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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
McGinty v Western Australia [1996] HCA 48
Case
[1996] HCA 48
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a case stated concerning the validity of certain provisions of Western Australian electoral legislation. The applicant, Mr. McGinty, challenged the constitutional validity of section 6 of the *Constitution Acts Amendment Act 1899* (WA) and sections 2A(2), 6, and 9 of the *Electoral Distribution Act 1947* (WA). The core of the dispute revolved around whether these Western Australian laws, which established the state's electoral system, were inconsistent with implied constitutional principles derived from the Commonwealth Constitution, particularly sections 7 and 24, which require members of the Commonwealth Parliament to be "directly chosen by the people."
The legal issues before the Court were whether the Western Australian electoral laws were invalid by reason of their incompatibility with the implied constitutional requirement of representative government, specifically concerning the equality of voting power. The Court was asked to determine if section 6 of the *Constitution Acts Amendment Act 1899* (WA) was invalid, and if sections 2A(2), 6, and 9 of the *Electoral Distribution Act 1947* (WA), or any of them, were invalid. The Court also had to consider the severability of any invalid provisions.
The Court reasoned that the implication of representative democracy from sections 7 and 24 of the Commonwealth Constitution applied to the Commonwealth Parliament, not to the States. While section 106 of the Commonwealth Constitution preserves State constitutions, it does so subject to the Commonwealth Constitution. However, the implication of representative democracy was not found to extend to the electoral systems of the States. The Court held that the Western Australian legislation did not contravene any constitutional provision.
Consequently, the High Court answered the questions reserved in the case stated. It held that section 6 of the *Constitution Acts Amendment Act 1899* (WA) was not invalid. Similarly, sections 2A(2), 6, and 9 of the *Electoral Distribution Act 1947* (WA) were also found not to be invalid, rendering the question of severability unnecessary to answer. Costs were reserved.
Orders
Orders of the court
1. Answer the questions reserved in the case stated as follows:
1. Is s 6 of the Constitution Acts Amendment Act 1899 (WA) invalid?
Answer: No.
2. Are ss 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (WA), or any of them, invalid?
Answer: No.
3. 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.