McGINTY v Western Australia

70 ALJR 200

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(Judgment by: TOOHEY 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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Judgment by:
TOOHEY J

By this case stated the Court is asked to answer the following questions:

"(i)

Is Section 6 of the Constitution Acts Amendment Act 1899 (WA) invalid?

(ii)

Are Sections 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (WA), or any of them, invalid?

(iii)

If any of the Sections 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?"

The challenge

Oversimplifying the plaintiffs' case, s 6 of the Constitution Acts Amendment Act 1899 (WA) ("the 1899 Act") and ss 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (WA) ("the 1947 Act") are claimed to be invalid on the following grounds:

1.

By reason of s 73(2)(c) of the Constitution Act 1889 (WA) ("the 1889 Act").

2.

By reason of an implication of representative democracy to be drawn from the 1889 Act itself.

3.

By reason of an implication of representative democracy to be drawn from the Australian Constitution and applicable to the Constitution of Western Australia.

The basic contention of the plaintiffs is that by reason of one or more of the above considerations there is an implied requirement that, within practicable and rational limits, the number of persons eligible to vote for a member in one electorate of a House of the Parliament of the State of Western Australia should be approximately the same as the number of persons eligible to vote for a member in another electorate of that House. They say that, in respect of voting for members in both the Legislative Assembly and the Legislative Council, the legislation challenged results in an unwarranted malapportionment in favour of non-metropolitan voters.

The plaintiffs point to variations in the electoral districts of both the Legislative Assembly and the Legislative Council, which they say result in such a malapportionment between voters as to be at odds with the requirements of representative democracy. As a consequence of the 1947 Act, electoral districts for voting for the Legislative Assembly contain approximately 23,000 electors plus or minus 15% for the metropolitan zone and approximately 12,000 electors plus or minus 15% for the non-metropolitan zone. As to the Legislative Council, there are now six multi-member electoral regions, three in the metropolitan zone and three in the non-metropolitan zone. The distribution of seats is spread evenly between the two zones but the majority of electors is to be found in the metropolitan zone.

Thus the complaint of the plaintiffs is not that any one elector has a vote of greater value than the vote of any other elector in the constituency to which they belong. Rather, it is that there is an undue disparity in the number of electors who may vote in the various constituencies, the disparity being most marked as between metropolitan and non-metropolitan voters. It will be necessary to refer to this disparity in more detail later in this judgment.

The relevant legislation

The 1889 Act is expressed in its long title to be "An Act to confer a Constitution on Western Australia, and to grant a Civil list to Her Majesty". The 1899 Act is expressed in its long title to be "An Act to amend the Constitution Act 1889, and to amend and consolidate the Acts amending the same".

Section 6 of the 1899 Act ^[F114] , which is under challenge by the plaintiffs, reads:

" (1)

The State shall be divided into 6 electoral regions under the Electoral Distribution Act 1947.

(2)

The electoral regions known, respectively, as the North Metropolitan Region and the South West Region shall each return 7 members to serve in the Legislative Council.

(3)

The electoral regions known, respectively, as the South Metropolitan Region, the East Metropolitan Region, the Agricultural Region and the Mining and Pastoral Region shall each return 5 members to serve in the Legislative Council."

Section 19 of the 1899 Act, which is not under challenge, provides that, for the purposes of the Legislative Assembly, the State shall be divided into 57 electoral districts under the Electoral Act, "each returning one member to serve in the Legislative Assembly".

The sections of the 1947 Act under challenge read ^[F115] :

"2A.

(1)

The State shall be divided into districts and regions in accordance with this Act as soon as practicable after the day of the commencement of the Acts Amendment (Electoral Reform) Act 1987.

(2)

If the same division under this Act has applied in respect of 2 successive general elections for the Legislative Assembly the State shall be divided into districts and regions in accordance with this Act as soon as practicable after the day that is one year after the polling day for the second of those general elections.

(3)

The Governor may, by proclamation, direct that the State be divided into districts and regions in accordance with this Act as soon as practicable after the day of the issue of the proclamation.

(4)

A proclamation shall be made under subsection (3) if both Houses of Parliament pass a resolution to that effect.

(5)

The date used for determining the numbers of electors for the purpose of making a division required under subsection (1) or (2) or directed under subsection (3) shall be the day specified in subsection (1), (2) or (3) as the day as soon as practicable after which the division is to be carried out."

"6.

(1)

The Commissioners shall-

(a)

divide the Metropolitan Area into 34 districts; and

(b)

divide the area comprising the remainder of the State into 23 districts.

(2)

The Commissioners shall make the division of an area mentioned in subsection (1)(a) or (b) into districts in accordance with the principle that the number of enrolled electors comprised in any district in the area must not be more than 15% greater, or more than 15% less, than the quotient obtained by dividing the total number of enrolled electors in the area by the number of districts into which the area is to be divided."

"9.

The Commissioners shall divide the State into 6 regions so that-

(a)

3 regions, to be known, respectively, as the North Metropolitan Region, the South Metropolitan Region and the East Metropolitan Region, each consist of complete and contiguous districts that together form the Metropolitan Area;

(b)

one region, to be known as the Mining and Pastoral Region, consists of complete and contiguous districts that are remote from the capital and where the land use is primarily for mining and pastoral purposes;

(c)

one region, known as the Agricultural Region, consists of complete and contiguous districts that together form an area that is generally south, or south and west, of and adjacent to the Mining and Pastoral Region; and

(d)

the remaining region, to be known as the South West Region, consists of complete and contiguous districts."

Finally, it is necessary to set out a portion of s 73 of the 1889 Act, which is claimed by the plaintiffs to provide one basis upon which provisions of the 1947 Act should be declared invalid. So far as is material, s 73 ^[F116] reads:

"(1)

Subject to the succeeding provisions of this section, the Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. Provided always, that it shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively. Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III provided, and every Bill which shall interfere with the operation of sections 69, 70, 71, or 72, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty's pleasure thereon.

(2)

A Bill that-

(a)

expressly or impliedly provides for the abolition of or alteration in the office of Governor; or

(b)

expressly or impliedly provides for the abolition of the Legislative Council or of the Legislative Assembly; or

(c)

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; or

(d)

expressly or impliedly provides for a reduction in the numbers of the members of the Legislative Council or of the Legislative Assembly; or

(e)

expressly or impliedly in any way affects any of the following sections of this Act, namely-sections 2, 3, 4, 50, 51 and 73, shall not be presented for assent by or in the name of the Queen unless-

(f)

the second and third readings of the Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly, respectively; and

(g)

the Bill has also prior to such presentation been approved by the electors in accordance with this section, and a Bill assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act."

Section 73(2)(c)

The preamble to the legislation adding sub-s (2) to s 73 reads in part:

" And whereas by section 2 of the Constitution Act, 1889, it was provided that there shall be in place of the Legislative Council then subsisting a Legislative Council and a Legislative Assembly and that it shall be lawful for Her Majesty by and with the consent of the said Council and Assembly to make laws for the peace, order and good Government of Western Australia and its Dependencies and that such Council and Assembly shall, subject to the provisions of that Act have all the powers and functions of the then subsisting Legislative Council:

And whereas it is proper and expedient that further constitutional provision be made to further establish the offices aforesaid and to regulate the powers of the holders of those offices and to confirm the established constitutional provision aforesaid and to regulate the manner and form in which the powers of the Parliament of Western Australia may hereafter be exercised in relation to the offices and powers aforesaid".

Section 73(2)(c) requires that 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" shall not be presented for assent unless the second and third readings have been passed by an absolute majority of both Houses and the Bill has earlier been approved by the electors at a referendum.

In the course of the second reading speech in the Legislative Assembly on the Bill that led to s 73 in its present form, the Premier said that it proposed that any future Bill "which would permit either House to be constituted by members not elected by the electors at large" would have to meet the double requirement of an absolute majority and approval at a referendum ^[F117] . There is no reference in the second reading speech in either House to the decision of this Court in Attorney-General (Cth); Ex rel McKinlay v. The Commonwealth ("McKinlay") ^[F118] . However, given the relative shortness of time between judgment in McKinlay and the introduction of the amending legislation ^[F119] , the legislature can hardly have been unmindful of the decision.

McKinlay concerned a provision of the Commonwealth Electoral Act 1918 (Cth) relating to any proposed distribution of a State into electoral divisions for elections to the House of Representatives. Section 24 of the Australian Constitution provides that the House of Representatives "shall be composed of members directly chosen by the people of the Commonwealth". By majority (Barwick CJ, McTiernan, Gibbs, Stephen, Mason and Jacobs JJ; Murphy J dissenting), the Court held that s 24 did not require the number of people or the number of electors in electoral divisions to be equal. The only difference in the language of s 24 of the Australian Constitution, "directly chosen by the people", and that of s 73(2)(c) of the 1889 Act, "chosen directly by the people", is one of juxtaposition. Therefore the reasoning in McKinlay has a direct bearing on the argument in the present case. Indeed the plaintiffs, while seeking to distinguish McKinlay, were driven as an alternative to asking the Court to overrule that decision. It will be necessary to look at McKinlay in greater detail; for the present it is enough to note that it stands in the way of the plaintiffs' argument that s 73(2)(c) of the 1889 Act itself demands equal value of voting power.

McKinlay may have a further significance. In Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees ^[F120] the Court said:

"There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to [them]' ^[F121] , although the validity of that proposition has been questioned ^[F122] ."

It is true that McKinlay involved consideration of a provision of the Australian Constitution whereas s 73(2)(c) is an enactment of the legislature of Western Australia. Nevertheless the proposition mentioned in Alcan has some force in the present case. Certainly, in Burke v. Western Australia ^[F123] Burt CJ, with whom Smith J agreed, found the judgments of Barwick CJ, Gibbs J, Stephen J and Mason J supportive of the view of s 73(2)(c) that an electoral system whereby members are chosen by electors organised on a geographical basis satisfies the description of members "chosen directly by the people" and that this is so "irrespective of the number of people participating in that choice and irrespective of the ratio that that number may bear to the number participating in the choice of another member in and for another province or district as the case might be" ^[F124] .

Legislative history and statutory construction tell against the plaintiffs' reliance on s 73(2)(c) in one way in which they seek to use it, that is, as directly requiring equality of voting power.

The Acts Amendment (Constitution) Bill ("the First Bill") was introduced to the Parliament on 24 August 1977. The First Bill contained the equivalent to s 73(2)(c) in its present form. The First Bill was defeated in the Legislative Council on 19 October 1977 ^[F125] . In the second reading speech to the First Bill, the "right of electors at large to elect the members of either House" in the 1889 Act seems to be an underlying assumption ^[F126] . However, the First Bill was not seen as making any substantive changes to the 1889 Act, rather as protecting and preserving the existing structures ^[F127] . The purpose of the First Bill was to emphasise the role of the Queen in the Parliament, to preserve both Houses of Parliament, in particular to prevent the abolition of the Legislative Council, and to protect the office of Governor ^[F128] . It was said not to affect the question of redistribution of electoral boundaries per se ^[F129] and not to require a referendum to change them ^[F130] .

At that time, there were considerable differences between the size of electorates ^[F131] and the First Bill was not considered to be establishing the principle of one vote one value ^[F132] . There was only a brief reference to the relevant aspect of cl 73 in the committee stage of the debate on the First Bill ^[F133] and this reference suggests, if anything, that it was part of a scheme to prevent abolition of the Legislative Council. The second Acts Amendment (Constitution) Bill ("the Second Bill") was in the same terms as the first ^[F134] . It was also not seen as affecting the redistribution of electoral boundaries ^[F135] .

The legislative history also suggests that s 73 is a manner and form provision. Certainly s 73(1) is a manner and form provision ^[F136] and it has been read narrowly ^[F137] . Sub-section (2) is also a manner and form provision, rather than any constitutional guarantee in itself. The preamble to the 1978 Act which added s 73(2) states that it is to "regulate the manner and form in which the power of the Parliament of Western Australia may hereafter be exercised".

A guide to the role of s 73(2)(c) in the present proceedings is to be found in a passage in the judgment of Mason CJ, Toohey and Gaudron JJ in Stephens v. West Australian Newspapers Ltd ("Stephens") ^[F138] which reads:

" We do not consider that s 73 provides a foundation for any suggestion that the Western Australian Constitution contemplates the possibility that it will be amended in such a way that representative democracy will be abolished. On the contrary, s 73(2) was plainly enacted with the object of reinforcing representative democracy and placing a further constitutional impediment in the way of any attempt to weaken representative democracy. And, so long, at least, as the Western Australian Constitution continues to provide for a representative democracy in which the members of the legislature are 'directly chosen by the people', a freedom of communication must necessarily be implied in that Constitution".

In other words, the whole of s 73(2) must be seen as a recognition that Western Australia is a representative democracy and as imposing a barrier against any attempt to detract from the elements of that polity as they are identified in the sub-section.

While the passage assumes importance in considering the inferences to be drawn from the 1899 Act itself, it does not carry the plaintiffs as far as they need to go in this aspect of their argument based on s 73(2)(c).

Representative democracy: the approach to be taken

Whatever view be taken of the scope and operation of s 73(2)(c), there is a separate and wider question, namely, whether there is to be found in the 1889 Act a concept of representative democracy which requires an equality of voting power. Thus the statute has two aspects. One looks to s 73(2)(c) for a more specific dictate as to what is required in that respect. The other concerns the implications for representative democracy that may fairly be garnered from the Act as a whole.

To conclude that s 73(2)(c) does not of itself impose on the legislature of Western Australia an obligation to ensure that, within practicable and rational limits, the number of persons eligible to vote in one electorate should be the same as the number eligible to vote in another electorate does not dispose of the wider argument referred to in the preceding paragraph. In Burke v. Western Australia ^[F139] Burt CJ observed:

"It may well be that the distribution of electors in the geographical area will be so unequal as to offend one's notion of fairness or to offend one's understanding of the idea conveyed by the words 'representative democracy', but that is not to say that it offends against the idea of the sub-section".

It is, I think, convenient to approach this part of the plaintiffs' argument by going first to the Australian Constitution to see whether the implication for which the plaintiffs contend is to be found there. If it is not, it is unlikely to be found in the Constitution of Western Australia. If the implication is to be found in the Australian Constitution, a question then arises as to whether that implication thereby operates on the Constitution of Western Australia and, if it does not, whether nevertheless such an implication is to be found in the State Constitution. If the implication is found in the Australian Constitution and thereby operates upon the Constitution of Western Australia or if the implication is to be found in the latter, the plaintiffs have established the basic principle for which they contend.

The Australian Constitution: representative democracy

Recent decisions of the Court have held that the Australian Constitution prescribes a system of representative democracy or representative government. The terms have been used somewhat interchangeably but since it is representative democracy upon which the plaintiffs rely, I shall adhere to that term. The decisions which have given greatest emphasis to this prescription are Nationwide News Pty Ltd v. Wills ("Nationwide News") ^[F140] , Australian Capital Television Pty Ltd v. The Commonwealth ("ACTV") ^[F141] , Theophanous v. Herald & Weekly Times Ltd ("Theophanous") ^[F142] and Stephens ^[F143] . Those decisions necessarily left open the content of representative democracy and they did not touch the particular issues raised by the present application.

Different views have emerged as to the meaning and content of representative democracy. In ACTV ^[F144] , Dawson J said that "much is left to the Parliament concerning the details of the electoral system to be employed in achieving representative democracy ... And, subject to the Constitution, the method of electing members of Parliament and the determination of electoral divisions also rest with the Parliament". However he continued that the Constitution provides for a true choice, in the sense of being an informed choice ^[F145] . His Honour applied McKinlay as only requiring direct popular election ^[F146] and saw the requirements of representative government in the Constitution as minimal ^[F147] . McHugh J considered that the Constitution contains only a requirement of representative government, not the wider notion of representative democracy ^[F148] . Representative government, he said, is "no more than a system under which the people were governed by representatives elected in free elections by those eligible to vote" ^[F149] . McHugh J has taken the view that the conception of representative government at the time of federation is what is relevant ^[F150] .

There are wider conceptions to be found in judgments of this Court. In ACTV Mason CJ said ^[F151] : "The very concept of representative government and representative democracy signifies government by the people through their representatives." This holds the representatives accountable to the people for what they do ^[F152] . Thus the people hold the ultimate sovereignty ^[F153] . In Nationwide News, Deane J and I saw the election of members of Parliament as one way in which the ultimate power of governmental control reserved to the people under the Constitution was exercised ^[F154] . We said ^[F155] , adverting to what was said by McTiernan and Jacobs JJ in McKinlay ^[F156] : "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".

It is one thing to say that the Australian Constitution contains an implication of representative democracy. It is another to give content to that implication. The Court has said that freedom of communication on political matters is an essential requirement of representative democracy. Are there other essential requirements and, in particular, is there one that is relevant to the present case? Clearly, no implication can be drawn in absolute terms. Nor do the plaintiffs seek to do so. Their claim is for a requirement of electoral equality "within practicable and rational limits".

The Australian Constitution does not use the expression representative democracy or, indeed, representative government. Because democracy is a "dynamic phenomenon" ^[F157] , its significance within the Constitution cannot be frozen by reference to the year 1900 or thereabouts. The Constitution must be construed as a living force ^[F158] and the Court must take account of political, social and economic developments since that time. Even before 1900, Garran said that responsible government "as we know it, is a new thing and a changing thing" ^[F159] . And in 1908, though in a different context, O'Connor J said that "it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve" ^[F160] . Similarly, Dixon J said ^[F161] : "it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances".

Another consideration is that whilst the connotation of words in the Australian Constitution remains fixed, their denotation may vary over time ^[F162] . Equally, while the "essential feature" ^[F163] of a concept in the Constitution remains unchanged, the concept is necessarily applied to circumstances different to those which existed at the beginning of this century. The connotation/denotation distinction has traditionally been applied where there have been technological advances ^[F164] . However in Cheatle v. The Queen, a unanimous Court took a somewhat different approach in interpreting the phrase "trial ... by jury" in s 80 of the Constitution. The Court distilled the representative character of a jury as one of the "essential features" of trial by jury ^[F165] . But it noted that the qualifications of jurors had changed since 1900 when only men who satisfied a property qualification were eligible. The Court said ^[F166] : "The exclusion of women and unpropertied persons was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property." It went on to hold that, in 1993, representative juries under s 80 required that women and unpropertied persons be also eligible as jurors ^[F167] .

By parity of reasoning, the essential feature of representative democracy is government by the people through their representatives. " [T]he powers of government belong to, and are derived from, the governed, that is to say, the people" ^[F168] . In 1900, the popular perception of what this entailed was certainly different to current perceptions. For instance, the franchise did not include all, or even a majority, of the population ^[F169] . But according to today's standards, a system which denied universal adult franchise would fall short of a basic requirement of representative democracy ^[F170] . The point is that, while the essence of representative democracy remains unchanged, the method of giving expression to the concept varies over time and according to changes in society. It is the current perception which is embodied in the Australian Constitution. The point was made by McTiernan and Jacobs JJ in McKinlay when they said of s 24 of the Constitution ^[F171] :

" The words 'chosen by the people of the Commonwealth' fall to be applied to different circumstances at different times and at any particular time the facts and circumstances may show that some or all members are not, or would not in the event of an election, be chosen by the people within the meaning of these words in s 24. At some point choice by electors could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree."

Likewise, around 1900 the method of choosing representatives involved significant inequality in voting power. At that time, the ratio between the number of electors in the largest and smallest electorates varied from 2:1 for the Legislative Council of South Australia to 38:1 for the Legislative Assembly of Western Australia. Clearly the expression of representative democracy then did not encompass equality of voting power. But just as clearly, the expression of the concept is now thought to do so, at least in this country. Equality of electorate size, with an allowable percentage variation, is now required for parliamentary elections in the Commonwealth ^[F172] , New South Wales ^[F173] , Victoria ^[F174] , Queensland ^[F175] , South Australia ^[F176] and Tasmania ^[F177] . This move towards equality of electorate size reflects a change in society's perception of the appropriate expression of the concept of representative democracy. As Mason J recognised in McKinlay ^[F178] : "the conception of equality in the value of a vote or equality as between electoral divisions is a comparatively modern development". In its final report the Constitutional Commission concluded ^[F179] : "We believe one vote one value is an essential principle of democracy. It is fundamental to a sense of meaningful participation in Australia's democratic polity."

Once it appears, as recent decisions of the Court make clear, that the Australian Constitution established a system of representative democracy, it is apparent that more is involved than freedom of political communication. In Australian National Airways Pty Ltd v. The Commonwealth ^[F180] Dixon J advised against "pedantic and narrow constructions in dealing with an instrument of government", saying: "I do not see why we should be fearful about making implications". To this Windeyer J added the rider ^[F181] : "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 plaintiffs placed reliance on decisions of the United States Supreme Court which have held that, as nearly as practicable, one person's vote should be worth as much as another person's ^[F182] . However these decisions are based on the intentions of the framers of the American Constitution and have been influenced by the history of that country. For these reasons, several of the Justices in McKinlay ^[F183] held that decisions of that Court provided little guidance in this area of the Australian Constitution. I respectfully agree ^[F184] .

On the other hand, decisions of Canadian courts are more relevant as, like Australia, Canada "adopted and built on the English tradition" ^[F185] . Canadian courts have recognised that the notion of equality is fundamental to the right to vote guaranteed by s 3 of the Canadian Charter of Rights and Freedoms ^[F186] . As Cory J (dissenting), with whom Lamer CJC and L'Heureux-Dub J agreed, said in Reference re: Electoral Boundaries Commission Act ^[F187] :

" [T]he right to vote is fundamental to a democracy. If the right to vote is to be of true significance to the individual voter, each person's vote should, subject only to reasonable variations for geographic and community interests, be as nearly as possible equal to the vote of any other voter residing in any other constituency."

Similarly, McLachlin J, with whom La Forest, Gonthier, Stevenson and Iacobucci JJ agreed, said ^[F188] :

" What are the conditions of effective representation? The first is relative parity of voting power. A system which dilutes one citizen's vote unduly as compared with another citizen's vote runs the risk of providing inadequate representation to the citizen whose vote is diluted."

The principle thus enunciated is not in absolute terms but it follows that a general principle of equal electorates is "a minimal requirement for a representative democracy" ^[F189] . In that event the principle is part of the Australian Constitution, even if not expressed in any provision. It derives from s 24 ("chosen by the people") but more fundamentally from the very structure of the system of government enshrined in the Constitution. In the end it must be accepted that equality of political rights is not achieved "if the vote of a person in one part of the country has a greater effect in securing parliamentary representation than the vote of a person in another part of the country" ^[F190] . The principle cannot be stated in absolute terms because we are speaking of a representative democracy in which each citizen is entitled to be represented in government. The goal is effective representation of all citizens. That precludes absolute parity not only as a matter of practicalities but also for the reason expressed by McLachlin J in the following terms ^[F191] :

"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."

Nevertheless, recognition of these considerations does not detract from the fundamental importance to democracy of the principle itself.

Equality of voting power is an underlying general requirement in the Constitution. To a limited extent it has given way to the requirements for a minimum of five members of the House of Representatives for each State ^[F192] and for equal numbers of senators for each State ^[F193] . The defendant argues that these provisions tell against the principle claimed by the plaintiffs.

This argument can be rejected in relation to the Senate. The Senate is "the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented" and " [t]hat the States, and not the people, are actually represented in the Senate is shown by the requirement that the 'equal representation of the several Original States shall be maintained'." ^[F194]

The argument can also be rejected in relation to the House of Representatives. The provision for a minimum of five members was seen by Barwick CJ and Gibbs J in McKinlay ^[F195] to preclude voting equality. But it is an historical concession to Tasmania and Western Australia which would otherwise have been entitled to only two or three members. This was considered to be an insignificant representation ^[F196] . Other aspects of s 24 support an implication of equality of voting power ^[F197] . In particular, s 24 embraces proportional representation as a general principle; the minimum of five members is merely an exception to this and today it only applies to Tasmania.

As noted earlier, the decision in McKinlay is relied upon by the defendant as an answer to the plaintiffs' case. It is true that the Court (Barwick CJ, McTiernan, Gibbs, Stephen, Mason and Jacobs JJ, Murphy J dissenting) held that s 24 did not require the number of people or the number of electors in electoral divisions under the Commonwealth Electoral Act 1918 (Cth) to be equal. But in my view it is not necessary for the Court to overrule McKinlay in order to accede to the plaintiffs' general argument. McKinlay can be distinguished from the present case.

One suggested basis for doing so is that in McKinlay the plaintiff's argument was for a requirement of absolute equality tempered only by the demands of practicability and that the decision would not be inconsistent with a requirement for a lesser measure of equality, qualified by other considerations ^[F198] . But in McKinlay the plaintiffs' argument was that s 24 demanded, as far as practicable, equality of electorate size ^[F199] ; they were not contending for absolute equality. Even if this distinction was valid, in the present case the plaintiffs couched their claim in terms of a requirement that, within practicable and rational limits, the number of persons eligible to vote for a member in one electorate should be approximately the same as in another electorate. There is no meaningful distinction between the principle claimed in either case. Although the current plaintiffs accepted that other considerations might intrude, these would constitute a qualification on the principle of practical equality.

An important point of distinction is that in McKinlay the Court was examining whether s 24, in particular the phrase "directly chosen by the people", required equality of voting power. Most members of the Court did not examine the requirements of representative democracy. Only Gibbs J and Stephen J looked at the wider question of whether such equality was a necessary aspect of a representative democracy ^[F200] . So while the majority of the Court held that s 24 did not contain a requirement of voting equality, there is no majority decision on whether such a requirement is to be found in the notion of representative democracy which is the underlying basis of the Constitution. In that respect it is important that the decision preceded the recent decisions of this Court concerning representative democracy. It is unnecessary to overrule McKinlay in order to accede to the proposition that a general principle of equality of voting power is an aspect of the Australian Constitution.

Implications for Western Australia

The plaintiffs argue that the organic unity of the Commonwealth and States means that they are inexorably entwined so that an implication of electoral equality in the Australian Constitution will necessarily apply to Western Australia. In Nationwide News Deane J and I spoke of the Constitution's doctrine of representative government as "structured upon an assumption of representative government within the States" ^[F201] . It was unnecessary to explore the implications of this assumption other than in relation to the implied freedom of political discussion.

Some judgments of the Court have treated the implied freedom of political discussion in the Australian Constitution as necessitating a similar freedom at State level. The reason is to be found in the indivisible nature of public discussion and the inter-relationship between the various tiers of government ^[F202] . But it does not follow that, in regard to the electoral process, an implication of equality in the Commonwealth necessitates such an implication in the States.

There are sections of the Australian Constitution that make State electoral laws applicable to Commonwealth elections ^[F203] . Most of these provisions are transitional and permit State electoral laws to be overridden by Commonwealth laws ^[F204] . Section 15, which deals with casual vacancies, comes closest to making a direct connection between the parliaments of the Commonwealth and the States ^[F205] .

Various submissions were presented to the Court by reference to s 15. The plaintiffs argued that the section presupposes that the States will have a system which in a general way corresponds with the Commonwealth system. The Commonwealth argued that the section reflected the assumption that State parliaments are predicated on the same basis as the Commonwealth Parliament. South Australia argued that it is not logically or practically necessary for the preservation of representative democracy at the Commonwealth level that there be representative democracy in the States. Tasmania pointed out that even if State electoral laws did not ensure representative democracy, this would not necessarily affect the working of the Commonwealth Parliament and in any case, the Commonwealth could insulate itself from such laws ^[F206] .

Section 15 has not been interpreted as imposing restrictions upon State parliaments. In particular, it has been held that it does not preclude the abolition of one of the houses of parliament of a State ^[F207] . In Clayton v. Heffron, Dixon CJ, McTiernan, Taylor and Windeyer JJ said ^[F208] :

"The supposition that there will be two Houses implies no intention legislatively to provide that the constitutional power of the State to change to a unicameral system, if the power existed, should cease. One can understand the section being relied upon as evidence that it was not supposed that the power to make the change existed. But that is all. Even that is not a very cogent argument."

This passage was relied on by McHugh J in Theophanous to deny any connection between a requirement of representative democracy in the Commonwealth Parliament and the State parliaments ^[F209] . But, in my view, that is to draw too much from the observations of their Honours which were directed to a different issue.

It is difficult to justify giving s 15 the role contended for by the plaintiffs, given its remedial nature. Even if the replacement senator was chosen by a State parliament which was not a representative government, the effect on representative government at the Commonwealth level would be minimal. As Isaacs J said in Vardon v. O'Loghlin ^[F210] :

" [Section] 15 of the Constitution was not framed with the object of meeting numerous instances of irregular Senate elections, but of providing for possible but rare contingencies of the abnormal termination of the service of senators; so rare that departures from the fundamental principles of representation through popular election would be really inappreciable because infrequent and possibly of short duration".

Section 106 of the Constitution

The plaintiffs argue that the system of representative democracy at the Commonwealth level imposes restrictions on State legislative powers through the operation of s 106 of the Australian Constitution.

Section 106 is in Ch v. of the Constitution - "The States". It 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."

The "States" are identified in covering cl 6 of the Commonwealth of Australia Constitution Act 1900 (UK) as such of the colonies there referred to "as may be admitted into or established by the Commonwealth as States".

It has been said that the provision "has always raised a number of difficult questions concerning the relationship between it and the State Constitutions which it sought to protect, and between those Constitutions and the Commonwealth Constitution as a whole" ^[F211] . In the course of discussing s 106, Quick and Garran comment ^[F212] :

"The States retain their executive, legislative, and judicial departments as before, but shorn of some of their powers and functions."

Certainly the States derive their existence as States from the Australian Constitution ^[F213] . The original source of authority for the legislative power of the States is Imperial legislation but the present source of that power is s 106 ^[F214] . Even so, it does not follow that the plaintiffs' submission is correct.

By reason of s 106, the "Constitution of each State" continues "as at the establishment of the Commonwealth", until altered in accordance with the Constitution of the State, subject, however, to "this Constitution" ^[F215] . The identification of "this Constitution" in s 106 is clear enough. But the scope and operation of s 106 are by no means settled. Historically it has been seen, for the most part, as offering protection to the States against the exercise of Commonwealth power. Thus in Australian Railways Union v. Victorian Railways Commissioners Dixon J expressed the matter more cautiously than other members of the Court when he said ^[F216] :

" It may be that sec 106 provides the restraint upon the legislative power over States which differentiates it from the power over the subject and that no law of the Commonwealth can impair or affect the Constitution of a State."

Section 106 played a significant part in the decision of the Court in Re Tracey; Ex parte Ryan ^[F217] that certain provisions of the Defence Force Discipline Act 1982 (Cth) were invalid. Other decisions treating s 106 as protective of State Constitutions are Attorney-General (NSW) v. Ray ^[F218] and S (a Child) v. The Queen ^[F219] .

The plaintiffs argue that s 106 makes the constitution of a State subject to the Australian Constitution and that therefore, to the extent that an implication of representative democracy is to be found in the latter, it will operate in respect of the former. Prior to Theophanous, the only support for giving s 106 such an operation was from Murphy J in Western Australia v. Wilsmore ^[F220] in holding that a contravention of a State constitution was a contravention of the Australian Constitution. However this does not really support the plaintiffs' argument as Murphy J was dealing with a manner and form requirement in a State constitution; in that respect s 106 asserts the need to comply with the constitution of the State ^[F221] .

In Theophanous there are suggestions that the implied freedom of political communication limits the legislative powers of the States on this aspect through the operation of s 106 of the Australian Constitution ^[F222] . The strongest support comes from Deane J who treated s 107 of the Constitution, which continues the legislative powers of the State parliaments, as a provision to be read with s 106 so that those powers are subject to the Constitution. He placed emphasis on the provision in s 106 that State constitutions continued "subject to this Constitution" and held that State legislative powers were restricted by the freedom of political communication guaranteed by the Australian Constitution.

But even if emphasis is placed on the words "subject to this Constitution", what consequence does this have for State constitutions in relation to equality of voting power as an aspect of representative democracy contained in the Australian Constitution? The words "subject to this Constitution" override a particular aspect of a State constitution in so far as it is contrary to the Australian Constitution ^[F223] . The usual application of this is in the context of State legislative powers, so that State powers are to give way to the requirements of the Australian Constitution ^[F224] .

But it does not follow that an implication of equality of voting power at the Commonwealth level effects, through s 106, an implication of equality of voting power at the State level. The words "subject to" mean "if not inconsistent with or repugnant to" ^[F225] . Any guarantee of voting equality in Commonwealth elections will not be affected by State electoral laws permitting inequality in State elections. In this respect there is no necessary inconsistency between voting inequality at the State level and voting equality at the Commonwealth level. The conduct of State elections will not undermine Commonwealth elections. The implication of freedom of political communication can be distinguished, for it is the nature of such communication that State restrictions may undermine the Commonwealth guarantee. This was a significant factor in Deane J's reasoning in Theophanous ^[F226] . Thus while Deane J relied on s 106 to find that State legislative powers were subject to the implied freedom of political communication, his reasoning does not mean that any Commonwealth guarantee of voting equality translates into a State guarantee of voting equality. Of course, if a provision of a State constitution purported to affect the Commonwealth guarantee of voting equality, it would be overridden through the operation of s 106.

Section 106 does not effect a blanket importation of the Australian Constitution into State constitutions. To interpret s 106 in this way unduly subjects State constitutions to the Australian Constitution at the price of the other stated aims of the section. Its primary aim is to guarantee the continuation of State constitutions after federation ^[F227] , though subject to the Constitution.

Implication of representative democracy in the 1889 Act

However, the concept of representative democracy is to be found in the Constitution of Western Australia. It exists by reason of its similarity in relevant respects to the Australian Constitution and by reason of the elements of representative democracy recognised in s 73(2) of the 1889 Act. The elements in the Australian Constitution which lead to the conclusion that it is predicated on a system of representative democracy are present in the 1889 Act. One element is the vesting of legislative power in the Parliament, consisting of the Queen, the Senate and the House of Representatives ^[F228] . This element is also present in the 1889 Act ^[F229] . Another relevant factor is the requirement of approval by the people for the amendment of the Australian Constitution ^[F230] . In the 1889 Act, there is a requirement of electoral approval, though it does not cover all amendments ^[F231] . In the recent judgments of the Court to which reference has been made reliance was placed upon the control given to the people over the composition of Parliament by ss 7 and 24 ^[F232] .

In Stephens ^[F233] a majority of the Court found that representative democracy was contained in the Western Australian Constitution for the same reasons that it was contained in the Australian Constitution. Emphasis was placed on the phrase "chosen directly by the people" in s 73(2)(c) of the 1889 Act in a provision that "was plainly enacted with the object of reinforcing representative democracy and placing a further constitutional impediment in the way of any attempt to weaken representative democracy" ^[F234] .

One argument to the contrary is that no implications can be drawn from State constitutions because they are subject to amendment. Taken to its extreme, this argument denies the drawing of implications even from entrenched provisions because they can still be changed, even though change is more difficult than for non-entrenched provisions. This argument must be rejected in the light of the decisions of this Court which have found implications in the Australian Constitution, an instrument which can be changed, albeit only by the method laid down in s 128. More generally, implications are drawn from constitutions as they presently stand. It is not to the point that these constitutions may be changed in the future so that the implication ceases to have a valid basis.

The more limited version of this argument is that implications from State constitutions can only be drawn from entrenched provisions. This is subject to the same response just given. But it may have more merit in so far as any implication drawn from non-entrenched provisions may be overridden by legislative amendment. On the other hand, even entrenched provisions may be amended. The validity of this argument does not need to be decided for the purposes of the present case as the relevant provisions of the 1889 Act in which representative democracy can be found are entrenched. Section 73(2) entrenches provisions providing for the Governor, Legislative Council and Legislative Assembly and manner and form requirements.

A further argument is that even if an implication is drawn from a State constitution, it would not have the status to impose a restriction on the plenary legislative powers of the State. This misses the point made in the cases in which an implied freedom of political communication was found in the Australian Constitution. These cases show that the implication operates as an implied restriction and control on legislative powers, not just as an abstract principle.

Justiciability

It is one thing to enunciate equality of voting power as an aspect of representative democracy. It is another to determine whether a particular electoral system is at odds with that principle. It is yet another thing to identify the limits of justiciability in such a situation. What is under challenge here is the validity, indeed the constitutionality, of certain legislative provisions. There can be no question of non-justiciability in that event though the Court must give due recognition that the principle said to have been offended by the provisions in question cannot be asserted in absolute terms and therefore much must be left to the political judgement of the legislature.

Mention has been made of the observation of Burt CJ in Burke v. Western Australia ^[F235] that the distribution of electors may be so unequal as to offend one's understanding of representative democracy. And in McKinlay ^[F236] Mason J said:

" It is perhaps conceivable that variations in the number 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".

Unlike the United States, the Canadian courts appear to have baulked at identifying a ratio beyond which there is such an imbalance as to invalidate the electoral system. It is true that in Dixon v. Attorney-General ^[F237] McLachlin CJSC said:

" [I]t is appropriate to set limits beyond which [equality of voting power] cannot be eroded by giving preference to other factors and considerations, such as the 25% limit applied in Canada to federal electoral districts or the 10% limit established recently in Australia".

Nevertheless, she did not identify the limits which might be set.

The courts must exercise restraint in this area, in particular not seeking in effect to say how boundaries should be drawn or prescribing specific ratios that are acceptable. Clearly there may be room for disagreement as to whether a particular system offends the principle of electoral equality demanded by representative democracy. Indeed the plaintiffs speak of an implied requirement "within practicable and rational limits". It may be said that if the courts do not prescribe limits, the task of legislatures is made more difficult and the scope for challenging an electoral system is inevitably widened. The answer is that an approach in broad terms gives proper recognition to the respective roles of the legislature and the court. The task of the court is to identify and give effect to the constitutional principle at issue.

The attack on the legislation

As a result of the legislation now in force, the Legislative Assembly comprises 57 members (s 18(b) of the 1899 Act). Each member is elected for a single district (s 19(b) of the 1899 Act). Of the 57 members, 34 are returned for districts in the Metropolitan Area ^[F238] and 23 for the remainder of the State (s 6(1) of the 1947 Act).

As at 6 November 1987 (the relevant sections of the 1947 Act came into operation on 30 October 1987) there were 669,293 voters enrolled in the Metropolitan Area and 240,081 voters enrolled in the remainder of the State. This represented 74% and 26% respectively of the total of enrolled voters. Having regard to the number of members constituting the Assembly, this meant that 74% of the voters would elect 60% of the members and 26% of the voters would elect 40% of the members.

In dividing the Metropolitan Area and the remainder of the State into districts, the Electoral Distribution Commissioners are required to ensure that the number of voters in any district must not be more than 15% greater or more than 15% less than the quotient determined by dividing the number of electors in the area by the number of districts (s 6(2) of the 1947 Act).

From this the plaintiffs argue that, assuming a perfect division into electorates within each area, a metropolitan vote is worth 53% of a non-metropolitan vote.

As to the Legislative Council, mention has been made earlier in this judgment of the fact that it comprises 34 members from six regions (s 5 of the 1899 Act). Three regions consist of districts that form the Metropolitan Area. The fourth, the Mining and Pastoral Region, consists of districts "that are remote from the capital and where the land use is primarily for mining and pastoral purposes". The fifth, the Agricultural Region, consists of districts "generally south, or south and west, of and adjacent to the Mining and Pastoral Region". The remaining region is the South West Region. Each region must consist of "complete and contiguous districts" (s 9 of the 1947 Act).

At the time of the 1987 legislation, the effect was that 74% of metropolitan electors would chose 50% of the Legislation Council members while 26% of non-metropolitan electors would chose 50% of the members.

The plaintiffs argue that because of differences in the number of voters in and outside the Metropolitan Area, and having regard to the figures current at the time of the 1989 and 1993 State general elections, the ratios between the highest number of voters in one district of the Legislative Assembly and the lowest in another were 2.52:1 and 2.91:1 respectively. In other words, the numbers of voters in one district were between 252% and 291% of those in another. Likewise, they say, the extremes of ratios of the Legislative Council voters were 3.31:1 and 3.42:1 so that the numbers of voters in one region were between 331% and 342% of those in another. The plaintiffs give colour to their argument by saying that, for example, at the 1993 election the District of Wanneroo contained 291% of the number of voters in the District of Ashburton and that, in terms of current electoral enrolments, the figure is 414%.

The defendant points to the vast area of the State, most of which is thinly populated, and to the difficulties of distance and communication which have the potential to impair effective representation for those who live in the more isolated parts of the State. It argues that to require electorates to be of equal size would result in electorates which were unmanageably large and difficult for the member to service. It argues that these considerations justify the impugned legislative scheme. Its written submissions point to the long history in Western Australia of differentiating between rural and urban electorates. But historical considerations are not conclusive ^[F239] .

The aim of facilitating the representation of those who live in the thinly populated and remote areas of the State is clearly a legitimate one. As McLachlin CJSC said in Dixon v. British Columbia (Attorney-General) ^[F240] :

" [O]nly those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed".

But while the aim is legitimate, it cannot be said that the legislative means chosen are proportionate to the aim. The impugned legislative scheme arbitrarily distinguishes between metropolitan and non-metropolitan areas. It does not tailor electoral divisions to take account of the difficulties faced by the voters in particularly remote areas ^[F241] . The strength of the plaintiffs' argument lies in the fact that the system mandated by the challenged legislative provisions inevitably produces a serious malapportionment between metropolitan and non-metropolitan electors. That malapportionment results in large part from the absence of flexibility in the system which would allow for a movement in population from rural areas to urban centres and otherwise ensure a more fair representation of urban voters. The vice lies in the absence of flexibility, rather than the need to have regard to particular problems of representation affecting non-metropolitan electors. It was the differential treatment of areas on a generalised basis, rather than by reference to the needs of particular electoral districts, that led to the invalidation of the British Columbia legislation in Dixon v. British Columbia (Attorney-General) ^[F242] . It is true that disproportion in the value of a vote may arise in other ways, for instance through the definition of electoral divisions. And this may be deliberate, as in the case of a gerrymander. But these are not issues with which the present proceedings are concerned. It is a particular aspect of representative democracy that the Court is called upon to consider.

Conclusion

It follows that s 6 of the 1899 Act and ss 2A, 6 and 9 of the 1947 Act are together at odds with the principle of representative democracy to be found in the Constitution of Western Australia.

This is not the view of the majority of the Court. In the light of their Honours' reasons the answers they propose to the questions asked are inevitable. If the majority view were otherwise, questions would arise as to the orders the Court should make: whether it should answer the questions in the form asked, whether orders of a declaratory nature should be made, whether any orders should be suspended for a time ^[F243] .

The view I take of representative democracy as found in the Constitution of Western Australia is that it is not a fixed concept but rather is responsive to the time and circumstances in which it falls for consideration. Therefore, rather than answer the questions as asked, it is appropriate to say no more than that if an election were now held for the Legislative Assembly or Legislative Council in accordance with the impugned statutory provisions, the members would not be chosen by the people in accordance with the constitutional dictates of representative democracy.