McGinty v Western Australia

[1996] HCA 48

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ

JAMES ANDREW McGINTY AND OTHERS v THE STATE OF WESTERN AUSTRALIA

(1996) 186 CLR 140

20 February 1996

James Andrew McGinty and Ors v The State of Western Australia Constitutional Law—Commonwealth Constitution—s 24—"directly chosen by the people"—constitutional implications—representative government or democracy—equality of voting power—franchise. Constitutional Law—Commonwealth Constitution—s 106—source of State constitutional power—application to States of implied constitutional freedoms. Constitutional Law—Western Australia—electoral system—constitutional implications—representative government or democracy—equality of voting power—manner and form—Constitution Act 1889 (WA) s 73(2)(c)—"chosen directly by the people"—Constitution Acts Amendment Act 1899 (WA) s 6; Electoral Distribution Act 1947 (WA) ss 2A, 6 and 9.

Headnote

Hearing

CANBERRA, 12-14 September 1995
#DATE 20:2:1996



Counsel for the Plaintiffs D.M.J. Bennett QC with P.W. Johnston,
G.J. Lindell and P.G. Laskaris



Solicitors for the Plaintiffs Frichot and Frichot


Counsel for the Defendant C.L. Zelestic QC and C.A. Wheeler QC
with R.M. Mitchell



Solicitor for the Defendant P.A. Panegyres, Crown Solicitor for
the State of Western Australia



Interveners
G. Griffith QC, Solicitor-General for the Commonwealth with J.J. Spigelman QC, S.J.Gageler and C.R.Staker, for the Attorney-General of the Commonwealth, instructed by the Australian Government Solicitor.

K. Mason QC, Solicitor for the State of New South Wales with L.S. Katz, on behalf of the Attorney-General for New South Wales, instructed by the Crown Solicitor for New South Wales.

P.A. Keane QC, Solicitor-General for the State of Queensland with R.W. Campbell, on behalf of the Attorney-General for the State of Queensland, instructed by the Crown Solicitor for Queensland.

D. Graham QC, Solicitor-General for the State of Victoria with S.S.Davis, for the Attorney-General for the State of Victoria, instructed by the Victorian Government Solicitor.

B.M. Selway QC, Solicitor-General for the State of South Australia with G.L.Ebbeck for the Attorney-General for South Australia, instructed by the Crown Solicitor for South Australia.

S.N. Allston on behalf of the Attorney-General for the State of Tasmania, instructed by the Crown Solicitor for Tasmania.

Orders

1 Answer the questions reserved in the case stated as follows:
(i) Is s 6 of the Constitution Acts Amendment Act 1899 (WA) invalid?
Answer: No.
(ii) Are ss 2A(2), 6 and 9 of the Electoral Distribution Act 1947 WA), or any of them, invalid?
Answer: No.
(iii) If any of ss 2A(2), 6 or 9 of the Electoral Distribution Act 1947 (WA) is or are invalid, is it or are they severable and, if so, to what extent?
Answer: Unnecessary to answer.
2 Costs are reserved. Any application for costs to be made in writing and filed and served within seven days; any submission resisting the order applied for to be filed and served within a further seven days and any reply to be filed and served within a further seven days.

Decisions

BRENNAN CJ. The plaintiffs, Messrs McGinty and Gallop, are Members of the Legislative Assembly of Western Australia ("the Assembly"). The plaintiff Mr Halden is a Member of the Legislative Council of that State ("the Council"). They challenge the validity of the laws of Western Australia governing the distribution of electorates for both the Assembly and the Council. The present distribution was effected pursuant to the Constitution Acts Amendment Act 1899 (WA) ("the 1899 Act") and the Electoral Districts Act 1947 (WA) ("the 1947 Act") as amended by the Acts Amendment (Electoral Reform) Act 1987 (WA) ("the 1987 Act"). The 1947 Act was renamed the Electoral Distribution Act(1). The Assembly now consists of 57 members(2) each of whom is returned as a member for an electoral district. The 57 electoral districts(3) are divided between the Metropolitan Area containing 34 electoral districts(4) and the remainder of the State containing 23 electoral districts(5). The districts are established by Electoral Distribution Commissioners who are required to fix the boundaries of the districts in each area so as to comprise an equal quotient of enrolled electors plus or minus 15%(6). The Metropolitan Area is defined(7) as the region that was described at 1 January 1987 in the Third Schedule to the Metropolitan Region Town Planning Scheme Act 1959 (WA) and Rottnest Island.


2. At the time when the 1987 Act was enacted, there were approximately 669,293 voters enrolled in the Metropolitan Area to elect 34 members and 240,081 voters enrolled in the remainder of the State to elect 23 members of the Assembly. The consequence of this apportionment was to confer on a voter in an average metropolitan electoral district power to effect the return of a member of the Assembly that was less, in mathematical terms, than the power conferred on a voter in an average non-metropolitan electoral district. The 15% tolerance from the average quotient and shifts in population since the last distribution have produced some large divergences in the number of voters enrolled for districts in the two areas in the 1993 election. At the 1993 election, the quotient for a metropolitan electorate was 21,988 and Wanneroo, the most populous electorate, had 26,580 enrolled voters. The quotient at the 1993 election for an electorate outside the metropolitan area was 11,702 and Ashburton, the least populous electorate, had only 9,135 enrolled voters. The number of Wanneroo voters was 291% of the number of Ashburton voters.


3. The Legislative Council consists of 34 members returned for six electoral regions(8). The names of these regions and the number of members of the Legislative Council returned by each are as follows(9):
North Metropolitan Region 7 members
South Metropolitan Region 5 members
East Metropolitan Region 5 members
South West Region 7 members
Agricultural Region 5 members
Mining and Pastoral Region 5 members



4. The Electoral Distribution Commissioners are required to divide up the State into these six regions within which there are to be complete and contiguous districts(10). The first three of these regions together form the Metropolitan Area(11). The Mining and Pastoral Region is remote from the capital where the land use is primarily for mining and pastoral purposes(12). The Agricultural Region is generally south, or south and west, of and adjacent to the Mining and Pastoral Region and the South West Region consists of the remainder of the State(13). At the 1993 election, the quotients applicable to the respective Council regions were as follows:
North Metropolitan 34,161
South Metropolitan 33,876
East Metropolitan 32,822
South West 13,721
Agricultural 13,161
Mining and Pastoral 9,097

The number of voters in the quotient for the North Metropolitan Region was 376% of the number of voters in the quotient for the Mining and Pastoral Region.


5. The disparity between the number of enrolled voters in the metropolitan and non-metropolitan districts for the election of members of the Assembly and the disparity between the number of enrolled voters in the several regions for the election of members of the Council provide the factual foundation for the challenge to the validity of the provisions of the 1987 Act which prescribe the current electoral distribution. Those disparities, it is said, are the consequence of the 1987 Act. To an extent, some disparities are mandated by the 1987 Act's division of the State into electoral districts and regions, and increases in the extent of those disparities are authorised by the tolerance on quotients authorised by the 1947 Act.


6. The plaintiffs submit that disparities in voting power are inconsistent with the principle of representative democracy as that principle is understood at the present time. Representative democracy, so the argument runs, requires that

(a) every legally capable adult has the vote; and

(b) each person's vote be equal to the vote of every other person.

Of course, the term "legally capable adult" assumes without defining the scope of the franchise. In this century, the age of legal adulthood has been reduced from 21 to 18 and the legal incapacity of women to vote has been removed. Aborigines, who were once constitutionally disqualified from the franchise, are no longer so disqualified. But age, sex and race are not the only qualifications that have governed an adult's right to vote. Other qualifications have related to ownership of property and education or a period of residence within the electoral district. Disqualifications still include the status of convicted criminal and mental infirmity or absence from registered address. In view of the fact that the franchise has historically expanded in scope, it is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote(14).


7. The qualification of electors is one thing; the voting power of those who are qualified to vote is another. In the Commonwealth Constitution, for example, s 30 was for a time the provision determining the franchise for the election of the House of Representatives. But s 26 prescribed the number of members to be chosen by the respective States and s 29 empowered State Parliaments to make laws for determining electoral divisions within the State.


8. The term "representative democracy" implies that the franchise be so general in its scope and voting power be so distributed among those who have the franchise that those who are elected to govern can fairly be seen to be representatives of the people who are governed. Stephen J said in Attorney-General (Cth) (Ex rel McKinlay) v The Commonwealth(15):

" It is no doubt true that something approaching numerical equality of electors within electorates is an important factor, together with much else, in the attainment of what many will regard as representative democracy in its purest form, just as adult suffrage, free of discrimination on the grounds of race, sex, property or educational qualification will likewise aid in its attainment. But neither of these in absolute form is necessarily imported into the Constitution by the selection of representative democracy as the chosen mode of government for the nation."


9. The plaintiffs submit that both the Commonwealth Constitution and the Western Australian Constitution incorporate representative democracy as the central principle of government. They challenge the proposition, accepted in McKinlay(16), that an equality of voting power among the electors possessing the franchise is not mandated by the Commonwealth Constitution. Western Australia, on the other hand, submits that neither the Commonwealth Constitution nor the Constitution of Western Australia requires equality of voting power. Western Australia points out that an electoral system may give effect to the political will of the overall majority of voters although there be a disparity in voting power as between the voters in some districts or regions and the voters in other districts or regions, that representation of minority groups or adequate representation of geographical districts in the Parliament might be secured only, or more efficiently, by allowing a disparity of voting power(17) and that some disparity may assist in the formation of stable political institutions (both legislative and executive). These points may be well taken, although the argument focuses on the political results that can follow an unequal distribution of voting power rather than on an equality of voting power possessed by each holder of the franchise. The question whether differences in voting power can be justified by distinctions based on political opinion, minority interests or geographical residence does not admit of a definitive answer.


10. However, it is unnecessary and, for reasons presently to be stated, impermissible to determine the validity of the 1987 Act by reference to its consistency with the requirements of a general principle of representative democracy. "Representative democracy" has been used as a shorthand description of the form of government prescribed by the Commonwealth Constitution in order to explain how the freedom to discuss governments and political matters is implied in the Constitution. As "the people" are to choose their elected representatives(18), it has been held that the people must be left free to discuss political and economic matters in order to perform their constitutional functions(19).




Constitutional Implications
11. Implications are not devised by the judiciary; they exist in the text and structure of the Constitution and are revealed or uncovered by judicial exegesis(20). No implication can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure(21). However, as an implication will be applied in a particular case to a specific factual situation, it may be expressed in terms relevant to that situation(22). Although the Court was divided in Australian Capital Television Pty Ltd v The Commonwealth ("ACTV"), there was nothing in any judgment to cast doubt on the approach then taken by Mason CJ(23):

" It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure."

In Nationwide News Pty Ltd v Wills ("Nationwide News")(24) and ACTV the legislative power of the Parliament to enact the respective laws impugned in those cases was in question. In the former case, that question was answered by some Justices without reference to any implication affecting the scope of the legislative power invoked to support the law. But, relevantly for present purposes, an implication relating to freedom of communication, expressed in different terms in the several judgments, was held by some Justices in the former case and by a majority in the latter case to deny validity to the impugned laws. The implication, albeit differently expressed, was drawn from the text and structure of Pts II and III of Ch I of the Constitution and, in particular, from the provisions of ss 7 and 24. These provisions were seen to prescribe a manner of choosing members of the Senate and of the House of Representatives which would have been subverted if the impugned laws had validly imposed the restrictions on communications which they prescribed. In expounding the manner of choosing members of the Senate and House of Representatives and in showing how the impugned legislative restrictions would subvert that manner of choice, the term "representative democracy" or "representative government" was employed.


12. Although the term "representative democracy" is useful to explain the text on which the implied freedom depends, the term is not to be found in either the Constitution of the Commonwealth or the Constitution of Western Australia. It is logically impermissible to treat "representative democracy" as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed. The text of the Constitution can be illuminated by reference to representative democracy but the concept neither alters nor adds to the text. In Victoria v The Commonwealth(25) Windeyer J identified the role of implications in constitutional interpretation:

"Implications of The Moorcock kind give content and consequences to written contracts. Implications of a different kind may aid the interpretation of statutory provisions. That is because these must always be read as parts of a whole and with due regard to the subject with which the statute deals. In each case an implication means that something not expressed is to be understood. But in the one case this involves an addition to what is expressed: in the other it explains, perhaps limits, the effect of what is expressed. It is in the latter sense that, in my view of the matter, implications have a place in the interpretation of the Constitution: and I consider it is the sense that Dixon J intended when in Australian National Airways Pty Ltd v The Commonwealth(26) he said: 'We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications.' ... The only emendation that I would venture is that I would prefer not to say 'making implications', because our avowed task is simply the revealing or uncovering of implications that are already there."

The text, however illuminated by implication in one case, remains to govern decision in the next.


13. The principle of "representative democracy" can be given the status of a constitutional imperative(27), but only in so far as the meaning and content of that principle are implied in the text and structure of the Constitution. The constitutional question for determination in this case cannot be stated as though it asks whether the distribution of electoral districts or of electoral regions is consistent with a general principle of representative democracy - especially if the content of "representative democracy" is derived from sources outside the Constitution. The constitutional question is whether there is inconsistency with the text and structure of the Constitution.


14. Unaffected by context, the phrase "chosen by the people" admits of different meanings. It might connote that candidates are chosen by popular direct election as distinct from election by an electoral college; or it might connote some requirement of equality or near equality of voting power among those who hold the franchise; or it might go further and import some requirement of a franchise that is held generally by all adults or all adult citizens unless there be substantial reasons for excluding them. Equally, these meanings might be attributed to the notion of "representative democracy". In this case we are not concerned with the mode of election: both the Council and the Assembly are elected by popular direct election. Nor are we concerned with the franchise. But the plaintiffs submit that an equality of voting power is implied in the Commonwealth Constitution.


15. Neither Nationwide News nor ACTV required an exhaustive determination of the content of the principle of representative democracy. Nor did the two defamation cases that followed, namely, Theophanous v Herald and Weekly Times Ltd(28) and Stephens v West Australian Newspapers Ltd(29). All of these cases were concerned with the freedom of communication required to allow "the people" to perform their constitutional function of choosing their Parliamentary representatives. None of these cases was concerned with equality of voting power. The principle of representative democracy that was held to be implied in those cases can be no wider than - for it is synonymous with - what inheres in the text of the Constitution or in its structure. A submission that equality of voting power in State as well as in Federal elections is implied in the Constitution is not advanced by an appeal to the principle of representative democracy if reference to the text and structure of the Constitution fails to reveal an implication of that kind. However, if there be such an implication, an inconsistent State law would be invalid.


16. The invalidity would not flow from the operation of s 109: it would not depend on the enactment of an inconsistent law by the Parliament of the Commonwealth. The invalidity would arise because the power of the State Parliament to make (or to sustain) the law was withdrawn by the Constitution of the Commonwealth. The invalidity would arise from want of State legislative power. As the legislative power of a State is conferred by its Constitution and that Constitution is subject to the Commonwealth Constitution, the effect of any implication derived from the Commonwealth Constitution upon a purported law of a State must be ascertained by reference to the limitation placed by the Commonwealth Constitution on State legislative power.

The relationship between the Commonwealth Constitution and the Constitutions of the States
17. Section 106 of the Commonwealth Constitution reads:

" The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State."

This section has a dual operation. Its first operation is to prescribe what the new elements of the Federal polity - the States - shall be. When the people of the Australian Colonies were united in the Commonwealth of Australia by the proclamation made pursuant to Covering Clause 3 and those Colonies became Original States of the Commonwealth by operation of Covering Clause 6, the Colonies - the old constitutional entities - acquired a new constitutional status. They became States, as the text of ss 107 and 108 shows, deriving their existence as States from the Commonwealth Constitution(30). Secondly, s 106 conferred on the respective States substantially the Constitutions of the antecedent Colonies(31). The same Constitutions as had been conferred on the Colonies prior to 1 January 1901 were continued as the Constitutions of the respective States thereafter, subject to such modifications as were effected by the Commonwealth of Australia Constitution Act 1900 (Imp) and the Constitution of the Commonwealth. As Barwick CJ said in New South Wales v The Commonwealth(32):

"On the passage of the Imperial Act, those colonies ceased to be such and became States forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and powers were to continue by virtue of the Constitution of the Commonwealth."


18. Although the States owe their existence to the Commonwealth Constitution and although their respective Constitutions in 1901 were conferred by operation of s 106 of the Commonwealth Constitution, the powers vested in the respective State legislatures were subject not only to the other provisions of the Constitution but also to the limitations which had been imposed on the powers of the antecedent colonial legislatures(33). The Australian Colonies did not retain their colonial status for the purposes of the constitutional law of the Commonwealth, but their general legislative and constituent powers then remained amenable to affection by laws enacted by the United Kingdom Parliament(34). That amenability to affection by Imperial legislation was removed only by the enactment of the Australia Act 1986.


19. In 1901, s 107 of the Constitution confirmed what s 106 might itself have provided, namely, that such power as a State Parliament possessed to alter its own Constitution(35) pursuant to the manner and form provisions of its Constitution and to alter those manner and form provisions themselves(36) remained(37). Thus the "manner and form" provisions of the State Constitutions are retained as they were on 1 January 1901 or as they have been altered subsequently in accordance with any relevant manner and form provisions in force at the time of the alteration. It follows that the Constitution of a State at any time must be ascertained by reference to (i) its Constitution as at Federation; (ii) the overriding effect of the provisions of the Commonwealth of Australia Constitution Act and the Constitution of the Commonwealth; (iii) the modifications of the State Constitution that have been made either by Imperial legislation or State legislation provided, in the case of State legislation, it has been made in accordance with any relevant manner and form provisions of the particular State Constitution(38); and (iv) the Australia Act 1986. It is possible that a law of the Commonwealth could affect the Constitution of a State in some particular but not so as to curtail the continued existence of the State or the capacity of the Government of the State to exercise its functions(39).


20. The Constitutions of the several States are, by force of s 106, subject to the Commonwealth Constitution, the provisions of which may be either expressed in its text or implied in its text and structure. There is no relevant reference in the Commonwealth Constitution to the distribution of the franchise in elections for State Parliaments. But the plaintiffs and the interveners supporting the plaintiffs submit that the Commonwealth Constitution implies a mandatory equality of voting power among the holders of the franchise for State as well as Commonwealth elections. Just as Mason CJ, Toohey and Gaudron JJ held in Stephens(40) that the concept of representative democracy is provided in the Constitution and is the basis of an implication of freedom of communication as to political matters relating to government at State level, so the concept of representative democracy is said to be the basis of an implication of equality of voting power in State elections. To consider this argument it is necessary, for reasons earlier stated, to take as the starting point not the concept of representative democracy but the text of the Commonwealth Constitution.




Equality of voting power: Commonwealth Constitution
21. The provisions of Pt III of Ch I of the Constitution and, in particular, s 24 were considered in McKinlay(41). In that case, the chief question was whether equality of voting power was required in respect of elections for the House of Representatives. The Court answered this question in the negative. Barwick CJ found in the different franchises and electoral systems in force in the Australian colonies at the time of Federation an explanation of the terms of s 24. He said(42):

"(I)n my opinion, the expression 'directly chosen by the people' is merely emphatic of two factors: first, that the election of members should be direct and not indirect as, for example, through an electoral college and, secondly, that it shall be a popular election. It is not an indirect reference to any particular theory of government. Members of the more numerous Houses of the Australian colonies, according to the franchises to which I have referred, were, in my opinion, elected directly by popular election. Within the meaning of the constitutional expression they could properly have been said to have been directly chosen by the people of the colony."

Similarly, Gibbs J thought that the draftsmen of s 24 were "concerned with the manner of choice rather than with the people who were to choose"(43). Mason J said(44):

" Part III of Ch 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."

Murphy J, in dissent, held that s 24 required an equal number of electors in each electoral division(45). However, although McTiernan and Jacobs JJ rejected the contention that, in the light of history, s 24 should be understood to require that there be "absolute or as nearly as practicable absolute equality of numbers of the people" in an electorate, they acknowledged that the notion of equality is present, albeit remaining a matter of degree(46). Stephen J adopted the same view(47).


22. In Nationwide News(48), there is a dictum by Deane and Toohey JJ(49) that tends in favour of the plaintiffs' argument: "While one can point to qualifications and exceptions, such as those concerned with the protection of the position of the less populous States(50), the general effect of the Constitution is, at least since the adoption of full adult suffrage by all the States, that all citizens of the Commonwealth who are not under some special disability are entitled to share equally in the exercise of those ultimate powers of governmental control".

However, the support for that proposition given by their Honours is a footnote referring generally to what McTiernan and Jacobs JJ had said in McKinlay(51).


23. Assuming, without deciding, that the provisions of the Commonwealth Constitution impliedly preclude electoral distributions that would produce disparities of voting power - of whatever magnitude - among those who hold the Commonwealth franchise in a State(52), what do those provisions have to say with respect to the Constitutions and laws of the several States governing electoral distributions for State elections? In my opinion, the Commonwealth Constitution contains no implication affecting disparities of voting power among the holders of the franchise for the election of members of a State Parliament (hereafter "State disparities"). Far from containing an implication affecting State disparities, the text of Pts II and III of Ch I of the Commonwealth Constitution and the structure of the Constitution as a whole are inconsistent with such an implication. Sections 7, 8, 9 and 10 of the Constitution are expressed to relate only to elections for the Senate; ss 24, 25, 29 and 30 are expressed to relate only to elections for the House of Representatives; and s 41 is expressed to relate only to elections for either House of the Parliament of the Commonwealth. Not only are these sections expressly confined to elections for one or other House of the Commonwealth Parliament but they are all contained in Ch I of the Constitution which, being followed by Chs II and III, define the structure of the Commonwealth's three branches of government. Chapter V is the Chapter relating to the States and their Constitutions. The structure of the Constitution is opposed to the notion that the provisions of Ch I might affect the Constitutions of the States to which Ch V is directed.


24. The steps in the plaintiffs' submission, so far as it is based on the Commonwealth Constitution, seem to be as follows: (i) the Commonwealth Constitution contains a principle of representative democracy; (ii) s 106 subjects State Constitutions to the Commonwealth Constitution; (iii) State Constitutions are therefore governed by the principle of representative democracy. But as the principle of representative democracy applies only to the process of electing members to either House of the Parliament of the Commonwealth and as the only provisions of the Commonwealth Constitution that are advanced as capable of affecting the State Constitutions relate to Federal elections, the submission fails at each step. The plaintiffs advance an alternative form of the submission, namely, that the principle of representative democracy implied in the text and structure of the Commonwealth Constitution informs the federal "organic unity of the Commonwealth and the States". I am not confident that I understand the submission. However it be understood, it must involve some notion of representative democracy controlling the distribution by State Parliaments of electoral power in relation to State elections. That proposition must be rejected. So long as the constitutionally implied principle is confined by the text and structure from which the implication is drawn, the only effect that it can have on the "organic unity" is in relation to the process of Federal elections. I would therefore reject the plaintiffs' submissions so far as they are based on the Commonwealth Constitution.

Equality of voting power: the Western Australian Constitution



25. In 1978, the Constitution Act 1889 (WA) ("the 1889 Act") was amended(53) by inserting, inter alia, s 73(2). Sub-section (2) of s 73 prescribes that Bills of the several kinds therein mentioned should "not be presented for assent by or in the name of the Queen" unless passed by an absolute majority of the members of the Legislative Council and the Legislative Assembly and approved by electors at a referendum. Sub-section (2) thus "entrenches" those laws of Western Australia (including the Constitution Act) that would be affected by Bills of the kinds specified in that sub-section. The sub-section applies to a Bill of a kind specified in par (c), namely, a Bill that -

"expressly or impliedly provides that the Legislative Council or
the Legislative Assembly shall be composed of members other than members chosen directly by the people".

In Stephens(54), I said that s 73(2)(c) -

"entrenches in the Constitution Act the requirement that the Legislative Council and the Legislative Assembly be composed of members chosen directly by the people. This requirement is drawn in terms similar to those found in ss 7 and 24 of the Commonwealth Constitution from which the implication that effects a constitutional freedom to discuss government, governmental institutions and political matters is substantially derived. By parity of reasoning, a similar implication can be drawn from the Constitution Act with respect to the system of government of Western Australia therein prescribed."

The "system of government" referred to is a Legislature "chosen directly by the people". It is one thing to hold that that prescription carries the implication in both the Commonwealth Constitution and the Constitution of Western Australia that "the people" be free to discuss the matters that they need to discuss in order to choose their representatives; it is another thing to hold that the phrase implies that there be an equality of voting power. Whatever the phrase may prescribe in the Commonwealth Constitution in relation to the equality of voting power, its significance and effect in the Constitution of Western Australia must be ascertained from its context and the circumstances in which s 73(2)(c) was enacted.


26. Since the 1889 Act was assented to in 1890 pursuant to the Western Australian Constitution Act 1890 (Imp), the electoral laws of Western Australia have been taken out of the 1889 Act where they were confirmed for the purposes of the then new Constitution of the State(55). The laws relating to the distribution of electoral divisions were to be found in a number of different Acts in succession. In the 1899 Act, provision was made in ss 5 and 6 for Electoral Provinces for the election of the Council and in ss 18 and 19 for Electoral Districts for the election of the Assembly. Further distributions of Electoral Provinces and Electoral Districts were made by the Redistribution of Seats Acts of 1904, 1911 and 1929, the Electoral Districts Act 1922 and the Electoral Districts Act Amendment Act 1928. The 1947 Act introduced new provisions for the division of the State into Electoral Provinces for the election of the Council and Electoral Districts for the election of the Assembly. These provisions were themselves altered by the Electoral Districts Act Amendment Acts of 1955, 1963, 1965 and 1975. The last-mentioned Act ("the 1975 Amendment") directed Electoral Commissioners to divide the Metropolitan Area into 27 Electoral Districts and to divide the Agricultural, Mining and Pastoral Area into 24 Electoral Districts(56), leaving the North-West-Murchison-Eyre Area with 4 Electoral Districts(57). The "quota of electors in each area"(58) was to be taken as the basis for electoral districts, but a margin of allowance of 10% in the Metropolitan Area and 15% in the Agricultural, Mining and Pastoral Area was prescribed(59). Sixteen Electoral Provinces for the election of the Council were to be distributed in stated numbers among the three Areas: the Metropolitan Area, the Agricultural, Mining and Pastoral Area and the North-West-Murchison-Eyre Area(60). These were the provisions in force when s 73(2)(c) was inserted in the 1889 Act in 1978. In their operation these provisions authorised and perhaps required a disparity in voting power in respect of both elections for the Council and elections for the Assembly.


27. From before Federation, the State has been so divided into electoral districts for the election of the Assembly and electoral provinces or regions for the election of the Council that there has been inequality in the voting power of electors in different parts of the State. Throughout this time, the holders of the franchise as it stood from time to time have directly chosen the members of the Council and the Assembly for their respective electoral districts and provinces. When s 73(2)(c) was inserted in the 1889 Act in 1978, it is impossible to suppose that the Parliament of Western Australia intended thereby to override the regime of electoral districts and provinces which were then, and had historically been, the electoral framework of the State. The language of s 73(2)(c) must be construed in the light of the constitutional history of the State and the circumstances existing when that provision was introduced(61). The purpose of that provision was not the creation of a new electoral regime; it was simply privative of the uncontrolled or partly-controlled power of constitutional amendment vested in the Parliament by s 73(1). The material purpose of the 1978 Act was expressed in its preamble as the making of further constitutional provision "to confirm the established constitutional provision aforesaid (relating to the Council, the Assembly and their powers) and to regulate the manner and form in which the powers of the Parliament of Western Australia may hereafter be exercised". Having regard to the history of the State's electoral laws and the context and operation of s 73(2)(c), it is impossible to find an implication other than the entrenchment of the system of electing members of the Council and the Assembly by direct popular vote. To find in s 73(2)(c) an implication that electoral power be equally distributed among the people of the State or among the people of the State possessing the franchise would be to find a legislative intention destructive of the means by which the enacting Parliament was elected.


28. I may add that, if the Constitution of Western Australia had been affected by an implication drawn from the Commonwealth Constitution of the kind for which the plaintiffs contend, the provisions of the 1899 Act as in force on 1 January 1901 which then prescribed the Electoral Provinces for electing members of the Legislative Council(62) and the Electoral Districts for electing members of the Legislative Assembly(63) would have ceased to have effect. That would have been a startling and unintended consequence of Federation for Western Australia and probably for other States as well.


29. The legislative power of the Parliament of Western Australia to create or to alter or to authorise the creation or alteration of electoral divisions for the election of the Council and the election of the Assembly was unaffected by the insertion of s 73(2)(c) into the 1889 Act. There was no relevant amendment to the Constitution of Western Australia after 1978 prior to the enactment of the 1987 Act. It follows that the Parliament had power to enact the impugned provisions of the 1987 Act. That Act does not touch the provisions, whether constitutional or statutory, that govern the election of members of the Senate or of the House of Representatives in the Commonwealth Parliament. The impugned provisions of the 1987 Act are therefore valid and the questions reserved for consideration by the case stated should be answered as follows:

(i) Is s 6 of the Constitution Acts Amendment Act 1899 (WA) invalid ? Answer: No.

(ii) Are ss 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (WA), or any of them, invalid? Answer: No.

(iii) If any of ss 2A(2), 6 or 9 of the Electoral Distribution Act 1947 (WA) is or are invalid, is it or are they severable and, if so, to what extent? Answer: Unnecessary to answer.


DAWSON J. In this case the plaintiffs contest the validity of Western Australian legislation which, in providing for the election of members of the Western Australian parliament, allows non-metropolitan electorates to comprise substantially fewer enrolled electors than metropolitan electorates. This, the plaintiffs say, offends against the principle which is succinctly, though inadequately, expressed in the political slogan "one vote, one value". Observance of that principle is, so the plaintiffs contend, required by implication by both the Commonwealth Constitution, which in that respect extends to Western Australia, and the Western Australian Constitution(64).

2. For the purpose of the election of members of the Western Australian Legislative Assembly, the relevant legislation divides the State into two areas, one of which is the metropolitan area and the other of which is the rest of the State. Electoral distribution commissioners are required to divide the metropolitan area into 34 districts and the rest of the State into 23 districts(65). The division into districts is required to be made in accordance with the principle that the number of enrolled electors comprised in any district must not be more than 15% greater or less than a quotient obtained by dividing the total number of electors in the area by the number of districts into which the area is to be divided(66). Since over 70% of electors are enrolled in the metropolitan area, the effect of the legislation is that districts in the non-metropolitan area comprise substantially less electors than districts in the metropolitan area. Thus, as at 30 June 1995, the quotient for districts in the metropolitan area was 23,117 electors, whilst the quotient for districts outside the metropolitan area was 12,196.


3. Members of the Legislative Council are chosen from six regions, three of which are located in the metropolitan area. One of those three regions returns seven members and the other two return five members each. The remaining three regions are outside the metropolitan area. Two of those regions return five members each and the remaining one returns seven members(67). The result is that less than 30% of enrolled electors, being the electors outside the metropolitan area, elect 50% of the members of the Legislative Council, leaving the other 50% to be elected by over 70% of the enrolled electors.


4. The argument that the Commonwealth Constitution requires electorates for the House of Representatives to contain, as far as practicable, equal numbers of persons or electors is not novel. Such an argument was put and rejected in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth(68). But the plaintiffs, encouraged by recent decisions of this Court(69), put the argument once again, seeking leave, if necessary, to reopen McKinlay and to have the Court overrule that decision.


5. In the recent decisions upon which the plaintiffs rely, a majority of this Court found that ss 7 and 24 and related sections of the Constitution by implication require that there be freedom of communication in relation to political matters. Sections 7 and 24 provide that the members of the Commonwealth parliament be directly chosen by the people, in the case of the Senate by the people of each State and in the case of the House of Representatives by the people of the Commonwealth. For my own part, I was of the view in each of the decisions relied upon that ss 7 and 24 go no further than requiring that there be a choice of members of parliament by a direct, rather than an indirect, method. But the choice is to be made by the holding of elections(70) and is required to be a genuine choice so that, in the view which I expressed, any law which precluded the communication of information which was required for the exercise of a genuine choice would be invalid because it would be in conflict with ss 7 and 24(71).


6. The wider views expressed by other members of the Court were based upon the notion that the Constitution ordains representative government from which an implication of freedom of communication is to be drawn. Thus in Theophanous v Herald and Weekly Times Ltd(72) Mason CJ, Toohey and Gaudron JJ, having referred to Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v The Commonwealth, said:

"In those cases, a majority of the Court distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication. That implication does not extend to freedom of expression generally(73). The limited scope of the freedom was expressed in various ways by the members of the Court. It was described as 'freedom of communication, at least in relation to public affairs and political discussion'(74), 'freedom ... to discuss governments and political matters'(75), 'freedom of communication about the government of the Commonwealth' which 'extends to all political matters', including 'matters relating to other levels of government'(76), 'freedom of political discourse'(77) and 'freedom of participation, association and communication in relation to federal elections'(78)".


7. Mason CJ, Toohey and Gaudron JJ went on in Theophanous(79) to say that it was necessary in considering the expression "political discussion" to bear in mind "that the underlying purpose of the freedom is to ensure the efficacious working of representative democracy". Deane and Toohey JJ had expressed a similar view in Australian Capital Television(80) where they said that "it is an implication of the doctrine of representative government embodied in the Commonwealth Constitution that there shall be freedom within the Commonwealth of communication about matters relating to the government of the Commonwealth." They continued: "the implication is drawn from an underlying doctrine of the Constitution rather than from any express term".


8. I have expressed in the previous cases the difficulty which I experience with this line of reasoning. It is a difficulty which, as I understand his judgment in Theophanous, McHugh J ultimately expressed when he said(81):

"I can find no support in the Constitution for an implication that the institution of representative government or representative democracy is part of the Constitution independently of the terms of ss 1, 7, 24, 30 and 41 of the Constitution. I think that all that can fairly be said is that those sections of the Constitution give effect to the political institution of representative government. But neither logic nor the efficacy of those sections or the federal system itself implies that independently of those sections the institution of representative government or representative democracy is itself part of the Constitution."

The concept of representative democracy or representative government (and the latter is the more precise expression(82)) does not have any necessary characteristics other than an irreducible minimum requirement that the people be "governed by representatives elected in free elections by those eligible to vote"(83). Stephen J recognised as much in McKinlay when he observed that(84):
"The principle of representative democracy does indeed predicate the
enfranchisement of electors, the existence of an electoral system capable of giving effect to their selection of representatives and the bestowal of legislative functions upon the representatives thus selected. However the particular quality and character of the content of each one of these three ingredients of representative democracy, and there may well be others, is not fixed and precise."


10. Sections 1, 7, 8, 16, 24 and 30 of the Constitution provide for the minimum requirements of representative government but do not purport to go significantly further. The Constitution also provides for the maintenance of equal representation of the Original States in the Senate and a minimum number of senators for each Original State (s 7), the rotation of senators (s 13), the filling of casual Senate vacancies (s 15), the disqualification of members (s 44), disputed elections (s 47) and certain other matters of machinery. It further provides in s 41 that no adult person who has or acquires a right to vote for the more numerous House of Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. Each elector has only one vote (ss 8 and 30). Otherwise the form of representative government which we are to have is left to parliament, provision being made until parliament otherwise provides(85). In particular, it is left to parliament to make laws determining the electoral divisions for which members of parliament may be chosen. The only limitation is that a division shall not be formed out of parts of different States(86). In providing for those matters which are confided to it, parliament is required to determine questions of a political nature about which opinions may vary considerably. For example, the qualifications of electors are to be provided for by parliament under ss 8 and 30 and may amount to less than universal suffrage, however politically unacceptable that may be today. Thus, it may be seen that the form of representative government, including the type of electoral system, the adoption and size of electoral divisions, and the franchise are all left to parliament by the Constitution.


11. In those circumstances it was my view that no guarantee of freedom of communication, other than that required by the prescription of elections, could be read into the Constitution as an implication of representative government. The representative government prescribed by the Constitution is that for which it provides. The reasoning of the majority was to the contrary but that reasoning does not in my view extend so far as to support the plaintiffs' submission that, by implication, the Constitution requires electorates to be, as far as is practicable, of equal size.


12. There are hundreds of electoral systems in existence today by which a form of representative government might be achieved. Their merits must be judged by a number of different criteria which are likely to be incompatible with one another. As one commentator has put it(87):

"High priority amongst conflicting criteria would generally be given to such considerations as the extent to which a particular system promoted stable and effective government, fairness of representation, a wide choice of representatives, and contact between the electorate and its chosen representatives. But there will be disagreement on the relative priorities to be attached to each of these aims. Frequently a balance will have to be struck between them. Fair representation is a valuable aspiration, but not perhaps at the expense of encouraging the growth of too many splinter groups which could weaken the effectiveness of government. On the other hand, it would be foolish to pursue the aim of strong government so single-mindedly as to prevent the natural diversity of opinion amongst the electorate from being reflected in the composition of the legislature."

There can be no implication that a particular electoral system, of the many available, is required by the Constitution. There is, of course, the express requirement that whatever system is employed it must result in a direct choice by the people. That must mean direct choice by the people through those eligible to vote at elections, but beyond that the matter of electoral systems, including the size of electoral divisions, and indeed whether to have divisional representation at all(88), is left to the parliament.


13. Whatever those responsible for framing the Constitution may have regarded as the most appropriate electoral system for federal elections, their views are not contained in that instrument. They remain at best "unexpressed assumptions upon which the framers of the instrument supposedly proceeded"(89) and are not to be confused with those intentions which are expressed. Whilst implications can be and have been drawn from the Constitution, it is clear beyond question that implications may only properly be drawn where they are necessary or obvious. As Windeyer J observed in Victoria v The Commonwealth(90) "our avowed task is simply the revealing or uncovering of implications that are already there". That is to say, if implications are to be drawn, they must appear from the terms of the instrument itself and not from extrinsic circumstances(91). The distinction has been drawn between textual and structural implications(92), but I am not sure that the distinction is helpful. Whether or not an implication is categorised as structural or not, its existence must ultimately be drawn from the text. One is brought back to the text in the end and the danger in speaking of structural implications is, it seems to me, that there is a temptation to include by implication as part of the relevant structure those values which the structure is capable of, but does not necessarily, accommodate(93). That is, I think, what the plaintiffs' argument entails.


14. Once it is recognised, as in my view it must be, that electorates of equal numerical size are not a necessary characteristic of representative government, the plaintiffs are driven in their argument to find in the system of representative government laid down by the Constitution a requirement that there be, as nearly as practicable, electorates of equal size. But that requirement is nowhere to be found in any express provision of the Constitution and this Court has denied in McKinlay that there is any basis for its implication. It is not to be found in the expression "directly chosen by the people" contained in ss 7 and 24. Indeed, ss 7 and 24 contain requirements which are to the contrary(94).


15. As Barwick CJ pointed out in McKinlay(95) no Australian colony at the time of federation insisted upon practical equality in the size of electoral divisions and the view was then plainly open that problems of communication and access in geographically large electorates outside a metropolitan area justify different numerical sizes in electoral divisions. That is a view which obviously still prevails in Western Australia under the current legislation.


16. Clearly there is force in the contrary view which holds that the effect of unequal electoral divisions - malapportionment - is to weight the value of votes in the numerically smaller divisions(96). But the extra weight is only in the consequence that an elector in a smaller electorate is required to share his or her representative with a lesser number of electors than in the larger electorate. There are other ways, perhaps more significant, in which the value of a vote may be affected as, for example, where electoral divisions are defined in such a way as to allow one party in a two party system to return a majority of representatives with less than a majority of the total votes, which may occur whether or not malapportionment also exists. Disproportion of this kind may be intentionally caused by a gerrymander(97). Of course, the problems arising from malapportionment and disproportion would largely disappear if there were no electoral divisions within a State and a system of proportional representation were adopted - something envisaged by s 29 of the Constitution(98). But such a system may be to the detriment of a two party system by encouraging the growth of splinter groups. Barwick CJ adverted to the problems in McKinlay when, assuming electoral divisions, he said(99):


17. "Again, to ignore community of interest in the creation of electoral divisions and to insist on mere equality of numbers will be likely, in my opinion, to produce inequality rather than equality of voting value. It is probably impossible to devise a formula for electoral distribution which will necessarily produce equality in voting value, which will ensure that each vote is of equal weight in an election as a whole or even as between electoral divisions."


18. These considerations suggest that it would be unwise to freeze into a constitutional requirement a particular aspect of an electoral system the attraction of which might vary at different times, in different conditions and to different eyes. The wisdom of those who were responsible for framing our Constitution in recognising the political nature of such matters, and in leaving them to parliament, ought not to be overborne by drawing an implication which is neither apparent nor necessary.


19. In Ref re Electoral Boundaries Commission Act(100) the Canadian Supreme Court denied that the purpose of s 3 of the Canadian Charter of Rights and Freedoms was an absolute guarantee of equality of voting power. That section provides: "Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein." McLachlin J(101) held that effective representation, not equality of voting power per se, was the purpose of s 3 and that representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one's grievances and concerns to the attention of one's government representative. She continued(102):

"such relative (voter) 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 of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed."


20. The Canadian Supreme Court rejected in Ref re Electoral Boundaries Commission Act the approach since 1964 in the United States which views the command in Art 1, s 2 of the United States Constitution that representatives be "chosen ... by the People of the several States" as a requirement that congressional electoral districts be as nearly as practicable equal in population(103). That construction of Art 1, s 2 was adopted by the United States Supreme Court in Wesberry v Sanders(104), having regard to the historical context of the provision, although in a forceful dissenting judgment Harlan J expressed the view that the "historical context" relied upon by the majority "bears little resemblance to the evidence found in the pages of history"(105). However that may be, in Ref re Electoral Boundaries Commission Act McLachlin J distinguished the Canadian history of the right to vote in Canada from that of the United States and described the Canadian tradition as one of "evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation, which even in its advanced stages tolerates deviation from voter parity in the interests of better representation"(106).


21. The United States historical context is similarly inapt in any consideration of the form of representative government for which the Commonwealth Constitution provides. The democratic traditions of both Canada and Australia find their origins in the English model rather than in rebellion against it as is the case in the United States. Thus the reasoning in Wesberry v Sanders did not find favour with this Court in McKinlay(107). As Mason J said(108):

"It is no answer ... to say that our Constitution is based on the American Constitution or that s 24 is based on Art 1, s 2. The interpretation adopted in Wesberry v Sanders is again a modern development that altered the inequality in electoral divisions which prevailed in the United States from early times. This inequality was understood to involve no contravention of Art 1, s 2 until Wesberry v Sanders was decided. When our Constitution was enacted it had not been decided that Art 1, s 2 insisted upon an equality in the value of a vote. The American provision was not thought to carry that message. And it is simply not correct to say that provisions in our Constitution should receive the same construction as that given to similarly worded provisions in the United States Constitution which have a different context and a different history, more particularly when the suggested construction is of recent origin, reversing an interpretation previously accepted."


22. And as Gibbs J observed in McKinlay(109) the English model which was relevant in Australia at the time of federation did not display a history of electoral equality: after the Reform Acts and even after the Redistribution Act of 1885 there remained substantial inequality.

452 The federal Parliament has provided that the Queensland Parliament may not make such laws: Commonwealth Electoral Act 1918, s 39.
453 Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 452.
454 This ratio had only appeared in the draft Bill which was presented to the Convention on 12 April 1897 in Adelaide. See Convention Debates, vol 3 at 435.
455 See Convention Debates, vol 3 at 683-710; vol 5 at 1829-1837.
456 Convention Debates, vol 3 at 701.
457 Convention Debates, vol 1 at 612-613. It had provided for one member for every 30,000 people.
458 Convention Debates, vol 3 at 701-702.
459 The Federal Council (Adopting) Act 1885 (Q), s 3; The (Victorian) Federal Council Act 1885 (Vic), s 3; The (Tasmanian) Federal Council Act 1885 (Tas), s 3; The Federal Council Adopting Act 1888 (SA), s 3.
460 The Federal Council (Adopting) Act 1885 (WA), s 2.
461 (1975) 135 CLR 1 at 44.
462 (1975) 135 CLR 1 at 68-69.
463 Reid and Forrest, Australia's Commonwealth Parliament 1901-1988, (1989) at 87.
464 Speaking as the Minister with the carriage in the Senate of the Bill for the Commonwealth Electoral Act 1902, Parliamentary Debates (Hansard), 1902, vol 8 at 10702.
465 (1975) 135 CLR 1 at 62.
466 Convention Debates, vol 3 at 683-710.
467 cf Missouri v Holland (1920) 252 US 416 at 433 per Holmes J, quoted by Windeyer J in Spratt v Hermes (1965) 114 CLR 226 at 272.
468 See McKinlay (1975) 135 CLR 1 at 19.
469 11 and 12 Geo 6 c 65. See also the Representation of the People Act 1949 (UK), s 1(1).
470 Wade and Phillips, Constitutional Law, 3rd ed (1946) at 73.
471 Senate, Parliamentary Debates, (Hansard), 7 March 1902, vol 8 at 10747.
472 R v Pearson; Ex parte Sipka (1983) 152 CLR 254 at 264-265, 277-279.
473 (1926) 38 CLR 380.
474 Crisp, "Compulsory Voting in Australia", (1950) 4 Parliamentary Affairs 84.
475 See Reid and Forrest, Australia's Commonwealth Parliament 1901-1988, (1989) at 118-122.
476 Reid and Forrest, Australia's Commonwealth Parliament 1901-1988, (1989) at 86-87.
477 (1994) 182 CLR 104 at 203.
478 Convention Debates, vol 1 at 619.
479 McKinlay (1975) 135 CLR 1 at 20 per Barwick CJ.
480 (1975) 135 CLR 1 at 45.
481 (1975) 135 CLR 1 at 45-46 per Gibbs J.
482 House of Representatives, Parliamentary Debates (Hansard), 1902, vol 10 at 13867.
483 (1964) 377 US 533 at 623-624.
484 (1992) 174 CLR 455.
485 (1992) 177 CLR 106. The various terms in which the proposition was formulated by the members of the Court are set out by Brennan J in Cunliffe (1994) 182 CLR 272 at 326.
486 Stephens (1994) 182 CLR 211 at 235.
487 cf McKinlay (1975) 135 CLR 1 at 61 per Mason J.
488 (1975) 135 CLR 1 at 36.
489 Commonwealth Electoral Act 1973 (Cth); Parliamentary Electorates and Elections (Amendment) Act 1970 (NSW); Constitution Act Amendment Act (No 2) 1970-1971 (SA); Electoral Act Amendment Act (No 2) 1970 (WA); The Constitution Act Amendment (Qualifications) Act 1973 (Vic); Elections Act and the Criminal Code Amendment Act 1973 (Q); Age of Majority Act 1973 (Tas). See also King v Jones (1972) 128 CLR 221 at 263-264.
490 (1989) 59 DLR (4th) 247.
491 (1989) 59 DLR (4th) 247 at 266.
492 (1991) 81 DLR (4th) 16 at 35.
493 (1991) 81 DLR (4th) 16 at 36.
494 (1991) 81 DLR (4th) 16 at 38.
495 (1962) 369 US 186.
496 See Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 614-615 per Brennan J.
497 (1994) 182 CLR 211 at 232-233 per Mason CJ, Toohey and Gaudron JJ, 236 per Brennan J.
498 (1994) 182 CLR 211 at 236.
499 (1994) 182 CLR 104.
500 (1992) 177 CLR 1.
501 (1992) 177 CLR 106.
502 (1994) 182 CLR 104 at 120-121 per Mason CJ, Toohey and Gaudron JJ.
503 (1994) 182 CLR 104 at 163 per Deane J.
504 (1994) 182 CLR 211.
505 (1994) 182 CLR 211 at 257.
506 (1994) 182 CLR 211 at 232.
507 (1992) 177 CLR 1 at 75-76 per Deane and Toohey JJ.
508 (1992) 177 CLR 106 at 142 per Mason CJ, 168-169 per Deane and Toohey JJ, 216-217 per Gaudron J.
509 (1994) 182 CLR 104 at 122.
510 (1992) 177 CLR 106 at 142, 168-169, 215-217.
511 The Annotated Constitution of the Australian Commonwealth, (1901) at 162.
512 Such a proposal had been made in 1892 in the Queensland Constitution Bill introduced in the Legislative Assembly by Sir Samuel Griffith but defeated in the Legislative Council. See Joyce, Samuel Walker Griffith, (1984) at 147, 173-175, 191; Legislative Assembly, Parliamentary Debates (Hansard), 26 July 1892, vol 68 at 792-795; Legislative Council, 25 and 26 October 1892, vol 66 at 162-167, 169-177.
513 Clayton v Heffron (1960) 105 CLR 214 at 248-249.
514 ss 7, 9, 29, 123 and 124.
515 (1994) 182 CLR 211 at 232-233.
516 (1994) 182 CLR 211 at 233.
517 s 73(1), first proviso; see Western Australia v Wilsmore (1982) 149 CLR 79, esp at 93-98 per Wilson J.
518 s 73(2)(g); see also s 73(2)(e) and s 73(3), (4), (5), (6).
519 Mercure v The Queen (1988) 48 DLR (4th) 1 at 65.
520 The Hon Justice French, "Manner and Form in Western Australia: An Historical Note", (1993) 23 University of Western Australia Law Review 335 at 338.
521 (1932) AC 526 at 539-540.
522 (1981) WAR 179 at 184.
523 Differing views are expressed in Goldsworthy, "Manner and Form in the Australian States", (1987) 16 Melbourne University Law Review 403 at 426-428.
524 (1965) AC 172 at 197.
525 11 Geo 6 c 7.
526 Ibralebbe v The Queen (1964) AC 900 at 922-923; Liyanage v The Queen (1967) 1 AC 259 at 283-286.
527 (1975) 134 CLR 81 at 162-164.
528 (1980) 25 SASR 389 at 420-422; see also Chander, "Sovereignty, Referenda, and the Entrenchment of a United Kingdom Bill of Rights", (1991) 101 Yale Law Journal 457 at 463-467.
529 Section 73(2)(e) of the 1889 Act imposes a manner and form requirement upon any Bill of the Western Australian legislature which expressly or impliedly in any way affects, inter alia, ss 50 and 51 of the 1889 Act. Section 14 of the Australia Acts amended ss 50 and 51 and presumably was effective to do so at least as a step taken by and pursuant to the Australia Act 1986 (Imp).
530 cf Clydesdale v Hughes (1934) 51 CLR 518 at 528-529; Western Australia v Wilsmore (1982) 149 CLR 79 at 102-103.
531 (1994) 182 CLR 211 at 233-234.
532 Parliamentary Debates (Hansard), 17 August 1978 at 2412.
533 Parliamentary Debates (Hansard), 22 March 1978 at 308.
534 (1989) 59 DLR (4th) 247 at 253-255.