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

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh
Gummow JJ

Judgment date: 20 FEBRUARY 1996

CANBERRA

Judgment by:
GUMMOW J

The nature of the case

The first and second plaintiffs, Mr McGinty and Mr Gallop, are members elected to the Legislative Assembly of the Parliament of the State of Western Australia and the third plaintiff, Mr Halden, is a member of the Legislative Council of that Parliament. By their action commenced in the original jurisdiction of this Court, they seek declaratory relief as to the invalidity of certain legislation of Western Australia. They complain that, in respect of voting for representatives to either chamber of the Parliament, the legislation brings about a gross malapportionment in favour of non-metropolitan voters.

The matter comes before this Court upon a case stated pursuant to s 18 of the Judiciary Act 1903 (Cth).

A number of recent decisions in this Court, Nationwide News Pty Ltd v. Wills ^[F377] , Australian Capital Television Pty Ltd v. The Commonwealth ^[F378] , Theophanous v. Herald & Weekly Times Ltd ^[F379] , Stephens v. West Australian Newspapers Ltd ^[F380] , and Cunliffe v. The Commonwealth ^[F381] , turned upon or involved some consideration of the consequences, for validity of federal and State statutes and for the continued operation of the common law, of recognition that the federal Constitution and that of Western Australia establish and maintain systems of representative government. The subject matter of the statute law and common law at issue in those decisions was regulation or prohibition with criminal or civil sanction of the publication or dissemination of certain words and visual images. At stake was held to be the efficacious working of the system of representative government. What was not required for these decisions, but is necessary now, is a fuller consideration of those characteristics or elements of an electoral system which must be present to answer a constitutionally mandated system of representative government. In Stephens it was assumed that in Western Australia presently there was in operation such a system ^[F382] . This assumption the plaintiffs now dispute.

The effect of amendments made to the Electoral Distribution Act 1947 (WA) ("the 1947 Act") by the Acts Amendment (Electoral Reform) Act 1987 (WA) ("the 1987 Act") ^[F383] upon representation in the Legislative Assembly has been the creation of electoral districts within the metropolitan zone based on Perth of approximately 23,000 electors plus or minus 15 per cent per electoral district, and in the non-metropolitan zone of approximately 12,000 electors plus or minus 15 per cent. Thus, whilst there is relative equality within the two zones, there is marked difference between them.

Changes made by ss 6 and 7 of the 1987 Act to the Constitution Acts Amendment Act 1899 (WA) ("the 1899 Act") altered the structure of the Legislative Council by providing for six multi-member "electoral regions", three in the metropolitan zone and three in the non-metropolitan zone. The plaintiffs complain that, despite the concentration of the majority of the electors in the metropolitan zone, the distribution of seats is spread evenly between the two zones.

Section 83 of the 1987 Act inserted a new Schedule (headed "Counting Of Votes At Legislative Council Elections") in the Electoral Act 1907 (WA). A system of counting the votes known as the "single transferable vote" is used. A successful candidate for election to the Legislative Council must receive a particular quota of the total valid votes cast. This may be illustrated as follows. In the 1993 general election the quota for the East Metropolitan Region was 32,822. This was determined by dividing the total number of valid votes cast in that region (196,927) by the number of members to be elected (five) plus one, and then adding one vote ^[F384] .

At the last general election, held on 6 February 1993, the ratio of the highest to the lowest quota for election of a member of the Legislative Council, on the basis of the regions, was 3.76:1. The ratio between the largest number of electors in a single region of the Legislative Council and the smallest number of electors in another such region, when divided by the number of members in each of those regions, was 3.42:1. The ratio between the largest number and the smallest number of voters enrolled in each district for the Legislative Assembly at the 1993 general election was 2.91:1.

Put in short form, the plaintiffs' submissions are as follows. First, they contend that, even though a requirement of "one vote one value" is not found in the text of the Constitution, an essential characteristic of the system of representative government established by the Constitution is a franchise conferring "one vote one value". This is to be achieved by the presence of "practical equality", or something close to it, in numbers of electors in electoral divisions. Then it is said that a law prescribing and regulating the federal franchise must not depart from that requirement. Further, the plaintiffs submit that, even if otherwise not an essential characteristic as described, this principle of "one vote one value" is implicit in the very term "directly chosen by the people" in ss 7 and 24 of the Constitution. As the final step, they contend that, by force of the Constitution, the laws of Western Australia which prescribe and regulate the franchise at the State level for each chamber of the legislature must satisfy (but fail to do so) the same requirement of "one vote one value" as is mandated by the Constitution for the laws of the Commonwealth.

In 1975, in Attorney-General (Cth); Ex rel McKinlay v. The Commonwealth ^[F385] , it was held (Barwick CJ, McTiernan, Gibbs, Stephen, Mason and Jacobs JJ; Murphy J dissenting) that s 24 of the Constitution does not require the number of people or the number of electors in electoral divisions for the House of Representatives to be equal. To the extent that this authority bars their path, the plaintiffs seek that it be overruled. They are, somewhat unusually, joined in that endeavour to overthrow a decision in favour of the Commonwealth by the Attorney-General for the Commonwealth, who is an intervener. The Attorney's submission appears to be that the present legislation of the Commonwealth (ss 59 and 73 of the Commonwealth Electoral Act 1918 (Cth) ("the 1918 Act")) sufficiently observes a requirement of "one vote one value", in the sense contended for by the plaintiffs and that this is not merely the work of a benign legislature, but observance of a constitutional imperative.

Alternatively, the plaintiffs rely upon the alleged failure of the 1987 Act to comply with what is said to be the requirement for prior approval by the electors of the State. That requirement was imposed by amendment in 1978 ^[F386] to s 73 of the Constitution Act 1889 (WA) ("the 1889 Act"). The requirement applies (s 73(2)(c)) to a Bill which "expressly or impliedly" provides that either House shall be composed of members other than members "chosen directly by the people". The insertion of sub-s (2) into s 73 was made after the construction given to s 24 of the federal Constitution in McKinlay. Hence, the importance to the plaintiffs, on each branch of the case, in overcoming McKinlay. The plaintiffs submit that the 1987 Act is invalid by reason of contravention of s 73(2) of the 1889 Act and they further submit that the 1987 Act amounted to an attempt to alter the Constitution of the State other than in accordance with that Constitution. In that latter regard, they rely upon s 106 of the federal Constitution.

It may be said that, upon a consideration of any one constituency established under the present Western Australian electoral structure, no one elector has a vote of greater "value" than that of any other elector in that constituency. However, the complaint of the plaintiffs stems from the disparity in the number of electors between constituencies.

Their submissions reflect what was said by Powell J in Davis v. Bandemer ^[F387] :

"The concept of 'representation' necessarily applies to groups: groups of voters elect representatives, individual voters do not. Gross population disparities violate the mandate of equal representation by denying voters residing in heavily populated districts, as a group, the opportunity to elect the number of representatives to which their voting strength otherwise would entitle them. While population disparities do dilute the weight of individual votes, their discriminatory effect is felt only when those individual votes are combined. Thus, the fact that individual voters in heavily populated districts are free to cast their ballot has no bearing on a claim of malapportionment."

In the Legislative Assembly, a consequence of this disparity may be that one representative has required for election the support of more voters than that required for the successful representative in another constituency. Governments are formed from one political party or a coalition of parties so as to command the support of the lower house. The result of this disparity may be (although the State has provided statistics suggesting that this by no means always is so) that to a significant degree the majority comprising members returned who support one major party or a coalition of parties does not correspond to the overall party vote across the State. That state of affairs also may reflect a range of other circumstances, for example, the operation of preferential voting and the failure of each party to field candidates for each constituency. These matters illustrate the point brought out in argument that the significance of the notion of "one vote one value" reflects the concerns of the established political parties as much as any doctrinal solicitude for the true and proper nature of the franchise.

No mention was made in the text of the Constitution of political parties until the substitution of the new s 15 in 1977. Unstable factions had been a significant feature of colonial parliamentary government. For example, in New South Wales, in the years between 1856 and 1887, 23 ministries had been formed with an average life of a little over 16 months ^[F388] . At the time of the adoption of the Constitution these factions were yielding to modern party political structures, with national organisations. Performance of the task of fashioning fully a system of representative self-government, left by many provisions of the Constitution to future Parliaments, fell to legislators subjected to the pressures of party politics. The interests of that party political system and of the established parties in a sense have come to be identified with those of representative government itself.

Experience in the United States demonstrates that to insist, on constitutional grounds, upon equal numbers of electors in constituencies does not necessarily avoid any skewing of the overall party vote away from party representation in the legislature. In Davis v. Bandemer ^[F389] , the majority of the Supreme Court of the United States ^[F390] held that a claim that the boundaries of the constituencies for a bicameral State legislature were distorted so as seriously to dilute or eliminate the voting power of electors affiliated with a particular party raised an issue of equal protection under the Fourteenth Amendment. The Supreme Court rejected the submission that this was a political question and non-justiciable. Other decisions to like effect deal with issues of "racial gerrymander" ^[F391] . Recently, a more restrictive view has been taken as to what is requisite for standing to institute such cases ^[F392] .

In the present case, the plaintiffs eschew any claim of "gerrymander". They rest upon that particular meaning of the principle of "one vote one value" which I have sought to describe above.

Before giving further consideration to the particular legislative provisions whose validity the plaintiffs attack, it is appropriate to refer briefly to the legislative components of the present Constitution of Western Australia.

The Constitution of Western Australia

The Imperial, colonial and State legislation together comprising the written provisions of the Western Australian Constitution, as it then stood, were collected and analysed by Wilson J in Western Australia v. Wilsmore ^[F393] . Then, as now, it was unnecessary to decide whether the Constitution of the State, particularly for the purposes of s 106 of the Australian Constitution, also includes other prerogative instruments or statutory and common law rules and principles which define and regulate the legislative, executive and judicial elements of government ^[F394] . Wilson J described the 1889 Act (which was the scheduled Bill to the Imperial statute, the Western Australia Constitution Act 1890 (Imp) ^[F395] ) as " [t]he keystone of the present constitution of Western Australia" ^[F396] . Further provision was made by the Constitution Act Amendment Act 1893 (WA) but this in turn was repealed by the 1899 Act. The present case principally concerns the construction of the additions to s 73 of the 1889 Act made by s 6 of the 1978 Act. Wilsmore dealt with s 73 in its earlier form ^[F397] .

The constitutional changes made in Western Australia in the last decade of the nineteenth century took place at a time of rapid growth in population, from 48,500 in 1890 to 180,000 by 1900 ^[F398] . At that time neither enrolment nor voting was compulsory. The method of counting votes was that known as "first past the post". In 1893, property qualifications for candidates and voters for the Legislative Assembly were abolished. Women received franchise in 1899 but until 1920 remained ineligible to stand as candidates and, as with men, a property qualification was required for exercise of the franchise in elections for the Legislative Council. In elections for the Council, property owners received one vote for each region in which property of the requisite value was situated. The property qualification and plural voting ordained by s 15 of the 1899 Act were finally abolished by s 8 of the Constitution Acts Amendment Act (No 2) 1963 (WA). The right to vote at State elections was conferred on persons on attaining the age of 18 years by the Electoral Act Amendment Act (No 2) 1970 (WA).

From the commencement of representative government in Western Australia, there were considerable disparities between the number of electors in various constituencies. At the election held for the Legislative Assembly in 1897, of the 44 constituencies, each of which returned one member, one had 54 electors, 27 had less than 500, six had over 1,000 and only one had over 2,000. At the election held in 1900 for the Legislative Council, of the eight constituencies into which the colony then was divided, each of which was represented by three members serving staggered six-year terms, one had just 156 electors, whilst the Metropolitan-Suburban constituency had 3,467 electors.

One of the themes in the submissions to this Court for the State of Western Australia was that the expansion over the last century in the economy and population of Western Australia has been accompanied by legislative changes in the operation of the franchise for both chambers of the Parliament. The consistent tendency of these changes has been to lessen the imbalance between the metropolitan and non-metropolitan vote. Nevertheless, so it is submitted by the State, even though one may accept the concept of "equality of voting power" as understood by the plaintiffs, that cannot be the sole factor to be taken into account in the provision of representative government. Factors such as the geographical expanse of the State, variations in its typography, community interests, difficulty in ready communication between legislators and constituents and the like are said to be significant, and to be given appropriate significance in the legislation under attack, particularly by s 7 of the 1947 Act.

To further consideration of this legislation I now turn.

The State legislation

Section 6 of the 1987 Act inserted a new s 5 in the 1899 Act. Section 5 of the 1899 Act now states:

"The Legislative Council shall consist of 34 elected members who shall be returned and sit for electoral regions as defined under section 6."

Section 7 of the 1987 Act also inserted a new s 6 in the 1899 Act. Section 6 of the 1899 Act now provides:

"(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."

Sections 18 and 19 of the 1899 Act now provide that the Legislative Assembly shall consist of 57 members, each returned by an electoral district provided under the 1947 Act.

The 1987 Act made significant changes to the relevant provisions of the 1947 Act. Section 89 repealed s 2A of the 1947 Act and inserted a new s 2A. Section 2A(2), in the events that since have happened, requires the State to be divided into districts and regions in accordance with the 1947 Act. Section 92 substituted a new s 6. This requires the Electoral Distribution Commissioners to divide the Metropolitan Area (an expression defined in a new s 1A inserted by s 87 of the 1987 Act) into 34 districts (s 6(1)(a)) and to divide the area comprising the remainder of the State into 23 districts (s 6(1)(b)). The new s 6(2) should be set out in full. It states:

"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."

Section 7 of the 1947 Act (also inserted by s 92 of the 1987 Act) specifies various matters to be given "due consideration" by the Commissioners in making the division of the State into regions and districts. These include "community of interest" ^[F399] , "means of communication and distance from the capital", "physical features", "existing boundaries of regions and districts", "existing local government boundaries" and "the trend of demographic changes".

Section 94 of the 1987 Act inserted a new s 9 into the 1947 Act. This now states:

"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."

The plaintiffs claim a declaration that s 6 of the 1899 Act and ss 2A(2), 6 and 9 of the 1947 Act are invalid. More precisely, as I would see it, their allegation is that the provisions of the 1987 Act which repealed the previous provisions of the 1947 Act and the 1899 Act are invalid. That is to say, the plaintiffs' complaint is directed against ss 7, 89, 92 (in so far as it repealed the previous s 6 of the 1947 Act and inserted the new s 6) and 94 of the 1987 Act.

However, the questions which have been reserved on the case stated for the Full Court are:

"(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 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 United States decisions

The plaintiffs place considerable reliance upon what they submitted was authoritative guidance to be found in a series of decisions of the Supreme Court of the United States delivered over the past 30 years. The series commenced in 1962 with Baker v. Carr ^[F400] in which the Supreme Court held that the challenge by the plaintiffs to the Tennessee apportionment legislation of 1901 was within federal jurisdiction and presented a justiciable claim. Previous authority had treated the right to vote, even at federal level, as derived from the States ^[F401] .

The plaintiffs contend that Baker v. Carr and the succeeding decisions give effect to a constitutional principle of equality of voting power. But, upon examination, they provide but limited assistance to the plaintiffs in the present litigation.

At the federal level in the United States, the focus of attention has been congressional districts and the statement in Art 1, s 2 of the Constitution:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." (emphasis added)

Section 4 of Art 1 provides that:

" [t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." ^[F402]

At the State level, the central provision has been the Equal Protection Clause in s 1 of the Fourteenth Amendment made to the Constitution in 1868. This states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added)

Before turning to the decisions, two points should be made. First, the concept or doctrine of representative democracy operates in the United States without compulsory registration of electors or compulsory voting by those so registered, yet at State and local level the range and variety of public offices filled by periodic popular election is far more extensive than has ever been the case in Australia. In the United States, this expands the need for restraint upon legislative interference with freedom of communication on matters relevant to political discussion.

Secondly, the difference between the constitutional base provided at federal and State level, on the one hand, by Art 1, s 2 and, on the other, in the Fourteenth Amendment has contributed to differential treatment by the Supreme Court of the requirement of equality of voting power.

In Wesberry v. Sanders ^[F403] , the Supreme Court pointed out that, as late as 1842, seven States still conducted congressional elections with the State voting as one electorate, so that in such States each vote was worth as much as any of the others; turning to the modern system of division into districts, the Court required the States to draw their congressional districts so that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's". Then, in Kirkpatrick v. Preisler ^[F404] , the Supreme Court held that, in drawing congressional districts for the House of Representatives, a State must "make a good-faith effort to achieve precise mathematical equality". What this meant then became apparent in White v. Weiser ^[F405] . There the Supreme Court rejected a plan in Texas for 24 districts in which the average deviation of all districts from the ideal was 0.745 per cent, the largest district exceeded the ideal by 2.43 per cent and the smallest district was under the ideal by 1.7 per cent ^[F406] .

In the present case, neither the plaintiffs nor those interveners who supported them, including the Commonwealth, advocated any requirement of mathematical precision in the sense demonstrated in the requirements for congressional districts. Indeed, the provision in federal law, s 73 of the 1918 Act, permitting a margin of allowance whereby the quota may be departed from up to one-tenth more or one-tenth less would be unacceptable in the United States.

In the United States at the State level, the principle of one person one vote, flowing from the equal protection clause, does not prevent the election of the governor of a State by the State legislature rather than by direct popular election ^[F407] . Nor is the election of State or local judges subjected to the principle of one person one vote; this is on the footing that, unlike the legislative function of government, the judicial function is to serve the people not by representing them but by administering the law for the benefit of all ^[F408] .

Otherwise, whenever a State or local government decides to select persons by popular election to perform "governmental functions", the Fourteenth Amendment requires giving to each qualified voter an "equal opportunity" to participate in that election; when members of an elected body are chosen from separate districts, each must be established on a basis that will ensure, so far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials ^[F409] . However, it appears that, whilst population alone is the primary criterion, a broader latitude is afforded to the States under the equal protection clause than that which applies at federal level. For example, multi-member legislative districts may be permitted if there are "persuasive justifications" ^[F410] . The result of the decisions upon the Fourteenth Amendment is summarised as follows ^[F411] :

"When the Supreme Court examines population differences in voter districts, the Court will compare the size of the most and least populous districts with the theoretically 'ideal' district. For example, if a city has 5 million people and a city council composed of 5 city council persons, each of whom is elected from a separate geographic area of the city, the ideal population of each district would be 1 million persons. Let us assume that in our hypothetical city the 5 voting districts have populations of: 600,000; 800,000; 1,000,000; 1,200,000; 1,400,000. It would be common for courts (though not mathematicians) to describe the most and least populous districts as each having a 40% variance from the ideal district and the city as a whole having a total variation of 80%. ... [T]he Court has found that a state or local legislative map that has a total deviation of 10% or less does not require special justification by the government. The Court has upheld state and local legislative maps with total deviations of almost 20%, and it allowed one state to provide a guarantee of at least one representative in the legislature for each county."

In Mahan v. Howell ^[F412] , the Supreme Court upheld a legislative apportionment plan of Virginia with a total percentage deviation of 16.4 per cent, one district being over represented by 6.8 per cent and another under represented by 9.6 per cent. On the other hand, in Connor v. Finch ^[F413] , the Supreme Court held that a Mississippi legislative map with maximum deviations of 16.5 per cent for the districts for the upper house and 19.3 per cent for the lower house districts were invalid in part because there had been no demonstration of unique features of the political or governmental structure of the State which would have justified this deviation from voter equality. Finally, in Brown v. Thomson ^[F414] , the Supreme Court upheld a system in Wyoming which guaranteed a representative in its legislature to all 23 counties, including the least populous county in the State, which had a population of 2,924, whilst the ideal county had a population of 7,337.

The effect of these decisions has been described in Rotunda and Nowak, Treatise on Constitutional Law in these terms ^[F415] :

"There will be fewer legitimate reasons for population variances between congressional districts than for variations in state or local legislative districts. States may have more legitimate reasons for wishing to keep voter groups in county or other political subdivisions when voting for state legislative positions. Such political divisions often have political powers as units of local government. States may also wish to guarantee representation to small counties because the state legislative system may act on matters which clearly effect different counties in different ways and in which legislative input from all counties or political subdivisions is important."

If regard is had in this way to the effect of the principle of equality of voting power at all levels in the United States, it will be seen that the result does not favour the present plaintiffs to anything like the degree their submissions suggested.

Further, there are more fundamental reasons why no great weight should be placed upon developments in the United States case law over the last 30 years. Those reasons were, to my mind and with respect, cogently expressed by McLachlin J in her judgments in Dixon v. British Columbia (Attorney-General) ^[F416] , when her Ladyship was Chief Justice of the Supreme Court of British Columbia, and as a member of the Supreme Court of Canada in Reference re: Electoral Boundaries Commission Act ^[F417] .

In the first of these cases ^[F418] , her Ladyship summed up the position as follows:

"In short, the development of Canadian democracy has different roots and has followed a different course than has the American concept of democracy. The rationalist ideals embodied in the French revolutionary slogan 'Liberty, equality and fraternity' dominated the thinking of the founding fathers of the American nation. Whatever the actual practice (slaves did not win the right to vote until 1870), the ideal of equal representation was present from the beginning in the United States. The fact that democracy in the United States sprang from a revolution ushering in a new regime, meant that at least in theory the ideals of equality can be seen as having been embraced from the outset in an absolute fashion, something that never occurred either in England or Canada, where gradual change and accommodation of other factors has been the norm. The historical and philosophical tradition upon which the post-1962 'One Man, One Vote' decisions in the United States are grounded, is absent in Canada. The American jurisprudence cannot be transported into the Canadian legal context without careful consideration and, where necessary, modification."

Earlier in the judgment, after discussion of various of the United States decisions, it was said ^[F419] :

"The American emphasis on a pure population standard for electoral apportionment may be seen as a product of that country's unique history and conception of democracy. The decisions upholding this standard are heavily influenced by the courts' understanding of the intentions of the framers of the US Constitution; indeed in Wesberry v. Sanders ^[F420] , the opinion of the majority of the Supreme Court focused almost exclusively on the debates and values related to pre-constitutional conventions and discussions. Moreover, the recent insistence on voting equality in its pure form may be seen in part, at least, as a reaction to marked and entrenched voting disparities, reflecting an acute departure from the ideals espoused by the founding fathers. In Baker v. Carr ^[F421] , the disparities were as high as 19 to 1 and in Reynolds v. Sims ^[F422] up to 41 to 1, being based on the 1900 census despite massive intervening population growth and urbanization.

Democracy in Canada is rooted in a different history. Its origins lie not in the debates of the founding fathers, but in the less absolute recesses of the British tradition. Our forefathers did not rebel against the English tradition of democratic government as did the Americans; on the contrary, they embraced it and changed it to suit their own perceptions and needs.

What is that tradition? It was a tradition of evolutionary democracy, of increasing widening of representation through the centuries. But it was also a tradition which, even in its more modern phases, accommodates significant deviation from the ideals of equal representation. Pragmatism, rather than conformity to a philosophical ideal, has been its watchword."

In Dixon, reference is made to the position as it then stood in Australia after McKinlay ^[F423] . The Canadian decisions were concerned with the application of the terms of s 3 of the Canadian Charter of Rights and Freedoms, " [e]very citizen ... has the right to vote in an election of members of the House of Commons or of a legislative assembly". The result has been to reject the contention that this requires absolute, or as near as practicable to absolute, equality of numbers of electors within electoral districts. The point of present significance is the emphasis in the Canadian decisions upon the different historical traditions in the United States and Canada which have shaped the concept or principle of representative government.

It should follow from what I seek to show later in these reasons as to the evolution of representative government in Australia that, in this respect, Australia has far more in common with Canada than the United States.

The adaptation of representative government to federalism by the framers of the Constitution

One point of significance for the present case which does emerge from consideration of the United States decisions is the need to consider the doctrine or principle of representative government not at large but in its adaptation to federalism. In Australia, the framers of the Constitution approached their task with this in mind. They performed their task in such a way as to allow room for further legislative evolution in the system of representative government. Constitutional rigidity was, to a significant degree, avoided. But, in a sense, the plaintiffs seek to assert and to rely upon such rigidity. This is imposed, as their submissions would have it, upon the legislature as a matter of necessary implication from the constitutional text, and is to be lifted only by referendum passed under s 128 of the Constitution.

To reject that approach to the case is not to deny that in significant respects the framers of the federal system did leave much to inference ^[F424] .

Responsible government has been said in this Court to be a central feature of the system devised by the framers of the Australian instrument of government ^[F425] . It appears not from express terms so much as from the requirement in the last paragraph of s 64 that a Minister be a member of the Senate or the House of Representatives. Other central features are the separation of the judicial power of the Commonwealth and the doctrine of judicial review of legislative act and executive decision for constitutional validity. These are essential elements of federalism, but again, to a significant degree, the result is to be seen as a matter of necessary inference from consideration of the text and structure of the Constitution ^[F426] .

The Constitution also established for the Commonwealth, and prescribes and gives effect to, a system of representative government. This was accepted by the whole Court in Australian Capital Television ^[F427] .

To adopt as a norm of constitutional law the conclusion that a constitution embodies a principle or a doctrine of representative democracy or representative government (a more precise and accurate term ^[F428] ) is to adopt a category of indeterminate reference. This will allow from time to time a wide range of variable judgment in interpretation and application ^[F429] . That, of itself, may not be open to objection. However, difficulty can arise where the wide range for variable judgment depends upon, or at least includes as a significant element, matters primarily or significantly of political weight and estimation. It is this concern which, at bottom, founds the celebrated dissenting judgments of Frankfurter J in Baker v. Carr ^[F430] and of Harlan J in Reynolds v. Sims ^[F431] .

At the heart of the submissions for the plaintiffs is the significance they seek to attach to the entrenched incidents of representative government, both as established by the Constitution for the new federal government and as, in their submission, carried forward by the Constitution, particularly by s 106, as a requirement for the Constitutions of the respective States. The position which the plaintiffs contend is established as regards the Commonwealth thus is the first, and vital, stepping-stone in their argument on this branch of the case.

However, in approaching the matter in this way, it should be kept steadily in mind that there is a fundamental difference involved in comparison between the system of government created for the Commonwealth and that which obtains for the States. As I have said, in the case of the Commonwealth, it was necessary to adapt notions of representative government to the requirements of federalism as hammered out in forming the federal compact. The framers of the Constitution had before them the systems of government operating in the United States and Canada. It should not be overlooked that, at first hand, they had the example of the failed Federal Council of Australasia. This had been established pursuant to the Federal Council of Australasia Act 1885 (Imp) ^[F432] ("the 1885 Act"). It suffered from the absence of any directly elected legislative arm. The most obvious impact of federalism upon the federal legislature has been in the establishment and composition of the Senate. However, the States have been free to adapt representative government to bicameral or single legislatures without such federal constraints. These considerations suggest, at the outset, the need for some caution in any automatic translation to the States, through the prism of s 106 of the Constitution, of representative government as established for the Commonwealth.

The Constitution was framed against a background of differing mechanisms for the implementation in the Australian colonies of what in each colony would have been regarded as representative government. The minimum age for candidacy for the upper houses in Victoria, Tasmania and South Australia was 30 years as against 21 for all the other chambers. Women were enfranchised only in South Australia and Western Australia and were eligible as candidates only in South Australia. Several States imposed property qualifications upon electors for one or both chambers of the legislature.

From this diversity the challenge was to produce uniformity at the new and federal level. There were two difficult and vital needs. The first was to adapt representative government to the central government of the federation. The second was to achieve this without denying room for further development in the institutions of representative government. These tasks were performed by setting down in the Constitution a variety of prescriptions about parliamentary elections, some of which were entrenched until the Constitution itself might be amended and others which were to prevail only until the Parliament otherwise provided.

The architects of the Australian federation shared an expectation that the federal Parliament would embrace what were then advanced ideas of political representation. The Federal Council of Australasia had not been an elected body. The Canadian Senate (then as now) and the upper houses in New South Wales and Queensland were nominated for life. Nor was the United States Senate then (before the ratification in 1913 of the 17th Amendment) directly elected by the people of the several States. The provisions of ss 7 and 24 of the Constitution providing in the former case that the senators of each State would be "directly chosen by the people of the State" and, in the latter, that members of the House of Representatives would be "directly chosen by the people of the Commonwealth" were thus of contemporary significance.

Learned commentators observing the situation from a vantage point outside Australia wrote of the extremely "democratic" nature of the new Constitution, representing "the high-water mark of popular government" ^[F433] . The Canadian authority, Lefroy, and the British savant, Bryce, noted that the Australian Senate was to be more democratic in its composition than the American Senate which then was elected by the various State legislatures; they regarded as reflecting the same democratic spirit the provision (s 28) that the House of Representatives was to continue only for three years from the first meeting of the House, whereas the Canadian House of Commons continued for five years (British North America Act 1867 (Imp), s 50) ^[F434] . Moreover, the provision in Art v. for amendment of the United States Constitution, unlike that in s 128 of the Australian Constitution, does not require direct participation of the electors at a referendum.

In 1861, John Stuart Mill published his Considerations on Representative Government in which he restated opinions already put forward in articles and essays. Chapter III was headed "That the Ideally Best Form of Government is Representative Government" and contained the passage ^[F435] :

"There is no difficulty in showing that the ideally best form of government is that in which the sovereignty, or supreme controlling power in the last resort, is vested in the entire aggregate of the community; every citizen not only having a voice in the exercise of that ultimate sovereignty, but being, at least occasionally, called on to take an actual part in the government, by the personal discharge of some public function, local or general."

Chapter V, titled "Of the Proper Functions of Representative Bodies", commenced ^[F436] :

"In treating of representative government, it is above all necessary to keep in view the distinction between its idea or essence, and the particular forms in which the idea has been clothed by accidental historical developments, or by the notions current at some particular period.

The meaning of representative government is, that the whole people, or some numerous portion of them, exercise through deputies periodically elected by themselves the ultimate controlling power, which, in every constitution, must reside somewhere. This ultimate power they must possess in all its completeness. They must be masters, whenever they please, of all the operations of government. There is no need that the constitutional law should itself give them this mastery. It does not in the British Constitution. But what it does give practically amounts to this."

Mill continued:

"But while it is essential to representative government that the practical supremacy in the state should reside in the representatives of the people, it is an open question what actual functions, what precise part in the machinery of government, shall be directly and personally discharged by the representative body. Great varieties in this respect are compatible with the essence of representative government, provided the functions are such as secure to the representative body the control of everything in the last resort."

As Mill himself recognised, there is room for divergence between particular structures of government, all of which nevertheless might properly be said to constitute representative government. And, of course, those structures might be modified from time to time whilst still providing for representative government. Some incidents of representative government themselves might change from time to time. Any writer upon the British Constitution, a testimony to the forces of evolution, could not have expected otherwise. Against this background and understanding, the expression "representative government" was used by Mill as a "generic description" ^[F437] of a range of political institutions. These had as their essence the placing of ultimate controlling power with the people, to be exercised by representatives of the people elected periodically in free elections to a legislative chamber or to the more powerful chamber of a bicameral legislature ^[F438] .

Mill acknowledged that his broad ideas required refinement in their application to a bicameral legislature ^[F439] . This also is the case with a constitution which is written and rigid rather than fluid, and in particular with a federal system which includes a bicameral legislature established by a constitution containing its own mechanism for change. In Ch 17 of his work, Mill wrote ^[F440] that the fitting constitution of a federal government included a legislative branch, to the composition of which there might be adapted the general principles of representative government. He regarded the provisions of the American Constitution in this respect as "exceedingly judicious", in particular in the representation in the Senate of each State, whether large or small, by the same number of legislators.

The Convention Debates ^[F441] , and the lengthy debates ^[F442] on the Bill for the Commonwealth Electoral Act 1902 (Cth) ("the 1902 Act") manifest a familiarity on the part of significant figures in the federal movement such as Barton, Deakin, O'Connor, Symon, Downer and Glynn with the writings of Mill, Bryce, Thomas Hare and Jethro Brown and, in Australia, the writings of Professor E J Nanson, Catherine Helen Spence and others. Much of this literature concerned the appropriate method of representation in the legislature, the use of single or multi-member constituencies, "first past the post" voting, preferential voting and proportional representation.

Mr Hare's treatise, The Election of Representatives, was published in 1859 and drew the support of Mill in his work on representative government. The implementation of Hare's theories was to await the introduction by Inglis Clark of a Bill in Tasmania in 1896 ^[F443] . The Hare-Clark system, as it came to be called, was adopted (by regulations made under the Federal Elections Act 1900 (Tas)) for the elections held in March 1901 for the six senators and five members of the House of Representatives.

Mill, Hare and the other writers have been described as idealists who had a continuing influence upon the formulation of electoral laws in Australia ^[F444] . There was concern lest the electoral system fail to afford representation of minority opinion and groups by denying full "value" to the ballot cast by the individual. But there also were pressures of pragmatism. The concern here was with the "value" of the individual vote, not so much to the elector who cast it as to the political party whose candidate it favoured, and fear of "weak government" flowing from a legislature in which there were more than two principal parties represented.

One concludes that at the time of federation issues of "representative government" which concerned the franchise and the electoral system involved questions of political philosophy, of degree, and of experience of practical affairs. Senator Sir Josiah Symon said that John Stuart Mill had supported a great many things which were theoretical and that he should be sorry to accept any of the views of Mill and his supporters "in the face of the opinions of practical politicians" ^[F445] .

Sovereignty

Given the special adaption of principles of representative government to federalism, where in such a case does ultimate sovereignty reside? Writing in 1901, Bryce put the view that, in such a case, ultimate sovereignty resides with the authority or body which, according to the constitution, may amend the constitution ^[F446] .

In Australia, that ultimate authority, to change the Constitution itself, is reposed by s 128 in a combination of a majority of all the electors and a majority of the electors in a majority of States. But the initiative to place before the electors any proposed change is vested in the Parliament and a particular mechanism is provided in s 128 to resolve disagreement between the Houses as to the passage of a proposed law for the alteration of the Constitution. Special provision is made in the final paragraph of s 128 in respect of proposed alterations (i) diminishing the proportionate representation of any State in either House, or the minimum number of representatives of a State in the House of Representatives, (ii) altering the limits of a State, or (iii) "in any manner" affecting the provisions of the Constitution in relation to a State. In such cases, the proposed law effecting the change is not to become law unless approved by the majority of electors voting in the State concerned.

It is to be observed that, in significant respects, s 128 does not provide for an equality of voting power at referendums. A negative power, in other words a power to reject changes, may be exercised by a minority of the total electors of the Commonwealth if that minority is geographically distributed such as to constitute a majority in a majority of States. Again, the electors in a particular State must approve a proposed law affecting that State in the ways outlined above. Thus, a majority of electors in that one State may resist a change otherwise approved by a majority of electors in a majority of States. In both cases the value of each elector's vote is not equal in the sense for which the plaintiffs contend.

Broad statements as to the reposition of "sovereignty" in "the people" of Australia, if they are to be given legal rather than popular or political meaning, must be understood in the light of the federal considerations contained in s 128.

Those statements must also allow for the fact that none of the Australia Acts, Imperial, Commonwealth or State, followed approval at a referendum, in particular, any submission to the electors pursuant to s 128 of the Constitution. Moreover, in s 15 thereof, the Australia Acts provide their own mechanism for amendment or repeal by statute and without submission to the electors at State or Commonwealth level.

Limited entrenchment

In certain respects, the Constitution was drawn so as to give mandatory effect to some elements of representative government. But this was done to answer the perceived needs of a federal structure of government. Section 24 of the Constitution reveals four elements of representative government which were perceived as "essential" to the federal structure - at least in the sense that to change them would require constitutional amendment ^[F447] .

(1) "The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth".

In McKinlay ^[F448] , Gibbs J said that the "obvious purpose" of these words was to ensure that members of the House not be chosen "by some indirect means, such as by the Parliament or Executive Government of a State, or by an electoral college". In the same case, it was said by some members of the majority that this phrase was emphatic of a further factor, that there be a popular election or popular vote ^[F449] , so that a sufficient inequality of distribution of numbers between electoral divisions might mean that there was no choice by the people of the Commonwealth ^[F450] . As I have indicated, the plaintiffs rely upon what was said on this point in McKinlay, and it will be necessary to return to their submissions.

(2) " [T]he number of such members shall be, as nearly as practicable, twice the number of the senators".

The Constitution pegs the number of members of the House of Representatives to the number of senators. Within that limitation the Constitution gives to the Parliament the power to make laws increasing or diminishing the number of senators for each State (s 7), and also the power to make laws for increasing or diminishing the number of members of the House of Representatives (s 27).

(3) "The number of members chosen in the several States shall be in proportion to the respective numbers of their people".

The concern of the framers here was to ensure some equality of voting power by requiring proportionality between the population of each State and the number of members which that State could elect. In other words, as between the populations of each State, there was to be an equality of voting power because the ratio of the number of members chosen in each State to the total number of members was to be the same as the ratio of the population of that State to the total population.

(4)" [F]ive members at least shall be chosen in each Original State".

The framers entrenched a requirement that the electors of each Original State, however small, should choose at least five members for the House of Representatives. The point may be made here that this effectively denied the possibility of "one vote, one value" at federation by arbitrarily boosting the value of votes in the smallest States ^[F451] . (It may also be noted that the second paragraph of s 7 authorises the Queensland Parliament, until the federal Parliament otherwise provides, to divide Queensland into divisions and to determine the number of senators for each division ^[F452] .)

These elements were thought by a majority of delegates to be sufficiently important to justify entrenchment as constitutional requirements. The entrenched matters concerned issues of federalism.

The pegging of the number of members of the House of Representatives to the number of senators was designed to preserve the integrity of the Senate in its relations with the House of Representatives in at least two senses. First, the ratio of members of the House to senators is of crucial significance in the event of any disagreement between the chambers and the engagement of the process laid down in s 57 to resolve such disagreement. Second, there was a perception amongst the delegates that any greater disparity between the number of members of the House of Representatives and senators was inimical to the prestige and standing of the Senate ^[F453] .

The requirement in s 24 that the number of members chosen for each State shall be in proportion to the respective number of its people is evidence of a concern for equality of voting power, but only in the limited sense of interstate equality. This was purely a matter of apportioning the number of members which were to be chosen by the electors of each State. There was no suggestion that, within each State, members were to be chosen from electoral divisions of equal numbers of electors. The concern was one of equality of voting power among States, not among people.

Some further insight is to be gained from a recognition that even those elements, which I have identified as having been deemed sufficiently important to justify constitutional entrenchment, were not universally accepted at the Conventions. There was concerted opposition at Adelaide to the constitutional requirement of a 2:1 ratio between members of the House of Representatives and senators ^[F454] . Opposition to the requirement ^[F455] was based upon a preference for an alternative method of calculating the number of members for the House of Representatives which were to be chosen by the electors of each State. Sir George Turner moved that the requirement of a 2:1 ratio be struck out and replaced with the words "and until the Parliament of the Commonwealth otherwise provides each State shall have one representative for every 50,000 of its people" ^[F456] . This marked a return to the form of the requirement which had passed the Convention in 1891 ^[F457] . It is to be noted that this was only another requirement as to numerical apportionment of the number of members which were to be elected by the population of any one State. It was not a requirement that electoral divisions were to be such that each had 50,000 electors, thus ensuring, on one measure, equality of individual voting power. The issue was one of federalism, not equality.

Some opposition to the constitutional entrenchment of the four matters which I have mentioned was based upon the view that these matters, along with the rest of Pt III of Ch I, were better left to Parliament. For example, in 1897, Mr Deakin said ^[F458] :

"We cannot possibly foresee the future, whether as to the gathering together or the dispersal of population in these colonies, or the division of colonies as they at present exist, nor define where the great and perhaps overwhelming accretions of population will be. Under these circumstances, why lay down an iron rule for changing conditions that will involve great expenditure and great difficulty in order that it may be altered. [sic] We are, as it seems to me, justified, and well justified, in embodying in this Constitution general principles which will relate to the permanent conditions of the Commonwealth, those which will obtain for all time, but this is distinctly a changing condition."

"Directly chosen by the people"

What does appear in ss 7 and 24 of the Constitution is the phrase "directly chosen by the people". However, upon examination, this does not have the general significance sought to be drawn from it by the plaintiffs.

At federation, the upper houses in the colonies of New South Wales and Queensland were nominated for life. Further, the framers of the Constitution had before them the spectre of the failed Federal Council of Australasia. This was despatched into history by covering cl 7 of the Constitution. Sections 5 and 6 of the 1885 Act, repealed by covering cl 7, had provided for each participating colony to be represented by two members to be appointed under provision made by the legislature of that colony. Queensland, Victoria, Tasmania and South Australia provided ^[F459] for appointment by the Governor from members of either chamber of the legislature. In Queensland, where the upper house was a nominated body, representatives might also be selected from those who had been members of either house at some time within the last six months. In Queensland and South Australia, members might also be appointed from the Executive Council, and in Western Australia ^[F460] , which did not then have responsible government, appointment was by the Governor from an unlimited field.

This contemporary background of a perceived deficiency in the structure which the Constitution replaced provides strong support for the conclusion expressed by Gibbs J in McKinlay ^[F461] that the obvious purpose of the opening words of s 24 (as well as the effect of the text) was to deny any method of indirect election by requiring direct selection by popular vote. The same, in my view, is true of s 7, as regards the Senate. In each case the provision strengthened the new federal system by requiring that neither chamber be composed of members selected by or from any legislative chamber of a State or by the executive government of a State or (a remote possibility, given the unsatisfactory experience in the United States) by an interposed electoral college.

The phrase in s 24 "directly chosen by the people of the Commonwealth" is a broad expression to identify the requirement of a popular vote. Section 41 (considered later in these reasons) operated to secure in the federal franchise the female franchise which had been acquired in South Australia and Western Australia. In other respects, the selection of those from among the population who were to be empowered to make the electoral choice was left by s 24 to s 30 of the Constitution. Subject to denial of plural voting, this left the matter at large for provision by the new Parliament. In the meantime, qualification was left to the miscellany of laws in the several States which dealt with elections for the lower houses. Section 29 provided for determination of electoral divisions by the Parliament in substitution for State laws upon the matter.

It follows that, in my view and contrary to that of Murphy J in McKinlay ^[F462] , the phrase in s 24 is not to be dissected in the way the plaintiffs would have it so as to provide a distinct component "chosen by the people", with its own operation above that of s 24 as a whole and independently of ss 29 and 30. It also follows that McKinlay necessarily still stands for the somewhat narrower, or at least discrete, proposition, also negative in nature, that s 24 does not require equality in electoral divisions.

To reject this branch of the plaintiffs' case is not necessarily to reject their broader submission that malapportionment, if sufficiently serious, may deny the system of representative government established for the Commonwealth by the Constitution, taken as a whole. Before further considering that submission, it is appropriate to consider the allowance for the evolutionary nature of representative government made by the Constitution.

"Until the Parliament otherwise provides"

In many respects, the architects of the Constitution "placed great faith in the capacity of the elected senators and members to design statute law for a system of representative self-government, notwithstanding that they would be legislating in their own interest" ^[F463] . But, as a practical matter, it had been necessary to rely upon later provision by the Parliament because, upon many matters concerned with the system of representative government, the framers of the Constitution had been unable to achieve agreement. O'Connor ^[F464] expressed the reality of the situation when, after referring to the "provisional condition of things" contemplated by various provisions of Ch I of the Constitution, he said:

"When we sat in Convention it would no doubt have been more in accordance with the wishes of the delegates, and more in accordance with the proper working of the Constitution, if we could at that time have arrived at some uniform method by which the people of Australia could be represented in the Parliament of Australia. But it was obviously impossible at that time to arrive at any system of the kind; and, therefore, in order that a workable basis for the first Parliament might be created, we adopted the different franchises and methods of the different States and declared that, until the Parliament provided, that should be the working basis of our Constitution."

The point may be illustrated by an example germane to the present litigation. In McKinlay ^[F465] , Mason J said that it was significant that the second paragraph of s 24 of the Constitution made explicit provision for the ascertainment of a quota of people for the specific yet limited purpose of determining the number of members chosen in each State and pointed out that, had it been intended to provide that electoral divisions within a State should contain an equal or practically equal number of people or electors, it was "inconceivable that the quota provision would have been expressed to have such a limited application". In the draft adopted at the 1891 Sydney Convention, cl 24 provided that "until the Parliament of the Commonwealth otherwise provides, each State shall have one Representative for every thirty thousand of its people". That provision did not reappear in the draft brought up to the 1897 Convention and despite debate upon the matter was not reinstated ^[F466] .

Nevertheless, the recurrent phrase "until the Parliament otherwise provides" has a deeper significance. Its effect is to accommodate the notion that representative government is a dynamic rather than a static institution and one that has developed in the course of this century. The accommodation is effected in the Constitution itself by authorising the legislature to make appropriate provision from time to time. It is by this means that the Constitution continues to speak to the present and allows for development of the institution of government by changes which may not have been foreseen a century ago ^[F467] or, if foreseen by some, were not then acceptable generally.

The phrase "until the Parliament otherwise provides" (thereby engaging the head of legislative power in s 51(xxxvi)) appears throughout Pts II, III and IV of Ch I of the Constitution. In respect of the Senate, it appears in s 7 (the people of the State to vote as one electorate until the Parliament otherwise provides and there to be six senators for each original State until the Parliament otherwise provides), s 10 (application to Senate elections of State laws until the Parliament otherwise provides), s 22 (one-third of the whole number of senators to be a quorum until the Parliament otherwise provides). As regards the House of Representatives, the phrase appears in s 24 (determination by a particular method of the number of members chosen in the several States until the Parliament otherwise provides), s 29 (electoral divisions), s 30 (qualification of electors), s 31 (application of State laws to elections for the House), s 34 (qualifications of members), s 39 (quorum in the House of Representatives). Sections 46, 47 and 48 apply to both houses and specify, " [u]ntil the Parliament otherwise provides", particular provisions dealing with penalties for sitting when disqualified, disputed elections and allowances to members. Further, the Parliament was empowered by s 49 to declare the powers, privileges and immunities of the Senate and the House of Representatives and (s 27) the Parliament was authorised to make laws increasing or diminishing the number of members of the House of Representatives. Section 51(xxxvi) empowers the Parliament to make laws with respect to matters in respect of which the Constitution makes provision until the Parliament otherwise provides.

What is of present significance is that, in some provisions of Ch I of the Constitution, express choices were made as to particular incidents of that system of representative government which was to be established for the Commonwealth. I have referred already to the provisions in ss 7 and 24 that each House was to be composed of those "directly chosen by the people" of the State in the case of the Senate, and of the Commonwealth in the case of the House of Representatives. Further, in choosing members of the Parliament, it was ordained that "each elector shall vote only once" (ss 8 and 30). Whilst plurality of voting might today seem anachronistic, it should be noted that it existed at the time of the adoption of the Constitution in the franchises of Tasmania, Queensland and Western Australia ^[F468] and that it lingered in Britain until removed by s 1(2) of the Representation of the People Act 1948 (UK) ^[F469] ("the 1948 Act").

Section 43 rendered a member of one chamber ineligible to be chosen for or to sit in the other chamber; this was founded on the constitutional practice of the Imperial Parliament. The qualifications for a senator were to be the same as those for a member of the House of Representatives (s 16). The disqualification provisions of s 44 rendered certain persons incapable of being chosen or of sitting either as a senator or as a member of the House of Representatives. The method of choosing senators was to be uniform for all the States, whether prescribed by a law of the Commonwealth or by State law (s 9).

An electoral division was not to be formed out of parts of different States (s 29). However, s 29 contemplated laws which would provide for more than one member to be chosen for a division. As late as 1946, in the British House of Commons, 18 constituencies returned two members and one returned three members ^[F470] . Single member constituencies were made necessary in Britain by s 1(1) of the 1948 Act. Section 12 of the 1902 Act provided that one member of the House of Representatives should be chosen in each division. Multi-member constituencies for the lower houses existed in 1900 in Victoria, Queensland, South Australia (where all but two of 27 divisions returned two members) and Tasmania (where Hobart returned six members to a chamber of 30). In the debate on the Bill for the 1902 Act, Senator Sir John Downer and his supporters in the Senate favoured both multi-member constituencies and voting with proportional representation as means of avoiding the tyranny by bare majority and of advancing the interests of those voters who were in the minority ^[F471] . Kingston's Draft Constitution prepared for the 1891 Convention in Sydney had provided in Pt VII for a National Assembly with each district to return two members.

The existence of female franchise in South Australia and Western Australia was, at the federal level, protected by s 41 of the Constitution. The effect of s 41 was that no adult person who, before the establishment of the federal franchise, had acquired a right to vote at a State election was to be prevented by any law of the Commonwealth from voting at elections for either house of the federal Parliament ^[F472] . Further, until the qualification of electors of members of the House of Representatives became uniform throughout the Commonwealth (by reason of the adult franchise conferred by s 3 of the Commonwealth Franchise Act 1902 (Cth)), s 128 provided that in any State with adult suffrage only one-half of electors voting for or against a referendum were to be counted.

However, the Constitution did not entrench the secret ballot, compulsory voting, preferential or proportional voting, nor any universal adult franchise. Nor did the Constitution prescribe any authority or body to determine from time to time the electoral divisions in each State.

Compulsory enrolment for federal elections and for referendums was introduced by s 8 of the Commonwealth Electoral Act 1911 (Cth) and compulsory voting at referendums was introduced by the Compulsory Voting Act 1915 (Cth). Compulsory voting in elections was introduced by s 2 of the Commonwealth Electoral Act 1924 (Cth) and the validity of that law was upheld in Judd v. McKeon ^[F473] . Professor Crisp wrote that both major parties were in favour of the 1924 legislation though neither wished to take overt responsibility for it; hence it was introduced as a private member's bill on which no Minister spoke and no division was called in either House ^[F474] . The Commonwealth Electoral Act 1918 provided (s 124) for the introduction of preferential voting for House of Representatives elections and this was achieved for the Senate by s 7 of the Commonwealth Electoral Act 1919 (Cth). Finally, proportional representation in the Senate was introduced by s 3 of the Commonwealth Electoral Act 1948 (Cth) ^[F475] .

There is considerable force in the recent statement by learned commentators ^[F476] :

"As numerous and as positive in expression as many of these [constitutional] provisions are, they constituted only the bare foundations of the electoral law for the representative Parliament of a new nation. The Constitution, for example, left unspecified, or open to change, a whole range of matters including: the method of voting to elect the members of the respective houses; the question of whether members of the House of Representatives would be elected by single-member or multi-member divisions; the length of time each State would continue to vote as one electorate in electing the Senate; who would be authorised to vote; the question of voluntary or compulsory registration of voters and of voting itself; the control of electoral rolls; the conduct of the ballot; the style of ballot papers; the use of postal votes; limitations on the electoral expenses of candidates; the financial deposits to be made by candidates and the conditions of their forfeiture; the role of political parties at elections; the question of financial support for political parties from public funds; the location of responsibility for the administration of the electoral law; and the extent of the delegation of authority in electoral decision-making."

Representative government and malapportionment

To conclude from an examination of the express provisions of the Commonwealth Constitution that it, or the Constitutions of the States, enshrines or at least adopts some of the principles of representative government is not of any immediate assistance in resolving the specific legal issue with which this case is concerned. This is the alleged invalidity of the legislation pursuant to which the State of Western Australia is divided geographically into districts and regions in such a manner as is said not to give "equal value" to the vote of each elector, whether for the Legislative Assembly or the Legislative Council.

This notion of "equal value" was not, in my view, an essential or inherent feature of the system of "representative government" as understood at federation. It may properly be said (and this Court has held it to be the case) that the Constitution established and continues to prescribe such a system for the Commonwealth (as does the Constitution of Western Australia for that State).

The particular "entrenched" provisions of the Constitution to which I have referred gave effect to the essential character of representative government which Mill had identified. But, as McHugh J pointed out in Theophanous ^[F477] , the Constitution did not specify "the whole apparatus of representative government". As to much of that, it was, as Barton had said in 1891, a case of "trust the parliament of the commonwealth" ^[F478] . The Constitution explicitly proceeds on that footing.

The Australian colonies in 1900 had determined, by various means, the geographical areas and numbers of persons or of electors in the electoral divisions, and none insisted on practical equality in numbers of people or electors in those divisions ^[F479] . The materials in the present case show considerable margins of deviation in those electorates. At that time, in the United Kingdom, there remained substantial inequality between electorates, as Gibbs J pointed out in McKinlay ^[F480] . The legislation in force in New South Wales in 1900 ^[F481] permitted electorates to be larger or smaller than the average quota by a considerable margin. In Victoria in 1901 there were electorates of about 9,000 electors and at least one electorate of 16,000 ^[F482] . Western Australia, as I have indicated earlier in these reasons, presented a stark picture of great extremes.

At the federal level, s 16 of the 1902 Act provided that the quota of electors represented by the division of the whole number of electors in the State by the number of members of the House of Representatives to be chosen in the State was not to be departed from to a greater extent than one-fifth more or less. It should also be noted that the criteria adopted in s 16 of the 1902 Act for the drawing by the Commissioner of boundaries of electoral divisions for the House of Representatives included physical features, means of communication and community or diversity of interest. Thus, from the outset, federal electoral law recognised the point later made with some force by Harlan J in Reynolds v. Sims ^[F483] :

" [P]eople are not ciphers and ... legislators can represent their electors only by speaking for their interests - economic, social, political - many of which do reflect the place where the electors live ... [C]onflicting interests within a State [cannot] be adjusted by disregarding them when voters are grouped for purposes of representation."

It does not follow from the prescription by the Constitution of a system of representative government that a voting system with a particular characteristic or operation is required by the Constitution. What is necessary is the broadly identified requirement of ultimate control by the people, exercised by representatives who are elected periodically. Elements of the system of government which were consistent with, albeit not essential for, representative government might have been constitutionally entrenched or left by the Constitution itself to the legislature to provide and modify from time to time. This is what was done.

Nor if, contrary to what was decided in Leeth v. The Commonwealth ^[F484] , there is a doctrine of the underlying equality of the people of the Commonwealth before the law, would it apply so as to require a different outcome.

Looked at in this way, the task of the plaintiffs then becomes to demonstrate that the voting system of which they complain is so distorted as not to answer the broad identification (which they contend is implicit in the system of representative government established by the Constitution for the Commonwealth and carried by force of the Constitution into the Constitution of the State) of ultimate control by periodic popular election.

To analyse the issues in this case in such a manner is not to deny the important proposition established, as regards the Commonwealth, by Australian Capital Television ^[F485] . This is that legislation otherwise within power will be invalid if it attacks the structure of the government of the Commonwealth by infringing in the requisite sense freedom of communication on matters relevant to political discussion, that freedom being an inherent characteristic of the system of representative government recognised and provided for in the Constitution. Although this principle is capable of limiting the exercise of the legislative powers of the State Parliaments, it is concerned with protection of the governmental structure of the Commonwealth ^[F486] .

The range of provisions in the Constitution which provide for particular incidents of representative government "until the Parliament otherwise provides" and the provision in s 128 for amendment of the Constitution by referendum approved by the electors emphasise the central importance of communication on matters relevant to the efficacious working of the system of representative government established for the Commonwealth. It is hardly to be expected that the Constitution was framed so as to present an impermanent or incomplete statement of the incidents of responsible government on the footing that the Parliament which would make changes and remedy deficiencies perceived from time to time would be composed other than by the representatives of electors who had been free of legislative impediment in informing themselves and in receiving information and comment upon matters of political interest.

I do not regard Australian Capital Television as authority for any wider or more general propositions or principles.

Popular election - the Commonwealth

In this litigation, no challenge is made, and I am far from suggesting that any well-based challenge might be made, to the system of electoral divisions, established by Pt IV (ss 55-78) of the 1918 Act, on the footing that there has been a departure from the broad constitutional requirement of ultimate control of the composition of the House of Representatives by the people of the Commonwealth who exercise their control through the medium of popular elections.

I would accept that the variations in numbers of electors or people in single-member divisions could be so grossly disproportionate as to deny ultimate control by popular election ^[F487] . I would, with respect, also agree with the point made by McTiernan and Jacobs JJ in McKinlay ^[F488] that, when it arises, such a question is to be determined by reference to the particular stage which then has been reached in the evolution of representative government. By way of example, for both Commonwealth and State elections, provision has been made for more than 20 years for 18 as the minimum age for voters ^[F489] . An even plainer example is the now long-established universal adult suffrage. This has become a characteristic of popular election of senators and members of the House of Representatives which could not be abrogated by reversion to the system which operated in one or more colonies at the time of federation. In my opinion, this is so notwithstanding that ss 8 and 30 of the Constitution, subject to the prevention of plural voting, permitted the qualification of electors to be ascertained in that way, until the federal Parliament otherwise provided.

I agree also with the statement by McTiernan and Jacobs JJ in the same passage in McKinlay to the effect that the point at which there ceases to be a system of representative government because there is a failure in ultimate control by periodic popular election involves a question of degree and is one which cannot be determined in the abstract. A particular reason why this is so is provided in Dixon v. British Columbia (Attorney-General) ^[F490] . As I have indicated, McLachlin J was there applying the express provision in s 3 of the Canadian Charter of Rights and Freedoms. Nevertheless, the reasoning by which the Court determined that the British Columbia legislation establishing provincial electoral districts violated s 3 involved steps of present significance.

The first consideration is that the historical development of voting rights in Canada (and I would consider the same was true in Australia) leads to the conclusion that relative equality of voting power may be seen as the dominant principle underlying the system of representative government as it has evolved, so that relative equality in numbers of electors is the single most important factor in determining electoral boundaries ^[F491] . The second, developed in McLachlin J's later judgment in the Supreme Court of Canada in Reference re: Electoral Boundaries Commission Act ^[F492] , is that "representation" comprehends not only a voice in the deliberations of government but also the right to bring one's grievances and concerns to the attention of a local member of the legislature. The third is that relative parity in numbers of electors in electoral divisions may detract from effective representation; to repeat what was said in Reference re: Electoral Boundaries Commission Act ^[F493] :

"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."

Finally, whilst relative parity in numbers remains the single most important concern, determination of whether the legislation in question has, in a given case, operated to deny effective representation in the sense described above, requires recognition by the judicial branch of government that the legislative branch is in a better position to weigh, or to establish specialised administrative bodies to weigh, the various factors which are involved.

In that connection, I turn again to the judgment of McLachlin J in Reference re: Electoral Boundaries Commission Act where her Ladyship said ^[F494] :

"I turn finally to the admonition that courts must be sensitive to practical considerations in interpreting Charter rights. The 'practical living fact', to borrow Frankfurter J's phrase [in Baker v. Carr ^[F495] ], is that effective representation and good government in this country compel those charged with setting electoral boundaries sometimes to take into account factors other than voter parity, such as geography and community interests. The problems of representing vast, sparsely populated territories, for example, may dictate somewhat lower voter populations in these districts; to insist on voter parity might deprive citizens with distinct interests of an effective voice in the legislative process as well as of effective assistance from their representatives in their 'ombudsman' role. This is only one of a number of factors which may necessitate deviation from the 'one person - one vote' rule in the interests of effective representation."

If the particular legislation under challenge establishes a system which requires a specialised body or tribunal to define electoral divisions in a manner which gives effect to these principles, then the legislation itself will not be open to challenge as denying the constitutional requirement for representative government of ultimate control by popular election. Rather, in any given case, it will be a question to be determined by reference to the circumstances of that case whether judicial review is required to ensure that the exercise in the particular case of the authority conferred by the legislature is confined within constitutional limits ^[F496] .

Popular election - the States

That being the position as regards the Commonwealth, the question then is whether, by force of the Constitution, any (and if so what) restraint is imposed upon the legislative power of the States to provide for the manner of representation in their legislatures.

In my view, it is not an acceptable mode of argument to take the present electoral system in Western Australia and contend that it offends some restraint because, if it applied to elections for the House of Representatives (and, semble, the Senate), it would involve such gross disproportion between constituencies as to deny ultimate control by popular election and so entail legislative invalidity. Geographic and demographic factors apply at the national level and the levels of the several States with significant differences in scale and quality. Like is not being compared with like.

In addition, I have already referred to the caution required in translating to the State sphere any doctrine which springs from the adaption of representative government to the legislative branch of the government of the federation. I have also referred to the United States experience which is that the nature of the interests to be represented at State level may be more diverse and more parochial in nature than at the national level. That also, in my view, is true of Australia.

Further, no relevant restraint of the kind contended for by the plaintiffs applies by force of the Constitution to the legislatures of the States in the exercise of their power to provide for methods of voting and apportionment of electors between electoral districts or regions. In dealing further with this aspect of the case, it is necessary to have regard to a number of recent decisions of this Court in order to determine their immediate significance.

In Stephens ^[F497] a majority of the Court expressly accepted that, from the text of the 1889 Act as it now stands, and the system of government for which it provides, there is to be drawn an implication of freedom of communication to discuss "government, governmental institutions and political matters" as Brennan J put it ^[F498] . However, as will appear, that was not the only point on which the case turned.

In Theophanous ^[F499] , the majority of the Court proceeded on the footing (which appears to have been common ground to both the parties and the interveners) that, in the earlier decisions of Nationwide News ^[F500] and Australian Capital Television ^[F501] , this Court had "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" ^[F502] or "of political communication and discussion" ^[F503] . The immediate issue in Theophanous was the applicability of that implication in the Constitution upon the common law and statute law of a State which imposed or defined civil liability for defamation. At the time of the publication in question, which criticised the plaintiff's views on immigration (a matter of federal legislative concern), he was a Member of the House of Representatives and, with other offices, held the chair of the Immigration Committee of the federal Caucus of the Australian Labor Party. Thus, there was no issue for decision in that case which required any conclusion as to extension of a federal constitutional implication to political communication and discussion at the State level.

However, in Stephens ^[F504] , the plaintiffs were members of the Legislative Council of Western Australia and sued for defamation in respect of publication of assertions by another Council member that their overseas study trip was "a rort which is costing taxpayers thousands of dollars". The case did not turn solely upon an implication of freedom of communication derived from the State Constitution. Deane J ^[F505] accepted, for the purposes of that case, the views of the other members comprising the majority (Mason CJ, Toohey and Gaudron JJ). Their Honours ^[F506] considered that "the freedom of communication implied in the Commonwealth Constitution extends to public discussion of the performance, conduct and fitness for office of members of a State legislature". Their Honours referred to judgments in Nationwide News ^[F507] and in Australian Capital Television ^[F508] and to observations in their joint judgment in Theophanous. In that case ^[F509] , their Honours observed:

"The interrelationship of Commonwealth and State powers and the interaction between the various tiers of government in Australia, the constant flow of political information, ideas and debate across the tiers of government and the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament and to its workings make unrealistic any attempt to confine the freedom to matters relating to the Commonwealth government ^[F510] . That said, the question is of little importance in the present case. The publication complained of relates to the views, performance and capacity of the plaintiff as a member of the Commonwealth Parliament".

Thus, various factors, taken together, and involving aspects of contemporary life and experience such as the constant flow of political information, ideas and debate, made it unrealistic or impracticable (but, semble, not impossible) to confine the implied freedom of political discussion to matters relating to the government of the Commonwealth; the result was to require extension of the constitutional principle to political discussion of matters relating to the government of the States.

Three points should be made. The first is that, as McHugh J explains in his judgment in the present case, the process of constitutional interpretation by which this principle was derived (being an implication at a secondary level), and the nature of the implication (which restrains not only the exercise of legislative, executive or judicial power but also what otherwise would be the operation of the general law upon private rights and obligations) departed from previously accepted methods of constitutional interpretation. If it now were sought to apply the principle then the need for further examination of it would arise.

However, and this is the second point, the present case does not involve any such principle of freedom of political discussion, whether derived from the Commonwealth or State Constitution. Rather, as I have indicated, it is concerned with the essential characteristics of the constitutionally mandated system of representative government, albeit that it is in aid of this that the principle of freedom of political communication operates.

The third point is that there is nothing in the federal constitutional structure which renders it unrealistic or impractical to accept that, compatibly with the federal structure, from time to time the doctrine of representative government may have an adaptation to one or more of the States which does not correspond to that for the Commonwealth.

I have referred to various matters which indicate that this is so. They perhaps begin with the position of the Senate as the "States' House" in the constitutional design, and various aspects of s 24 of the Constitution, including the reservation to Tasmania and Western Australia of at least five members of the House of Representatives at federation.

The Constitution was adopted at a time when, in two of the colonies, the upper houses of the legislature were nominated for life. It may also be recalled that, as Quick and Garran put it ^[F511] :

"Queensland was tripartite in interest, the North and the Centre ... looked forward to Federation, not only for its own sake, but also as a step towards subdivision; whilst Brisbane and the South feared that their trade would suffer from open competition with New South Wales and its metropolis."

If the project of dividing Queensland had ever reached fruition, there would seem to have been nothing in the Constitution to prevent, for example, the adaption of the upper house of the Queensland legislature to a body representing the three regional divisions of the State ^[F512] . I have already referred to the accommodation sought to be made in the second paragraph of s 7 of the Constitution, dealing with Senate representation of Queensland, to the internal separation of Queensland into divisions.

As it presently stands, the Constitution, in s 15, recognises, as has become the fact in Queensland, that a State legislature may comprise one chamber only. Thus the first sentence of s 15 now states:

"If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term."

But at no stage has the Constitution contained an implication denying to a State the power to change to a unicameral system, if such power otherwise existed ^[F513] .

On the other hand, the Constitution assumes the continued existence of the office of Governor of a State or other chief executive officer or administrator of the State (ss 12, 15 and 110) and the existence of "the Executive Government" of a State (s 119). Further, Ch III of the Constitution brings the State court system within the ambit of the judicial power of the Commonwealth. It assumes the continued existence of State Supreme Courts and the delivery of judgments, making of orders and decrees, and imposition of sentences, of such a nature as in all instances (subject only to regulation prescribed by the federal Parliament) to be appropriate subject-matter for the exercise by this Court of the judicial power of the Commonwealth in its appellate jurisdiction under s 73 of the Constitution. Section 77 presupposes the existence from time to time and the operation of a system of State courts in original States and in those later admitted into or established by the Commonwealth, the jurisdiction and powers of which under State law are compatible with the exercise of the judicial power of the Commonwealth upon investment by the Parliament with federal jurisdiction with respect to matters of the description in ss 75 and 76 of the Constitution.

Section 107 of the Constitution identifies the powers of what had been the Parliaments of the colonies as they stood at the establishment of the Commonwealth and provided that they would continue as the powers of the Parliaments of the States unless by the Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. Section 108 deals with the saving of laws in force in the colonies before they became States. The Constitution operates, in various provisions ^[F514] , upon the footing that each State, whether an original State or a State formed under s 124, would have a Parliament and accepts that those legislatures may make laws or other decisions (for example, to fill a casual vacancy in the Senate under s 15 or to consent to alteration of limits) which have an immediate effect upon the operation of the political and territorial composition of the Commonwealth and the composition of the federal legislature. Moreover, pars (xxxvii) and (xxxviii) of s 51 empower the Parliament to legislate upon reference or request, or with the concurrence of State Parliaments.

Accordingly, it may fairly be said that the framers of the Constitution accepted the structure of the governments of the colonies as they stood at federation and, in so far as the doctrines of representative government and responsible government were then understood, they were treated as operating in the new States.

Nevertheless, in my view, and whatever otherwise might be the scope of s 106 of the Constitution (as to which it is unnecessary to express any view), there is nothing in the Constitution to bind the States to any particular subsequent stage of evolution in the system of representative government. In the events that have happened, there has been in the several States development at various paces in that component of representative government which is concerned with the importance of relative parity in the distribution of electors between the constituencies from which members of the legislature are selected. No doubt further changes in that process of evolution may be expected from time to time. But, in my view, that has not been and will not be in obedience to any imperative imposed upon State legislatures by the Constitution.

Finally upon this branch of the case it may be noted that, as regards the Commonwealth Parliament, such evolutionary change is contemplated, as discussed earlier in these reasons, by the phrase "until the Parliament otherwise provides". There is thus no entrenchment of a particular method of distribution of electors between electoral districts. The implication which the plaintiffs seek to draw from the Constitution presumably would apply unless varied or abrogated by the steps required by s 128 of the Constitution. Thus, the State would be denied the elasticity specifically allowed the Commonwealth itself.

The legislature of the State of Western Australia

There remains for decision the question whether the submissions of the plaintiffs are to be supported on considerations flowing purely from the constitutional arrangements which exist in the State of Western Australia.

In Stephens ^[F515] , Mason CJ, Toohey and Gaudron JJ observed that the legislature of Western Australia consists of the Sovereign, the Legislative Council and the Legislative Assembly, that both chambers are popularly elected (the members of the Council being elected for electoral regions), and that the electors of members of the Assembly are also the electors of members of the Council. Their Honours then summarised as follows the effect of s 73 of the 1889 Act ^[F516] :

"Section 73 of the Constitution Act 1889 (WA) provides that the legislature of the State 'shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act'. However, it is not lawful to present to the Governor for assent by the Queen ^[F517] :

'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.'

Section 73(2) was inserted into the Constitution by an amendment enacted in 1978. That sub-section further restricts the capacity of the legislature to enact a Bill which expressly or impliedly provides for the abolition of either the Council or the Assembly (s 73(2)(b)) or provides that either House 'shall be composed of members other than members chosen directly by the people' (s 73(2)(c)). The sub-section requires that such a Bill should not be presented for assent unless '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' (s 73(2)(f)) and the Bill has been approved by a majority of electors of the State at a referendum ^[F518] ."

It is common ground that the Bill for the 1987 Act was presented for assent without there having been taken the steps described in s 73(2) of the 1889 Act. Hence, the submission by the plaintiffs on this branch of the case.

Manner and form

Before turning to the construction of s 73(2)(c), it is appropriate first to consider the authority of the legislature which enacted it to control the law-making processes of its successors.

It is necessary to begin with s 5 of the Colonial Laws Validity Act 1865 (Imp) ("the 1865 Act"). So far as relevant, this stated:

" [Every] representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony."

The terms "representative legislature" and "colonial law" were defined respectively in s 1 as signifying "any colonial legislature which shall comprise a legislative body of which one half are elected by inhabitants of the colony" and as including "laws made for any colony either by such legislature as aforesaid or by Her Majesty in Council". It has been observed (by La Forest J) that the reference to "manner and form" appears in the proviso and that s 5 was aimed at validating not invalidating colonial laws ^[F519] , and (by French J) that, while giving colonial legislatures power to alter their constitutions, s 5, paradoxically, also gave them a tool to bind their successors ^[F520] . Observance of "manner and form" has been treated, notably in AG (NSW) v. Trethowan ^[F521] , as a condition upon which the "full power" referred to in s 5 is exercisable.

Section 2(1) of the Statute of Westminster 1931 (Imp) provided that the 1865 Act "shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion", the latter expression including the Commonwealth of Australia but not the States. The Australia Acts, which came into operation on 3 March 1986, amended (by s 14) the 1889 Act, but not in any way presently relevant.

However, s 3(1) of the Australia Acts states:

"The Act of the Parliament of the United Kingdom known as the Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a State."

The result is to remove any ground which might otherwise have existed for the submission that the 1987 Act was invalid for failure to meet any requirement of s 5 of the 1865 Act that its passage should have been in the manner and form required by the 1978 Act.

However, any gap left by the repeal of s 5 of the 1865 Act by s 3(1) of the Australia Acts was then filled by s 6 of the Australia Acts. This states:

"Notwithstanding sections 2 and 3(2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act."

It will be noted that, in contrast to the form taken by the old s 5, s 6 is a direct statement of the mandatory requirement to observe manner and form. In its opening phrase, it is expressed to apply notwithstanding the declaration and enactment in s 2 of plenary legislative competence (save as to preservation of the status quo concerning relations with countries outside Australia) and in s 3(2) of power to repeal or amend Imperial law and to make laws repugnant to the law of England.

Further, it is submitted that the concluding words of s 106 of the Constitution, "until altered in accordance with the Constitution of the State", empower a State Parliament to insert into its Constitution a manner and form requirement, provided it is not inimical to the principles of representative democracy. This produces the result that the double entrenchment effected by s 73 is effective also by force of the statement in s 106 of the Constitution that the "Constitution of each State of the Commonwealth shall, subject to this Constitution, continue".

It may be accepted that the question whether a law of the State was enacted in a manner and form which did not satisfy s 73 would arise under the Australian Constitution, and in particular under s 106 thereof, for the reasons given by Burt CJ in Western Australia v. Wilsmore ^[F522] . This would be because the phrase in s 106 "altered in accordance with the Constitution of the State" recognises or accepts requirements, such as s 73, which otherwise apply to State constitutional changes. Accordingly, the sense of the phrase "altered in accordance with" would be "so altered as not to contravene any otherwise binding requirement". It would be a distinct question whether s 106 goes further so as to create any additional and binding category of restraint upon State constitutional alteration ^[F523] .

There is a conceptual difficulty, to my mind, with the legitimacy of a manner and form requirement which is inserted in a written constitution otherwise than by a law made with observance of that manner and form which is thereafter to apply, or by a law having paramount force. Nevertheless, it is contended, primarily by the Solicitor-General of New South Wales, that there is a principle reflected in Bribery Commissioner v. Ranasinghe ^[F524] that a legislature has no power to ignore the conditions for law making imposed by the instrument which itself confers its power to make that law and that a law which changes those conditions must observe them.

Ranasinghe concerned the then Constitution of Ceylon which was conferred not by Statute of the Imperial Parliament but by The Ceylon (Constitution) Order in Council 1946. This preceded the Ceylon Independence Act 1947 (Imp) ^[F525] . That statute denied the application of the 1865 Act to any law subsequently made by the Parliament of Ceylon but did not contain any equivalent of s 6 of the Australia Acts ^[F526] . The case may stand for the propositions that a manner and form provision which appears in the written constitution of a unitary State where no paramount law, such as s 5 of the 1865 Act, remains in force, continues to place a restraint upon law making, and that the question of the observance of the restraint is justiciable; see Victoria v. The Commonwealth and Connor ^[F527] and West Lakes Ltd v. South Australia ^[F528] . It is unnecessary to resolve the matter in the present case. This is because, as I have indicated, whilst s 2(2) of the Australia Acts declares and enacts that the State Parliaments have plenary legislative power, it is further provided in s 6 that, notwithstanding this provision, manner and form requirements must be satisfied. This express treatment of the subject must leave no room for any greater operation which a principle derived from Ranasinghe might otherwise have had for any Parliament of an Australian State.

Accordingly, in my view, the presently binding effect of s 73 is derived from s 6 of the Australia Acts ^[F529] . It was not, as I understand it, seriously contested first that the Bill for the 1987 Act was one respecting the constitution, powers or procedure of the Parliament of the State, within the meaning of s 6 of the Australia Acts and, secondly, that s 73(2), again within the meaning of s 6, placed a requirement as to manner and form of the making of laws of the description identified in it ^[F530] . In any event, I am prepared to approach the case on the footing that both propositions are satisfied.

Section 73(2)(c) of the Constitution Act 1889 (WA)

The central question then becomes whether, within the meaning of s 73(2)(c), the Bill for the 1987 Act was one which expressly or impliedly provided that either House should be composed of members other than members chosen directly by the people.

In Stephens ^[F531] , Mason CJ, Toohey and Gaudron JJ spoke as follows of s 73(2):

" [Section] 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, just as it is implied in the Commonwealth Constitution, in order to protect the efficacious working of representative democracy and government."

Against that background, there is a certain irony in the submissions now made by the plaintiffs. Plainly, the effect of the 1987 Act was to ameliorate the alleged malapportionment of which they complain. But the effect of their submission is that s 73(2) made it more difficult after 1978 for the legislature to achieve such a result, by placing and doubly entrenching an impediment in the path of the Bill for a statute such as the 1987 Act. The impediment was "doubly entrenched" because par (e) of s 73(2) adds to the list of Bills which require a particular majority in both Houses and submission to referendum a Bill which "expressly or impliedly in any way affects ... [section] 73".

Thus, the submissions for the plaintiffs would achieve a result opposite to that seen in Stephens as the object of s 73(2), namely, the object of placing a constitutional impediment in the way of any attempt to weaken representative democracy.

Further, the legislative intent in enacting s 73(2)(c) was not to affect the question of redistribution of electoral boundaries. This point was made on the second reading speech in the Legislative Council ^[F532] . In the second reading speech on the Bill in the Legislative Assembly, the Premier had identified as one of the objectives of the legislation the forestalling of attempts "to by-pass the right of the electors at large to elect the members of either House" ^[F533] .

It may readily be conceded, and the contrary is not contested, that the Constitution of the State of Western Australia provides for representative government. However, in the absence of any relevant entrenchment, effect is given to that doctrine by a fluid rather than a fixed constitution. In that respect there is a marked difference between the position in Western Australia and that which obtains under the Australian Constitution.

The thrust of the submissions for the State is that this fluidity permits a process of legislative change to the franchise and to the methods for composition of each chamber of the Parliament. There remains the Parliament of the State, the mere continued existence of which says nothing as to the nature of the franchise or the method of representation of the electors in the legislature.

I have referred earlier in these reasons to the taking of various steps over the last century by which the Parliament has pursued a path of change to the franchise and methods of representation. The point may further be illustrated as follows. At the elections for the Legislative Assembly held in 1897, the last before federation, the ratio (defined in the case stated as "the electoral ratio") between the largest number of electors in a constituency and the smallest number of electors in a constituency, divided by the number of members ordinarily returned by the constituencies was 38.52:1. The last election for the Legislative Assembly before the enactment of the 1978 Act took place in 1977. By then there were 55 constituencies, each returning one member, and the electoral ratio was 8.93:1. At the 1993 general election, conducted pursuant to the legislation under challenge in these proceedings, the electoral ratio was 2.91:1.

In Dixon v. British Columbia (Attorney-General) ^[F534] , the Court considered comparable issues by looking at deviations per constituency from a norm representing the average populations for each elected representative. I have earlier referred to the similar method adopted in the United States cases with deviations from "the ideal". The case stated does not give these figures upon an ideal (using either population at large or electors), but it may be supposed that, had it done so, a like trend over the last century would have appeared.

The last election for the Legislative Council held before federation took place in 1900. The electoral ratio was 22.22:1. At the 1977 election for the Legislative Council, the last before the introduction of the 1978 Act, the electoral ratio was 14.79:1, and at the 1993 general election the electoral ratio was 3.42:1.

Counsel for the State submits that the result of acceptance of the submissions for the plaintiffs would be to establish s 73(2)(c) as a barrier to further such development as regards apportionment of constituencies and electoral regions between the electors. This result, so the State contends, will be avoided and effect be given to the true interpretation of par (c) of s 73(2) if it be construed as "entrenching" only so much of the full elements of the system of representative government in the State of Western Australia as provide for popular election of members of each chamber in contrast to a process of nomination by the executive or of indirect election.

These submissions should be accepted. Section 73(2)(c) was not designed to restrict further change after 1978 to what the plaintiffs complain of as electoral malapportionment. The legislation assumed that the constitutional arrangements then in force in Western Australia were those for a representative government. It sought to protect this state of affairs (including the office of Governor, and the preservation of the bicameral legislature) in various respects as specified in s 73(2). But the legislature did not impose a manner and form requirement upon the changes to the electoral system such as those later brought about by the 1987 Act. The phrase "chosen directly by the people" was selected rather than "directly chosen by the people" as it appears in ss 7 and 24 of the Australian Constitution. This emphasises that the phrase is inseverable and conveys the one concept. That is, the entrenchment of the present system of popular selection of legislators by direct vote rather than by other indirect methods.

Conclusion

The questions reserved should be answered:

(i)

No.

(ii)

No.

(iii)

Unnecessary to answer.

The costs of the case stated should be reserved.