McGINTY v Western Australia

70 ALJR 200

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(Decision by: DAWSON J)

JAMES ANDREW McGINTY, GEOFFREY IAN GALLOP and STANLEY JOHN HALDEN v THE STATE OF WESTERN AUSTRALIA

Court:

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh
Gummow JJ

Judgment date: 20 FEBRUARY 1996

CANBERRA

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Decision by:
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 ^[F64] .

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 ^[F65] . 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 ^[F66] . 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.

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 ^[F67] . 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.

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 ^[F68] . But the plaintiffs, encouraged by recent decisions of this Court ^[F69] , put the argument once again, seeking leave, if necessary, to reopen McKinlay and to have the Court overrule that decision.

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 ^[F70] 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 ^[F71] .

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 & Weekly Times Ltd ^[F72] 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 ^[F73] . 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' ^[F74] , 'freedom ... to discuss governments and political matters' ^[F75] , 'freedom of communication about the government of the Commonwealth' which 'extends to all political matters', including 'matters relating to other levels of government' ^[F76] , 'freedom of political discourse' ^[F77] and 'freedom of participation, association and communication in relation to federal elections' ^[F78] ".

Mason CJ, Toohey and Gaudron JJ went on in Theophanous ^[F79] 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 ^[F80] 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".

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 ^[F81] :

"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 ^[F82] ) 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" ^[F83] . Stephen J recognised as much in McKinlay when he observed that ^[F84] :

"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."

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 ^[F85] . 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 ^[F86] . 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.

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.

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 ^[F87] :

"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 legislation."

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 ^[F88] , is left to the parliament.

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" ^[F89] 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 ^[F90] "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 ^[F91] . The distinction has been drawn between textual and structural implications ^[F92] , 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 ^[F93] . That is, I think, what the plaintiffs' argument entails.

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 ^[F94] .

As Barwick CJ pointed out in McKinlay ^[F95] no Australian colony at the time of federation insisted upon practical equality in the size of electoral divisions and the view was then plainly open that problems of communication and access in geographically large electorates outside a metropolitan area justify different numerical sizes in electoral divisions. That is a view which obviously still prevails in Western Australia under the current legislation.

Clearly there is force in the contrary view which holds that the effect of unequal electoral divisions - malapportionment - is to weight the value of votes in the numerically smaller divisions ^[F96] . 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 ^[F97] . 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 ^[F98] . 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 ^[F99] :

"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."

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.

In Ref re Electoral Boundaries Commission Act ^[F100] 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 ^[F101] 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 ^[F102] :

"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."

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 ^[F103] . That construction of Art 1, s 2 was adopted by the United States Supreme Court in Wesberry v. Sanders ^[F104] , 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" ^[F105] . 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" ^[F106] .

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 ^[F107] . As Mason J said ^[F108] :

"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."

And as Gibbs J observed in McKinlay ^[F109] 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.

Whilst the plaintiffs seek, if necessary, to have the Court overrule McKinlay, they attempt to sidestep that decision by placing reliance upon the recent decisions of this Court relating to freedom of communication and by finding in the concept of representative government not only an implied freedom of communication but also an implied requirement that electoral divisions be, as nearly as practicable, of the same numerical size. As I have indicated, the system of representative government which, without mentioning it by name, the Constitution prescribes is that for which it provides. And the provision which it makes is of a minimal kind. It is fallacious reasoning to posit a system of representative government for which the Constitution does not provide and to read the requirements of that system into the Constitution by implication. An implication of that kind is drawn from an extrinsic source and not from the text of the Constitution. It imports into the Constitution values which the Constitution does not adopt notwithstanding that it is capable of accommodating them. The Constitution does not, for these reasons, contain by implication the principle expressed in the words "one vote, one value", but the parliament may, should it consider it desirable to do so, adopt that principle in exercising its power to provide for electoral divisions. Indeed, it has done so in accordance with its view of the practicalities in the Commonwealth Electoral Act 1918 (Cth) ^[F110] .

I would reject the plaintiffs' argument based upon the freedom of communication cases. That leaves the decision in McKinlay. In my view the reasoning of the majority in that case is compelling and I see no reason to depart from it.

It is true that in McKinlay McTiernan and Jacobs JJ ^[F111] suggested that the notion of equality is to some extent present in the words "chosen by the people" so that at some point electoral inequality might be inconsistent with a choice by the people. They rejected, however, any requirement of absolute equality or nearly as practicable equality. Similarly, Mason J said ^[F112] :

"It is perhaps conceivable that variations in the numbers of electors or people in single member electorates could become so grossly disproportionate as to raise a question whether an election held on boundaries so drawn would produce a House of Representatives composed of members directly chosen by the people of the Commonwealth, but this is a matter quite removed from the proposition that s 24 insists upon a practical equality of people or electors in single member electorates."

In my view, both McTiernan and Jacobs JJ and Mason J had in mind extreme situations markedly different from that which exists under the relevant Western Australian legislation.

Because of these conclusions it is strictly unnecessary for me to deal with the argument advanced by the plaintiffs that the requirement of electoral equality, said by them to be contained in the Commonwealth Constitution, extends to the States. But I am able to express my agreement with the conclusion reached by the Chief Justice, for the reasons given by him, that the system of representative government for which Ch I of the Commonwealth Constitution provides is confined to the Parliament of the Commonwealth and is not intended as a prescription for the States. The continuation by s 106 of the Commonwealth Constitution of the former colonial constitutions as State constitutions is made "subject to this Constitution", but this does not serve to apply to the States provisions of the Commonwealth Constitution which otherwise have no application to them.

I am also in agreement with the Chief Justice, for the reasons which he gives, that, irrespective of the meaning to be given to the words "directly chosen by the people" in ss 7 and 24 of the Commonwealth Constitution, the words "chosen directly by the people" in s 73(2)(c) ^[F113] of the Constitution Act 1889 (WA) do not contain any implication of electoral equality. In their own context they do not bear a meaning different from the similar words used in the Commonwealth Constitution.

For these reasons I agree with the answers proposed by the Chief Justice.