution to examine its implications very speedily. We say that does not involve a new approach to constitutional law, one which would justify the approach adopted by the plaintiffs or the Commonwealth here, but was simply the result of the nature of the issue in that case.

Identifying the correct approach also has obvious implications for the question of whether McKinlay should be reviewed and whether it was correct. If you take the standpoint of the plaintiffs and the Commonwealth that the doctrine of implied representative government or democracy is a relatively recent discovery which affects the whole of the Constitution, then it is possible, as they seek to do, to cast McKinlay in an historical light which might justify its review. Our submission is that McKinlay did no more than apply what we have endeavoured to show was the correct approach. The question of the implication of representative government was very squarely argued in McKinlay without taking your Honours directly to the report. The first relator supported by South Australia and Western Australia supported by Victoria all advocated the existence of such an implication. It was expressly recognised by at least three Justices - Justices Stephen, Mason, as his Honour then was, and Murphy. Justice Gibbs addressed it but found it not necessary in the course of his Honour’s reasoning to reach the result. The point about McKinlay is that no Judge denied the implication and no Judge really ignored it. Each adopted an approach to the resolution of the issue which did not really require that doctrine to loom as a step in the reasoning.

TOOHEY J: Mr Zelestis, what is the starting point for this inquiry? Does it lie somewhere in the Commonwealth Constitution or in some principle of representative government that exists outside the Constitution?

MR ZELESTIS: In our submission, the starting point really is the Constitution and the principal provisions of sections 7 and 24, and one is examining the Constitution from the point of view of ascertaining what it says about the electoral process; the participation of the people in the electing of the representatives who will constitute government in the broader sense.

TOOHEY J: What role, if any, does the notion of representative government have on that approach?

MR ZELESTIS: In our submission, it does not play much, if any, role, because the particular aspect of representative government with which we are concerned here is addressed directly, we would say, by various provisions which manifest an overall intention not to adopt a principle of equality. If that be right, then the fact that one can distil from the Constitution still a representative government or representative democracy principle, does not overcome what are the implications drawn from the text itself.

TOOHEY J: I do not want to take you too far ahead in your argument, but does that approach apply also to the Constitution Act?

MR ZELESTIS: In our submission, it does.

TOOHEY J: I am not asking you to enlarge on that, but just to understand where the argument is going.

MR ZELESTIS: Yes, because our submission leads really to the conclusion that McKinlay was right and that the words, “directly chosen by the people” do not themselves import any notion of equality and that other provisions which I have not mentioned explicitly, but which are mentioned in the paragraphs of the submissions to which I have referred, are inconsistent with an implication of equality. So, in our submission, this is a case not really about representative democracy but about what the Constitution says about participation in the electoral process.

As I say, much turns upon the particular route that you take to the resolution of the problem. It is necessary, briefly, to look at the position if, contrary to our submissions, the Commonwealth and the plaintiffs’ approach was right and you were able to set to one side on the basis of the Commonwealth’s explanation that they are ingredients of Federation; the provisions which we say are inconsistent with equality and look at what is left and what is put against us as left is a notion of equality which is said to be central to the very conception of representative government.

We dispute that and we would draw attention to some features of the process of representative government which we say admit of the kind of arrangements which exist in Western Australia. The first step in the process of representative government is that the citizens elect representatives, and what that really involves is that they elect representatives who will together comprise the government in the broader sense of legislative and executive, the government of the community, the State in this case. The electors require access to their representatives and they require the ability to have their representatives pursue interests in the sphere of government, or in the course of government.

To elevate the starting point of the process, that is, the right to elect, to the position where it diminishes the effectiveness of other elements with respect, in our submission, is to do something for which there is no inherent or necessarily implicit foundation in the very doctrine itself. At the end of the day, the system of government must have what some commentators call the perception of legitimacy. In other words, the community, as a whole, must regard the process as legitimate.

We say recognition of that factor counterbalances this notion that equality is the dominant factors. One cannot deny that equality is a factor, and we do not endeavour to deny that, but what we do put is that the concept of representative government is a much more flexible and subtle one than the plaintiffs and the Commonwealth would have and does not involve a simple notion of one vote, one value so that all electorates are practically the same size. Our submission simply is that Justice Stephen in McKinlay expressed the concept as it is embodied in the Commonwealth Constitution correctly.

Now, judged from the point of view its object, the Western Australian legislation, in our submission, cannot be said to exceed the bounds of a doctrine of representative government. The plaintiffs have tended to place emphasis upon the extent to which, when viewed from the point of view of individual electors, there is what they would describe as disparity or imbalance, and we have heard numbers as high as a 414 per cent imbalance.

We suggest that a better way to judge, or at least view the system, is from the point of view of a different statistic, and that is the statistic which compares the relative percentages of country and metropolitan voters with the members returned, and those figures are provided in the plaintiffs’ submissions at paragraphs 1 point 4 and 1 point 13.

Beginning on page 2 of the plaintiffs’ submissions, one sees that at the time of the relevant legislation, some 670,000 metropolitan voters elected 34 members. That is 74 per cent of voters elected 60 per cent of members in the lower House, and 240,000‑odd non‑metropolitan elected 23 members; that is 26 per cent elected 40. So one sees there the way in which the legislation achieves its object of providing a larger voice, if you like, to the non‑metropolitan people. The disparity is not seen to be as great as when viewed from the point of view of individuals. We say this is appropriate, as I said, because this is looking at what the legislation is seeking to do. With respect to the council at page 4, 74 per cent of the metropolitan electors elect 50 per cent of the members and the remaining 26 per cent of non‑metropolitan electors elect 50 per cent.

So, viewed from that standpoint, and bearing in mind the need for a perception of legitimacy, the factors which must provide a cohesion to a democracy to enable it to maintain its existence, our submission is that even on the outer limits of the expression “chosen by the people” as enunciated in McKinlay, this legislation is valid and survives.

Your Honours, I think those are all the oral submissions that I wish to address. Before my learned friend Ms Wheeler follows, may I respectfully seek leave to withdraw at a later stage if it becomes necessary.

BRENNAN CJ: Yes, Mr Zelestis. Yes, Ms Wheeler.

MS WHEELER: May it please your Honours. The way in which I was proposing to address the remainder of the submissions is this: the bulk of the submission deals with the notion of what it is that representative democracy requires if one puts aside, as we say one should not, McKinlay’s Case and its finding that whatever the Constitution requires, it is not equality of electorates.

However, first I want to mention the indications which we see which suggest that any implication of representative democracy in the Commonwealth Constitution does not extend or, as it has been suggested, trickle down to the States. Then I want to deal with that concept of representative democracy and what it entails, refer to the effect of the Western Australian Constitution and then deal with the issues of jurisdiction and severability. To the extent that there are other issues, they are addressed in our written submissions and I would not at the moment propose to add anything to what is in those.

So, turning first to the question of the extension of representative democracy, the principle found in the Constitution, to the States that, in our submission, is a very odd step to take in the light of the Constitution itself. We say it for these reasons: firstly, in part F of our submission at paragraphs 36 through to 43 - and I do not think, your Honours, they will be read from them at the moment - we trace the existing State electoral laws at the time of Federation. They had numerous diverse restrictions and qualifications of race, of gender, of property, of education, and it is difficult to see by contemporary standards that they contain anything or that they are anything that we would now regard as being democratic. Indeed, there was debate at the time as to the merit of some of them.

In some cases there were no electors at all. The Upper House of New South Wales was, of course, entirely a nominee House and continued so for some considerable time. Paragraph 45 of our submissions notes if equality of electorates be a requirement of representative democracy, which we would dispute, that ratios of two or three to one were common among the States at the time of Federation while in Western Australia in 1897 the Legislative Assembly had a ratio of 38:1 so that the largest electorate contained 38 times the number of the smallest electorates, and it was upon those provisions, we say, that the Commonwealth Constitution was founded in the sense that it accepted, we say, and built upon them and we say so for these reasons - - -

BRENNAN CJ: Ms Wheeler, before you proceed, have you a copy of the Constitution Acts Amendment Act 1899 as it stood at that time?

MS WHEELER: It is somewhere in the defendant’s materials, your Honour.

BRENNAN CJ: Yes, I think it might be tab 9.

MS WHEELER: Tab 9 is the Constitution Acts Amendment Act 1899. Yes, the original provision, your Honour.

BRENNAN CJ: This is the 1899 Act,. is it?

MS WHEELER: Yes, that is the Constitution Acts Amendment Act 1899. There is the Constitution Act of 1899.

BRENNAN CJ: Yes, thank you.

MS WHEELER: The statistic, the 38 to 1, is found in the case stated book in the tables to be found in that book and your Honours will be aware that in relation to that in Western Australia the Constitution Act originally and the Constitution Acts Amendment Act later contained the electoral zones and then later they were hived off to separate Electoral Distribution Acts and the history of the legislation is to be found summarised broadly in part I of our submissions, but I want to go to that a little later on, if I may.

Your Honours, we say that it was upon a restricted and in some cases a very restricted or non‑existent franchise and upon a substantial inequality in electoral size that the Constitution was founded, that it positively recognised and accepted them for these reasons, among others. Section 8 and section 30, of course, adopted the franchise qualifications as they were in the States, in the lower Houses of the States, initially as the qualifications of electors of the Senate and the House of Representatives. Section 25 recognised the existing racial discrimination in qualifications. The fourth paragraph of section 128 recognised that adult suffrage was not the norm. Section 41, the transitional provision, of course, recognised that qualifications differed.

Not only that, section 15 provided that the State parliaments would fill casual vacancies in the Senate. Section 9 allowed the State parliaments to enact laws providing the method of choosing senators, that was until, of course, the Parliament of the Commonwealth made provision if it so wished. So, for example, it followed that the unelected Upper House of New South Wales had constitutionally a role where vacancies arose in choosing senators. The only point we make from all of that, of course, is that we submit that the text of the Constitution itself then, read against that background, reveals an acknowledgement and an acceptance of the very wide variety of State practices, some of which, as in the case of the nominee upper House, it is difficult to see as being democratic, even by the standards of the day.

So we submit that to the extent that to extend an implication of representative democracy to the States runs counter to those textual indications that the Constitution was taking, those State institutions, very much as they were, whatever they might have been. We note, of course, that it was not necessary then for the Commonwealth Parliament itself to shake free of those, if they be undemocratic, undemocratic ties by reforming them, Parliament had, apart from section 15, power to otherwise provide the franchise and to choose for itself a franchise if it wished.

A little more remotely, perhaps, the Constitution was intended to be, and it was, an Act of the United Kingdom Parliament. Now, it is a matter of historical fact and we refer in our submissions at paragraph 46 that the Parliament and government of the United Kingdom, which was thought likely to continue to have a particular role in the affairs of the Commonwealth, was a Parliament which, by the standards of franchise and, if it be relevant again, electoral inequality, largely to be regarded as less democratic than the system which prevailed at the time in most of the States.

We have referred in paragraph 46 to the powers of the unelected House of Lords which, of course, were not restricted until 1911, to the restrictions on the franchise again and to the size of the electorates. So, that if the Commonwealth governmental system was capable of being seen as one embodying representative democracy, despite its creation by, and its, at the time, formal subordination to a less democratic body, then, in our submission, it is difficult to see why the creation of the Commonwealth should have entailed any transformation of the polities which, in a sense, were subordinate to it.

DAWSON J: That is not really the argument that is put against you, is i?. The argument that is put against you is, that is all right, but between that time and now the words “directly chosen by the people” have acquired a new meaning and they were words which were capable of altering their meaning with the passage of time, and they have - that is the argument.

MS WHEELER: Yes, I want to come to that in a little while if I may, your Honour. This is dealing in a sense perhaps with the section 106 and the creation of the new polity point and simply making the point that if there was no trickle-up effect, it is difficult to see why there should necessarily have been the trickle down. Of course in paragraph 44 in our submissions we have cited some authority dealing with the relevance of the historical context in interpreting the constitutional provisions; I do not think I need to go to that either at the moment.

If I can return to the text of the Constitution, those restrictions which were expressed in the constitutional text and which were in the nature of citizens rights broadly described, sections 80 and 116, of course, were directed to the Commonwealth only. The other express restrictions were directed either to the Commonwealth or to the States, but clearly dealing with division of powers between them - the prohibition on preference for the Commonwealth and the prohibition on the State coining money and so on - but those two, which appear to be the ones concerned with individuals and their rights, were directed only to the Commonwealth, and that suggests, in our submission, that the creation of the new improved entity in the form of the Commonwealth did not necessarily require, from the point of view of the rights of individuals, citizens, new and improved States.

Section 106 we would see as entirely irrelevant to this exercise. It provides that the State Constitutions are subject to the Commonwealth Constitution, but still, in our submission, that does not answer the question of what it is that the Commonwealth Constitution requires; that is always the anterior question. Once one works out what the implication is, then section 106 effects the necessary alteration in the Constitution of the State. The anterior question is whether the Commonwealth Constitution requires anything in relation to the State Constitutions, and of course, it is not the case that every implication that is drawn from the Commonwealth ,Constitution and which applies to the Commonwealth applies to the States and separation of powers is perhaps a most obvious example of that. So that we would see any emphasis on section 106 in that sense as misplaced.

Now, as to the words “directly chosen by the people” in sections 7 and 24 in relation to your Honour Justice Dawson, the question of their meaning and implication, so far as the concept of representative democracy is concerned, I want to come back to, but just in relation to the States, they are, of course, provisions dealing in their terms with the election choosing of Senators and Members of the House of Representatives, both matters pertaining clearly only to the Commonwealth. So we would see nothing flowing from them regardless of what the content of the expression “chosen by the people” may have been at the time or now. Nothing flowing from them that requires any implication in respect of the States as distinct from in respect of the Commonwealth.

Can I return to the assumption made for the purpose of this argument that the implication of representative democracy does flow through to the States or that there is otherwise, perhaps stemming from the State Constitution, an implication of representative democracy at State level, and can I examine what is said about what flows from that in relation to the content of representative democracy?

I wanted to go first to examine what the submissions of the Commonwealth have to say about that matter and I want to do that because it appears, in our submission, that the plaintiffs leave out a step which the Commonwealth submissions make more explicit. In paragraph 1 of those submissions, the proposition is put - that is, the Commonwealth submissions - that:

Electoral equality of individual voters is by definition a part of representative government.

So the expression there chosen is “electoral equality” and then at paragraph 13, that is developed as:

A principle of electoral equality (i.e. a principle of “one vote/one value”) -

as if they were synonymous. Now, can I make as my first submission in relation to that that electoral equality is a persuasive phrase, but the difficulty is that it is, in our submission, an expression capable of referring to an enormous variety of concepts each of which can be said to be part of representative democracy, or of some types of representative democracy, and some of which are inconsistent with each other and require to be balanced against each other in forming a particular type of representative democracy.

The heart of our submission is that the notion of what we call, compendiously, representative democracy is a complex series of compromises between a number of very important values, that each of those values is entitled to be respected and that the precise way in which they are balanced is at the heart of the changing political process. Our submission is that what the plaintiffs seek to have your Honours do is to pick one and, in our submission, not a terribly important one, of the criteria that may go to make up representative democracy and to elevate it above the rest, that is, to take a particular brand of representative democracy and fix it for all time in the Constitution .

DAWSON J: Can I just stop you for a moment and ask you this: does the one vote one value slogan have any meaning except in a party system of government? What I have in mind is this: within a particular electorate, whatever its size, each person’s vote counts for the same - you pit your vote against another person’s vote, and within that electorate they have the same value. Is the meaning of the phrase - or does it only have meaning when by having a number of smaller electorates you may arrive at a result where less than 50 per cent is able to put a particular party in power?

MS WHEELER: I have not considered what meaning it may have outside a party system. What your Honour has raised illustrates another aspect of our submission which is that we would say that the slogan, “one vote one value” embodies an assumption about the way that electorates work within a party system and that that assumption is not even, in our submission, necessarily always true.

DAWSON J: Of course, that follows. If what I said was right, and I am not at all sure that it is, if in the smaller electorates the party adherents or those.....were equally divided, you would still have, one vote one value.

MS WHEELER: Yes.

DAWSON J: I may be wrong.

MS WHEELER: Our difficulty with, one vote one value, all together is that it is an expression of indeterminate meaning and that may be one of the meanings that it has. It also has this notion that as between electorates there should be an equality of size because there is an assumption about what that does to the composition of any resulting Parliament and, in our submission, that is an assumption that has a number of difficulties. I will come to those in just a moment.

BRENNAN CJ: If you look at the phrase “chosen by the people” and you look at that as the reposing of the totality of electoral power in the people, is there anything in that phrase to suggest that those who are the repositories of the voting power should have it unequally?

MS WHEELER: No, your Honour. What it suggests, in our submission, whether one uses that expression or representative democracy, is that there should be a real and effective choice by the people of their representatives and, to that extent, we would not depart far from the submissions made by my learned friend, the Solicitor‑General for New South Wales, that it probably refers to the dual process of choosing one’s local member and of determining the composition of a Parliament and, through the Parliament of the government and that there should be a practical, an equal, an effective, a full, all of those things, choice.

BRENNAN CJ: Put it to the test. Say there was a single State electorate and the Parliament was to consist of 60 members. Would there be anything, if that phrase is the governing phrase, to suggest that those who have the franchise should not have equal voting power in selecting the 60?

MS WHEELER: No, your Honour, there would not be anything to suggest that they should not have equal voting power within the expression itself.

DAWSON J: When you take a single electorate, and that is a single electorate of course, but if you divide it up into a number of electorates, what each voter is doing is casting his vote for a particular person and, as it were, in the electorate they are pitting one against the other and in the electorate, whatever the size, they have equal voting power. It is the end result of the number when you count up the number of representatives who are elected that it may matter because they may or may not belong to a particular party.

MS WHEELER: Yes, that is certainly a submission that we would make, your Honour. In relation to your Honour the Chief Justice’s question - it is possibly anticipating a submission that I was going to develop in a moment - is that while there is nothing in that expression to prevent equality of - I cannot remember your Honour’s exact words, “the equality of voting power”, I think was the expression, neither when one is dealing with a system of multiple electorates each returning members to a Parliament is there anything to require that the electorates be identical in size. Indeed, in our submission, equality of voting power in any practical and effective sense may sometimes require a departure.

BRENNAN CJ: Unless one starts from the phrase itself, constitutional phrase, finds there the necessity for the equality of voting power and thereby limits the powers of the Parliament or of electoral commissioners so to distribute electorates as to affect that equality.

MS WHEELER: Your Honour, we submit that that is precisely the implication that one does not find in those words and one does not find it for the reason that the expression is “chosen by the people” and one always has to go back to the question of what does it mean for the people to make a choice and how, in all of the circumstances - and we have attempted to demonstrate in our submissions very briefly the variety of circumstances that can have an effect upon a choice but how, in all of the circumstances of a particular case it is that a choice is an effective choice, a real choice. So, that, in our submission, equality of electoral size is not necessarily a component of a choice by the people within the meaning of the constitutional phrase, and that is what one always has to come back to, in our submission. And, loosely, I am using the expression “representative democracy” as a synonym for that expression. It may be a much wider expression.

If I could turn for a moment to look at what may be and what sort of notions of what could broadly be described as a quality might be involved in representative democracy. I want to develop those briefly, and try and suggest why they are part of representative democracy and, in passing, how the Western Australian system gives effect to those values. Your Honours, some of it is going to sound familiar because I think most of the notions that I am attempting to express have fallen from one or the other of your Honours at some stage over the last couple of days, but if I can just try and put them altogether for a moment and to put our picture as clearly as I can.

The first possible equality which may be necessary to represent a democracy is the one that your Honour Justice Dawson has just been discussing. That is, within an electorate my vote is as important as that of my neighbour in choosing the local member. We each have an equal say in who that member will be. Now, that, of course, is important to representative democracy for a number of reasons, but, primarily, because the member, once elected, represents all of the people within the electorate and it is, therefore, necessary that he or she be responsive to the views of all those who are electors. And if one person has a greatly enhanced or diminished vote that does not necessarily follow.

I do not want to spend time on this because there is no question that the existing Western Australian system tries to provide that equality. That is one of the reasons, in our submission, for the prohibition on multiple voting that one finds in the Constitution, by the way, the requirement that each elector shall vote only once refers to the position as it was in some States at Federation, and as it was in local government in Western Australia until quite recently, where one was an elector, not only because of residence qualification, but because of a property qualification also. So that either within an electorate sometimes on the basis of different properties or certainly within different electorates one individual could vote a number of times.

That had two vices. One was within the electorate it could give rise to the inequality of voting value that my vote was not as important as my neighbours, and also when one goes to the composition of the resulting Parliament the individual with property throughout the State would have a say in the selection of more than one member and so an influence in that way. And that is very different from what flows from unequally sized electorates, in my submission, and one does not draw any implications from that prohibition.

DAWSON J: So that when those who complain about the lack of one vote, one value, when you find what the real meaning is, they are really complaining of a sort of numerical gerrymander.

MS WHEELER: Yes, can I take a moment to deal with the question of gerrymander because there have been different individual definitions.

DAWSON J: Yes, but I do not mean geographical gerrymander, I mean numerical.

MS WHEELER: Yes, gerrymander in the sense in which we would understand it is the distribution of or the drawing of electoral boundaries for the purpose of party advantage and for no other reason.

DAWSON J: For the purpose of the ultimate outcome, the total outcome.

MS WHEELER: Yes.

McHUGH J: Yes, but your submissions in paragraph 107, if you do not mind me saying so, come dangerously close to admitting that there is a gerrymander for party political purposes.

MS WHEELER: Well, that is why I added the words “and for no other reason”, because ‑ ‑ ‑

McHUGH J: You say:

The effective weighting given to votes in rural areas, where coalition parties’ support is concentrated, increases the extent to which the number of seats which political parties gain in the Legislative Assembly reflects their level of support

MS WHEELER: Yes, it translates votes throughout the State into seats in the Parliament in a way that ensures that the seats in Parliament more closely reflect the overall proportion of the vote than would otherwise be the case. That is what it does, and in our submission, one does not like to use the expression “gerrymander” again because people keep shifting the meaning of it, but there is a natural distribution of support for political parties within most States of Australia. The difficulty with that in drawing electorates when one comes to the next matter that I was going to look at, which is the ability of voters throughout the State of a political persuasion to choose a government, is that unless you draw some very strange electorates, you run the risk of having the minority or majority of voters, it could be either way, consistently not electing the government and that can be a real difficulty.

McHUGH J: But is it consistent with representative democracy that electoral boundaries should be drawn to ensure that one or other political party should get a certain number of seats. I mean, that is the problem, is it not?

MS WHEELER: In our submission, it is not the problem. There are a number of answers to that. There are a number of stages. First, any electoral distribution always has a political outcome and any electoral system always has a political outcome and, in my respectful submission, so long as one does not disregard other considerations, so long as the aim is not party political advantage and no other, it is a consideration which is always going to be taken into account and is always relevant.

If one looks at the controversy over compulsory voting, for example, there are those, on this question of equality of votes within an electorate, who say that the apathetic and the uninformed should not be required to vote because that dilutes the votes of those who really do care and really do want to vote.

There are arguments of principle on either side, but whether one adheres to one side or the other sometimes depends perhaps on the way in which one perceives the result for party political purposes. But it is not to say that there are not legitimate arguments on either side. So, when one is looking at the drawing of boundaries to counteract what might otherwise be - I withdraw that. I need to step back a stage. It is not suggested, in our submissions, that this was the object of the drawing of the Western Australian boundaries. They had been drawn like that for a very long time. But if boundaries have the effect of counteracting natural distributions, natural concentrations of support so that they ensure that the majority of electors by and large do elect the majority of members of the Parliament, that, in our submission, can hardly be an outcome inconsistent with representative democracy. It may benefit the party who would otherwise gain the majority of seats but lose the election, but that is not undemocratic either, in our submission.

If I can come to the next of the factors, because it is the one that probably underlies most of the plaintiffs’ submissions, in our respectful submission. That is a type of equality within the concept of representative democracy or choice by the people is that within the State voters of a particular persuasion have an ability equal to that of other voters of determining the composition of the legislature and determining the government.

BRENNAN CJ: I am sorry, I did not hear the first part.

MS WHEELER: I was going to go on and restate it more simply, your Honour. It is probably easier if I simply submit that really the crux of this is the requirement that the proportion of the parties within the Parliament should reflect the degree of support that each party has within the community. That in a party political system is, in my submission, a very important component of what we understand is choice by the people. So that the majority of electors choose the majority of members to form the government.

McHUGH J: But this introduces a totally new dimension into the Constitution, does it? You are now talking about political parties and that you should reflect the interests of political parties. What about the new political parties; where do they get looked after?

MS WHEELER: They get in in a couple of ways, your Honour. They actually fare better under systems of proportional representation or larger electorates or multi‑member electorates.

McHUGH J: They certainly do.

MS WHEELER: That is why within representative democracy, in our submission, that is part of the spectrum that one can have. The reason that I make submissions which are in the end pure political theory is because, in our submission, that is precisely what is put against us - pure political theory with certain factual assumptions underlying it. There is no way of getting away from that once one starts dealing with this requirement of representative democracy.

Alternatively, if one goes back even to the concept of “chosen by the people”, it has to be a choice by the people within the factual circumstances as they actually are at the time, and the submission we make about political parties is that for a considerable time political parties have been a necessary part of the political system.

McHUGH J:I am not sure that everyone would agree with that these days.

MS WHEELER: They would certainly agree with the submission that they have been part of the political system; there is a degree of discontent with that fact, but so long as one has them then, in our submission, it is important that people who vote for them know that if the majority of people do vote for a particular party, that party and not someone else will be chosen to form the majority of members and therefore the government.

And indeed, in my submission, your Honour, the way in which one vote, one value works in political party terms, and the assumption about that, that probably underlies most of the plaintiffs’ submission and most of the plaintiffs’ complaint at the present time, that sort of equality, that translating votes into seats equality, is, as I have submitted, probably best achieved with some sort of State wide proportional system, but despite the fact that single member electorates do not work terribly well at translating votes into seats, they are nevertheless, in my submission - or are capable of being seen as an important part of the system of representative democracy as we historically have it in Australia, so that one has to take the assumption that one works with them.

McHUGH J:How does this weighting work out in practice? Did the political parties seats tend to represent their percentage of voting over the whole electorate?

MS WHEELER: There have only been two elections held on the present weighting and the figures for those are contained in the defendant’s submissions at paragraphs 102 and 103, pages 55 and 56. What those paragraphs do is, in the first set of tables set out in paragraph 102 page 55, set out the results of the elections in 1989 and 1993 for both Houses under the existing system and it refers to the percentage of valid votes and the percentage of seats obtained, and if your Honours are going to those now, there are a couple of comments that I would like to make briefly about them.

BRENNAN CJ: Is this first past the post or preferential?

MS WHEELER: Preferential, your Honour, and multi‑member electorates, small ones - three and upwards - for the Legislative Council and single‑member electorates for the Legislative Assembly.

BRENNAN CJ: Am I right in thinking that the first series of figures on page 55 is the primary votes cast, whereas the third set of figures is the result of the preferential allocation?

MS WHEELER: No, your Honour. The first set of figures - the very first line - is the preferential allocation ‑ ‑ ‑

BRENNAN CJ: That can hardly be so.

MS WHEELER: Yes, sorry, it was the first votes cast. Your Honour is perfectly right. The last two lines - percentage of seats obtained - is the number of seats but expressed as a percentage of seats available obtained by candidates belonging to that party. That is perhaps an odd way of expressing it because, for example, when one goes to the green candidate, that person was expressed as getting 2.94 per cent of the seat. In fact, that is only one seat.

BRENNAN CJ: That is a rather confusing set of figures if you take one set as being the primary votes cast and the second the result of the allocation of preferences.

MS WHEELER: The seats obtained, yes. I just need to check that that is in fact the way the ‑ ‑ ‑

BRENNAN CJ: Have you any which indicate the percentage of votes on the preferential basis?

MS WHEELER: Can I just check, your Honour, that that is in fact the way that the table has been compiled. My recollection is that it was the percentage of first preferences, but that may not be right. In any event, can I mention also, before I come back to this table, the table at page 56 of the book which is a table demonstrating the way in which those votes cast would have translated into seats in the Parliament if a Statewide proportional representation system had been in use. One finds, as one would expect, that with a Statewide proportional representation system some parties would have fared better and some would have fared worse because of the fact that concentrations of support differ.

Coming back to the question your Honour the Chief Justice asked, the figures in table 102, the first line, are in fact the primary vote.

GUMMOW J: Paragraph 103 suggests that, does it not?

MS WHEELER: Yes. There are a number of reasons why there is not an exact correlation between the results that obtained at the election and the results that would have obtained under proportional representation, which is the best votes into seats translation that one can think of. They are firstly the favouritism to major parties of any type which is inherent in the system of regions and single‑member electorates, but there are also a couple of other factors that need simply to be mentioned. The first is that your Honours will notice that at the 1989 election the percentage of first preference votes for the party which in the end formed the government - that was the Australian Labor Party - was 41 per cent. The reason that party was able to form the government despite the minority of the first preference votes was in part that the geographical concentration of support for the parties is different.

If I can just illustrate it in this way, and I think it follows in any event from my discussion with your Honour Justice McHugh. For example, if one has three seats of 10,000 members apiece and one party has all 10,000 voters in one electorate and 4,999 in the others, then that party will not gain the majority of the seats despite having the support of almost 20,000 out of the 30,000 electors, and that is because of the way in which the electors for the particular parties are distributed.

The maps in the defendant’s book of maps - and I do not need to take your Honours to them, but they are at tabs 13 to 16 - demonstrate that in Western Australia the Liberal and National Parties are the parties that the supporters of which are not spread terribly evenly throughout the State, that is, those are the parties that consistently gain seats with 65 per cent and upwards of the vote. That seems to be the case in other States also. The defendant’s submissions refer at paragraph 108 to the South Australian position and it can be noted also that the most recent elections in Queensland saw a government formed despite a minority of the vote overall and in the federal sphere at paragraph 104 of the submissions the defendants note the results of the 1990 federal election where, again, the party obtaining just short of the majority of the two-party preferred vote nevertheless won a majority of the seats.

All that follows from that is that one does not expect a perfect translation of votes into seats in a single‑member system and in relation to the Western Australian figures goes some way to explaining the difference between the tables in 102 and 103. The other thing that I perhaps need to note, simply to assist your Honours to understand those tables, is that in relation to the National Party, that is a party which did not contest all of the seats throughout the State while the smaller parties contested a greater proportion, so that although the small parties, the small parties other than the National Party, look as though they have got the same percentage of the vote in broad terms, it is a percentage not out of a 100, but of a smaller number with that smaller potential percentage in the case of the National Party.

With all those qualifications and conditions to allow for the way the system actually works in practice, when one compares the percentage of first preference votes with the percentage of seats obtained, and when one compares the percentage of seats obtained with the way in which the system would have worked naturally, as one expects, favouring smaller parties thinly spread throughout the State in a proportional system, in my submission, the conclusion is that the votes into seats translation in Western Australia is, while by no means perfect, no worse than in any of the other Australian electorates in which ‑ ‑ ‑

McHUGH J: I am not sure that is correct about the Legislative Council. When the Liberal Party gets a lesser percentage of seats than it does votes in 1993, the Labor Party gets perhaps 20 per cent more seats than it does votes, the National Party more than doubles.

MS WHEELER: That is a function of the concentration of support in relation to the National Party. It works against it overall, but as compared to the other parties, one finds that the other small parties either do not translate their votes into seats at all, or have much more difficulty with the National Party. It works the other way. Of course, the other thing about the National Party is that the National and Liberal Parties do not invariably stand candidates against each other. So one can aggregate them to some degree. I think the answer to your Honour’s question then is that one cannot arrive at a perfect estimation in any event.

McHUGH J: The National Party seems to be way out in front, the ALP running second and others further behind.

MS WHEELER: The National Party certainly did better than the others, your Honour, but again that is a percentage of seats. It needs to emphasised also that one is talking about 8.82 per cent of the seats which sounds impressive, but it is, in fact, three seats. It might have been helpful to have put the raw numbers of seats down as well, to avoid that impression. I am sorry, your Honour, the number of elected candidates are there in the middle of the column, yes, three seats.

McHUGH J: Yes, they are in the second row.

MS WHEELER: So that if one performs that exercise they are not so much further ahead. The upshot of all of that, your Honours, is, in my submission, that the results are nothing startling, nothing unusual, nothing particularly distinctive as far as non‑proportional systems go, as far as single member electorates go. That was the second major potential component of representative democracy which might involve notions of equality.

Before I leave it can I also make a general submission about unequal sizes of electorates generally, and the assumption that one would normally make about that because the tables demonstrate the way it happens to work in Western Australian, but one would feel intuitively that disparities in numbers within electorates can be used to distort those results; those translation of votes into seats, so that it would be possible to ensure that a minority of voters of any particular persuasion elected a governing party. That is, in our submission, what underlies a lot of the criticism of unequally weighted electorates.

As to that we simply say, firstly, it may be possible in some situations, but it is also possible to achieve that result with electorates of equal population size, and where there are substantial minority parties one can achieve it in other ways as well, for example, by going to a first past the post system or changing to a multi-member list or any variety of ways. The other thing about that notion that unequally sized electorates can be used so as to improperly tamper with the composition of the Parliament is that depending upon the distribution of population, in our submission, equally sized electorates may make it more difficult for a system of translating proportional votes throughout the State into proportional seats in Parliament to be achieved.

The situation in Western Australia is by no means unique in that respect. Could I just refer your Honours - I do not plan to take your Honours to them - to the defendant’s materials at tab 34 which is an extract from Lijphart Electoral Systems and Party Systems published in 1994, and at page 129 and following Lijphart deals with the extent to which malapportionment, defined as “unequally sized electorates” translates into disproportionality, which is defined as “the result in which the percentage of votes of a particular type doesn’t result in the same percentage of seats.”

At page 129 in relation to the United States system, summarising the tables which are set out elsewhere in that extract, the conclusion is drawn that, if one compares the elections before what is described as the re‑apportionment revolution, that is, pre and post Baker v Carr, other aspects of the system remained unchanged. Once the Supreme Court had taken a role in the United States in ensuring that electorates were of equal size:

Contrary to the hypothesis -

it was found by the authors of this work -

disproportionality did not decrease; instead, it increased rather substantially from 4.25 to 6.22 per cent.

GUMMOW J: Where does the author define disproportionality?

MS WHEELER: The meaning emerges reasonably clearly from the text, but to find where the term is first used will perhaps take me a moment. Can I come back to that?

GUMMOW J: Do not worry about it.

MS WHEELER: Again, in the Australian electoral systems, and that is referring to the federal system, it said further down that page, “malapportionment was reduced” over the period selected. Other things remained very similar, and again, disproportionality increased. Yes, pages 56 and 57, your Honour Justice Gummow, one will find the beginning of the discussion of disproportionality, and disproportionality on page 57 means, “the deviation of parties’ seat shares from their vote shares”, although the author goes on to explain that it is not as easy to measure as one would have thought.

Again, over the page, might I just mention the same author refers to the interaction between distribution of votes and the effect of unequally sized electorates by referring to the United Kingdom, where it said that the Labor Party’s advantage in Scotland and in Wales is counteracted by its disadvantage in relation to the urban areas. Rather a lengthy exposition, your Honours, I am sorry, for a relatively simple proposition, which is that if one is looking at the way in which the composition of the Parliament reflects the composition or thewishes, party political wishes of the electorate under a particular system in Western Australia, the fact of unequally sized electorates to a degree may assist in achieving that result and ‑ ‑ ‑

McHUGH J: Your point is that although these electorates may depart a long way from any principle of one vote, one value, nevertheless the ultimate result is that representation in Parliament basically reflects the voting pattern?

MS WHEELER: Yes, indeed, your Honour, and that is not uncommon with unequally sized electorates, in our submission, depending upon a heap of other factors. Your Honour has hit on what is also part of that submission, which is that one vote, one value, in our submission, is a slogan - that is not to use the expression in a pejorative way - but a slogan that is directed to a means rather than to an end, in my submission. That is, it may be the means of achieving some of these other aspects of representative democracy or choice by the people. It is not itself part of the essence of it, and one should be prepared not to impose it as a requirement when it is not necessary to achieve that end.

BRENNAN CJ: What that means, of course, and I suppose one can see from your maps tabs 13 and following, in other words, there were only, I think, ten seats altogether that acquired more than a 60 per cent majority, otherwise it must be that the voting patterns are within 10 per cent distributed equally throughout the State. What then is the justification for a disparity in the numbers returned by disparate numbers of voters?

MS WHEELER: I am not certain that I appreciate your Honour’s question.

BRENNAN CJ: There are the various categories of areas, metropolitan, et cetera. Throughout them, with the exception of ten seats, we have an equal distribution of those who vote Labor, Liberal or National, et cetera, within 10 per cent. Why then is it appropriate to allocate a greater number of representatives for those in the non‑metropolitan seats than for those in the metropolitan seats?

MS WHEELER: Your Honours, it is not a greater number of representatives allocated to the non‑metropolitan seats. Of course, the seats within the metropolitan area are still the majority of seats. That is the first proposition. The second is that the ‑ ‑ ‑

GUMMOW J: Sorry, could you say that again?

MS WHEELER: The metropolitan seats are still the majority of seats. It is not a rural majority. It is a metropolitan majority, but not the majority that the population, if one took that as the only criterion, would suggest. The second part of the answer to that, your Honour, is that we do not put forward the way in which the votes translate into seats as being the justification of the way in which the boundaries are drawn. Indeed, I was going to come in a moment to two other aspects which, in my submission, do justify and have historically been relied upon as justifying the way in which the boundaries are drawn. However, the drawing of the boundaries in that way, because of the distribution of support for some parties, has had an effect which is that it is easier than it otherwise would have been to have a Parliament which represents the overall party political wishes of the State, but that is merely a matter of effect.

We use that to say two things. Firstly, it has a mildly beneficial affect in that sense in one way and secondly, to counteract what we

apprehend is put against us which is that the drawing of those boundaries is a deliberate way of obtaining an unjustified party political advantage. So that we say there are other important values which justify the drawing of boundaries in the first place, and there is no unjustified party political advantage to be obtained from it, and the discussion in which I have just engaged was directed to that second proposition rather than to the first. Your Honours, I was just going to go to another point.

BRENNAN CJ: Would this be a convenient time?

MS WHEELER: Yes.

BRENNAN CJ: The Court will adjourn until 10.15 tomorrow morning.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 14 SEPTEMBER 1995

[1995] HCATrans 265

Key Legal Topics

Areas of Law

Constitutional Law

Native Title

Statutory Interpretation

Legal Concepts

Standing

Jurisdiction

Statutory Construction

Proportionality