Representative Democracy Eclipsed? The Langer,

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1 Representative Democracy Eclipsed? The Langer, Muldowney and McGinty Decisions Nicholas Aroney BA; LLB; LLM. Associate Lecturer in Law, University of Queensland. Earlier this year, the High Court handed down its decisions in McGinty v Western Australia, Langer v Commonwealth of Australia and Muldowney v South Australia. l In those cases, the Court was asked to strike down legislation which was said to be inconsistent with the Commonwealth Constitution for being contrary to the principle of representative democracy implied by the Constitution, and contrary to the guarantee of freedom of political communication derived from the principle of representative democracy. In Langer and Muldowney, the plaintiffs attacked the compulsory preferential voting provisions of the Commonwealth Electoral Act 1918 and the Constitution Act 1934 (SA) as inconsistent with representative democracy and freedom of political communication. In McGinty, the plaintiffs assailed the manner in which the Constitution Acts Amendment Act 1899 and the Electoral Districts Act 1947 (WA) distributed Western Australian electorates for the purposes of State elections. Again, they said that the Acts were invalid as contrary to representative democracy as implied by the Commonwealth Constitution and by the Western Australian Constitution. However, the High Court, somewhat unexpectedly and perplexingly,2 rejected the plaintiffs' arguments in each case, even though they were based on the apparently nascent emphasis which the High Court has of recent years given to representative democracy and freedom of speech. 3 In the Langer decisions,4 freedom of political communication did not save Mr Langer from spending some ten weeks in prison for continuing to encourage people not to express full preferences in their voting after a Supreme- Court order proscribing such conduct; in McGinty, representative democracy did not imply the need for equality of voting power so as to strike down Western Australian electoral legislation which allowed discrepancies in the sizes of electorates of up to 376%, and on current enrolments, apparently as high as 414%.5 - In ACTV, Gaudron J had derived the implication of freedom of political communication from the principle of 'a free society governed in accordance with the principles of representative parliamentary democracy', itself predicated or implied by the constitutional provisions for election of members of the Commonwealth Parliament. 6 On the basis of 'McGinty' (1996) 134 ALR 289; 'Langer' (1996) 134 ALR 400; 'Muldowney' (1996) 136 ALR 18. R Pullan, 'Langer: Justices take a liberty', The Australian, 23 February 1996, 17. In Langer, Dawson J (dissenting) alone held that the legislation in question was invalid, whereas in AC1V, Dawson J (dissenting) was the only judge completely to resist the implied guarantee of freedom of political communication - a remarkable inversion! Australian Capital Television Pty Ltd v Commonwealth ofaustralia (No.2) ('AC1V') (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills ('Nationwide News') (1992) 177 CLR 1; Theophanous v The Herald and Weekly Times Limited (~Theophanous') (1994) 124 ALR 1; Stephens v West Australian Newspapers Limited ('Stephens') (1994) 124 ALR 80; contrasting Cunliffe v Commonwealth ofaustralia ('Cunliffe') (1994) 124 ALR 120. Langer v Australian Electoral Commission (1996) 136 ALR 141 was an appeal against orders made by the Supreme Court of Victoria restraining Langer from publishing material calculated to encourage voters to express less than full preferences for every candidate on the ballot fonn. Langer immediately distributed his pamphlets to journalists outside the court and was subsequently imprisoned for contempt for defying the order: K Lyall, 'Prisoner of the ballot box', The Australian, 23 February 1996, 15. McGinty (1996) 134 ALR 289,293 per Brennan CJ; 331 per Toohey J; 341 per McHugh 1. AC1V (1992) 177 CLR 106, 210 per Gaudron 1.

2 76 Nicholas Aroney these principles, said to be implicit in the Constitution, her Honour had raised the possibility of an implied 'freedom of movement, freedom of association and, perhaps, freedom of speech generally'.7 In the same place she noted that Murphy J had earlier considered that prohibitions of serfdom and slavery, and of cruel and unusual punishments, a guarantee of freedom of movement and the principle of the rule of law were also implied by the Constitution. 8 McHugh J likewise referred to constitutional 'rights of freedom of participation, association and communication', and left open the possibility of a 'general right of freedom of communication in respect of the business of government of the Commonwealth'.9 In tum, in a speech made soon after ACTV and Nationwide News, Toohey J stated that the courts over time might articulate 'the content of limits on power arising from fundamental common law liberties', and that in that sense 'an implied "bill of rights" might be constructed'. 10 These developments precipitated an excited discussion as to how far it would all be taken. ll In basing their decision on a 'generalised' system of representative democracy,12 the Freedom of Speech cases lead a significant number of commentators to speculate as to what further rights could be derived from this concept and actually used by the High Court to strike down recalcitrant legislation. 13 In particular, some observers suggested that representative democracy implies an equality of voting power, so that the size of electoral districts must in fact be as nearly as practicable equal in size - which was precisely the point made by the plaintiffs in McGinty.14 And as early as June 1993, the Court of Disputed Returns was asked to find that aspects of the federal system of compulsory preferential voting were contrary to the principles enunciated in the Freedom of Speech cases. 15 Evidently, the litigants in Langer and Muldowney thought that compulsory preferential voting is inconsistent with representative democracy, since it requires voters to express preferences for candidates for whom they might not wish to vote at all. Moreover, the later cases of Theophanous and Stephens, decided in 1994, seemed only to confmn and extend the application of the generalised concept of representative democracy.16 For a 4:3 majority in those cases, representative democracy in the Commonwealth Constitution, via s 106 of the Constitution, meant that the State legislatures were subject to the implied guarantee of freedom of political communication. A majority also held that the Western Australian Constitution Act, by entrenching the requirement that members of the WA Parliament be 'chosen directly by the people' of the State, itself necessarily implied that the WA Parliament is bound by the implied guarantee. Further, the law of defamation, as drawn from common law and State legislation, was held to be affected by the implied guarantee. So challenges to State and Federal legislation were mounted in Langer, Muldowney and McGinty, essentially relying on the 'new' approach 7 ld 212 per Gaudron J. 8 McGraw-Hinds (Aust) Pty Ltd v Smith ( ) 144 CLR 633, 670 and Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556, AC1V (1992) 177 CLR 106, 227 and 232. But cf Theophanous (1994) 124 ALR 1, Sir John Toohey, 'The End of Democracy?', (1992) (Nov Iss) Australian Law News 7, 10; 'A Government of Laws, and Not of Men?' (1993) 4 Public Law Review Editorial, 'At the Frontiers of Wider Freedom', The Age, 1 October 1992, 13; Editorial, 'A More Activist High Court?', The Sydney Morning Herald, 7 October 1992, L Zines, 'A Judicially Created Bill of Rights?' (1994) 16 Sydney Law Review 166, J J Doyle QC, 'Constitutional Law: At the Eye of the Storm' (1993) 23 University of Western Australia Law Review 15, 27: 'The Court has... opened a door to a house which has many rooms'. 14 For example J Kirk, 'Constitutional Implications from Representative Democracy' (1995) 23 Federal Law Review Muldowney v Australian Electoral Commission (1993) 178 CLR 34; Re The Honourable Justice Sir Gerard Brennan; Ex parte Patrick Kevin Muldowney (1993) 67 AUR But note the forceful dissents of Brennan CJ, Dawson and McHugh JJ. Indeed, in pending cases Levy v Victoria (M042195) and Lange v Australian Broadcasting Corporation (S109/96), the High Court has opened up the possibility of reconsideration of Theophanous and Stephens.

3 Representative Democracy Eclipsed? 77 to the implication of fundamental rights and liberties. However, by with forceful dissents by Brennan CJ, Dawson and McHugh JJ in Theophanous and Stephens, with the departure of Mason CJ and Deane J and with the addition of Gummow J (and since then Kirby J) - there was potential for a significant shift in the 'balance' of the High Court towards a more circumspect use of arguments grounded in the concept of representative government. In fact, in Langer, Muldowney and McGinty the balance decidedly shifted. Is this the eclipse of representative democracy as a constitutional principle capable of generating a whole new realm of democratically grounded constitutional implications? There is still a majority on the High Court bench (constituted by Brennan CJ, Toohey, Gaudron and McHugh IJ) which in AC1V supported the existence of a guarantee of freedom of political communication; and even Dawson J supported the existence of a right to exercise a 'genuine' choice when voting. But, in the light of the recent cases and the shift in the balance of opinion, the nature of that majority must be qualified. In AeTV, Brennan J (as he then was) was prepared to give Parliament a generous 'margin of appreciation' in determining whether a restriction on freedom of political communication could reasonably be regarded as being appropriate and adapted to achieving a legitimate objective, such as the minimisation of political corruption. 1? In the same case McHugh J restricted the operation of the freedom to election periods, and later made clear that his use of the expression 'representative democracy' was intended to mean no more than what ss 1, 7, 24, 30 and 41 of the Constitution directly require. 18 This emphasis on the specific terms of the Constitution, over against a 'free-standing' concept of representative democracy, now seems to have taken the field, only Toohey J and especially Gaudron J resisting this development. 19 And in Langer and Muldowney, even Toohey and Gaudron JJ rejected the plaintiffs' contention that legislation restricting the capacity of people to encourage voters to vote other than by expressing a full preference is inconsistent with representative democracy and freedom of speech as implied by the Constitution. Moreover, Brennan CJ and especially McHugh and Gummow 11 emphasised the degree to which, on account of federalism, the representative provisions of the Constitution require an inequality of voting power, as against the plaintiffs' arguments in McGinty that the Constitution, via representative democracy, requires equality of voting power. Therefore after a careful consideration of the reasoning in the earlier cases one need not be surprised at the conclusions in Langer, McGinty and Muldowney. In fact, the recent cases provide an opportunity to examine this 'emerging' majority, especially as their approaches did not generally receive the kind of attention which they might have had in the aftermath (and euphoria) of the Freedom of Speech cases. In a previous article,2o I noted the irony in the use by an unelected judiciary of the principle of representative government as the basis of the implication of a guarantee of freedom of communication, meaning a limitation of the powers of a democratically elected Parliament, all in the name ofdemocracy. While there are cogent reasons why the courts might be entrusted with the task of protecting individual democratic rights under an express Bill of Rights,21 those reasons have much less force when the courts take it upon themselves to infer the existence of implied rights, and ultimately to produce what amounts to something approximating an implied Bill of Rights - without the direct sanction of the people. 22 The further irony, as if &1' r~ AC1V (1992) 177 CLR 106, 159. Id 231-2; Theophanous (1994) 177 ALR 1, Cf especially Muldowney (1996) 136 ALR 18, 31-2 per Gaudron J. 'A Seductive Plausibility: Freedom of Speech in the Constitution' (1995) 18(2) University of Queensland Law Journal 249. D Feldman, 'Democracy, the Rule of Law and Judicial Review' (1990) 19 Federal Law Review 1; T R S Allan, 'Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism' (1985) 44 The Cambridge Law Journal Ill; J H Ely, Democracy and Distrust (Harvard: Harvard University Press, 1980). Toohey, supra note 10.

4 78 Nicholas Aroney Andrew Fraser observed, is that the 'implied constitutional right to freedom of public discussion both limits the power of the state and simultaneously enhances its power over us' since 'our participation in a judicially sanctified compulsory electoral ritual underwrites the sovereign authority of state and Commonwealth governments to do with us as they will'.23 Moreover, when consideration is given to the extent to which implied doctrines such as representative government and freedom of speech should be used in constitutional adjudication, one often finds that the matter is complicated by the potential application of conflicting implied doctrines. Thus the extent to which representative government is implied by the Constitution runs into the question of how far the implied doctrines of the rule of law and of constitutionalism per se place necessary limits' on that process of implication. The decisions in McGinty, Langer and Muldowney only serve to confmn these ironies and to demonstrate the conflict of fundamental principles which is so often aggravated when the Court grapples (as it must) with the fundamental nature of the Australian constitutional order. In that context, in this paper I will examine, in particular, Dawson J's dissent in Langer, contrasting it with the majority decisions, and will explore in some detail the new-found emphasis on the text of the Constitution, and the implications for the rule of law and constitutionalism which this entails. I will also scrutinise the way in which McHugh and Gummow JJ highlighted what Gummow J called the 'adaptation of representative government to federalism by the framers of the Constitution'. Voting for Tweedledum and Tweedledee: Langer v Commonwealth Introduction Section 329A of the Commonwealth Electoral Act 1918 prohibits the publication of material with the intention of encouraging persons voting at elections to fill in the ballot paper otherwise than in accordance with s 240 of the Act. 24 Section 240 in tum requires voters to indicate exhaustively the order of their preferences for each candidate, by inserting consecutive numbers (eg '1,2,3,4,5' etc) next to each candidate. 25 Thus if there are say five candidates, the system requires voters to allocate their relative preferences for all five candidates. This system is known as full preferential voting, in contrast to partial or selective preferential voting, where voters are able to allocate only so many preferences as they choose. Rather than having to vote '1,2,3,4,5' as under full preferential voting, they could selectively chose to vote '1,2,3,4', '1,2,3', '1,2' or just '1'. Preferential systems can operate whether or not there is more than one representative for a particular electorate. In House of Representative elections, where there is only one representative for each electorate, preferential voting is contrasted to a 'fitst past the post' system, where voters would merely express a single vote (for their preferred candidate). The candidate who receives the largest number of votes simply wins the election, whether or not in the case of contests between more than two candidates the winner receives more 23 A Fraser, 'False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution' (1994) 16 Sydney Law Review 213, Section 329A(l) provides: A person must not, during the relevant period in relation to a House of Representatives election under this Act, print, publish or distribute, or cause, pennit or authorise to be printed, published or distributed, any matter or thing with the intention of encouraging persons voting at the election to fill in a ballot paper otherwise than in accordance with s Section 240 provides: In a House of Representatives election a person shall mark his or her vote on the ballot-paper by: (a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and (b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them.

5 Representative Democracy Eclipsed? 79 than 50% of the vote. One of the strengths of such systems is that elected representatives cannot claim a mandate beyond the actual percentage of the primary vote which they actually receive. The obvious weakness is that in three-cornered contests representatives can be elected with less that 50% of the vote, even in conditions where a majority of voters would have preferred the candidate of their first or second preference to the winner. By contrast, preferential systems allow voters to express their preferences, and they ensure that representatives are elected only if they are the relatively preferred candidate. Coupled with a system of compulsory preference voting, such a system fairly well ensures that in single member electorates elected representatives gain the preferred or relative support of at least more than 50% of voters. But the weakness of the system is that preferential voting may enable representatives to claim mandates which they have not received on the primary vote. A system ofcompulsory voting forces electors to express a choice between candidates when they may actually be disinclined to give either candidate their vote. A system of compulsory full preferential voting forces electors to express preferences among all candidates, when voters may only be inclined to give positive support only to a few, to one or to none of the candidates. During the recent federal election, Me Albert Langer 26 had, with a significant degree of media attention,27 encouraged voters to 'Vote for Neither!', by filling in their ballots '1,2,3,3' or '1,2,3,4,4' as a expression of protest against the major parties, 'Tweedledum and Tweedledee' - and implicitly as an expression of protest against compulsory full preference voting. 28 As Mr Langer pointed out, although contrary to s 240, such a vote would not necessarily be infonnal due to 'saving provisions' contained in para 268(1)(c) and sub-ss 270(2) and (3) of the Act. These provisions in effect enable voters to express their preferences selectively, so that by voting '1,2,3,3' a voter's ballot would be exhausted after the first two preferences ('1,2') were counted, and the latter two numbers ('3,3') would be disregarded. The Australian Electoral Commission successfully sought a Victorian Supreme Court order to prevent Langer from distributing his materia1. 29 But Langer defied the injunction by handing out his leaflets outside the Court, and was promptly sentenced to 10 weeks imprisonment. 30 In considering the nature of the legislation, it is necessary to appreciate that as a whole it did three things. First, by s 240 it 'required' voters to express a full preference vote by indicating sequential preferences for all candidates. Second, by s 329A it penalised any person who promoted voting other than by the expression of a full preference vote. Third, by the 'saving provisions' in ss 268 and 270 it alleviated the effect of failing to do so by maintaining the formality of partial or selective preference voting. The original purpose of the saving provisions was to 'provide a safety net for people who made a genuine mistake in filling out their ballot papers', but the unintended consequence was to enable people intentionally to vote in a selective manner. 31 Following the 1990 Report of the Joint Standing Committee on Electoral Matters, s 329A was inserted to minimise this unintended consequence by imposing a penalty (ofimprisonmentfor up to six months) for encouraging selective preferential voting. It was certainly a heavy handed response. TheCommonwealth Parliament seems to have decided that it is entitled to criminally penalise expressions of i 26 A well known political activist. Cf R v Langer [1972] VR 973 and L W Maher, 'Use and Abuse of Sedition' (1992) 14 Sydney Law Review R Hawes, 'Infonnal vote activist defies court', The Australian, 9 February 1996, 7; K Lyall, 'No family visitors for ailing Langer', The Australian, 20 February 1996, 6; K Lyall, 'Prisoner of the ballot box', The Australian, 23 February 1996, 15; Editorial, The Australian, 23 February 1996, 16; L Johnston, 'Prisoner best on television', The Courier Mail, 28 February 1996, Langer v Australian Electoral Commission (1996) 136 ALR 141, Australian Electoral Commission v Langer [1996] 1 VR Upheld by the Federal Court in Langer v Australian Electoral Commission (1996) 136 ALR Federal Election Report, Joint Standing Committee on Electoral Matters, December 1990, 30.

6 80 Nicholas Aroney opinion intended to persuade people to vote in a way which expresses no preference for particular political candidates and for the parties which sponsor them. Apart from the operation of the saving provisions, the Commonwealth Electoral Act requires voters to express a preference for every candidate. Combined with the institution of compulsory voting in single-member electorates,32 this can often have the effect of giving major parties an apparent electoral support on a two-party preferred basis which they really do not enjoy when only frrst preference votes are taken into consideration. In a specific sense, freedom of speech and compulsory full preferential voting enable governing parties to claim the existence of an electoral mandate the size of which may be significantly exaggerated. 33 To take a cynical view of the system as a whole, one could say that Andrew Fraser's contention (noted above) is confrrmed by the decision in Langer, since the Court's celebrated guarantee of freedom of political communication, and the kind of reasoning upon which it was based, could not be used to de-construct the system of compulsory preferential voting. This view would suggest that the Langer decision is quite consistent with ACTV, since both decisions 'underwrite the sovereign authority of State and Commonwealth governments to do with us as they will'. Langer's arguments In the High Court action, Langer argued that the Commonwealth Parliament lacked power to enact s 329A, relying on the specific fmding and the general approach evinced in the Freedom of Speech cases. He seems to have made three arguments. The frrst and most important was that s 24 of the Constitution, in prescribing that members of the House of Representatives be 'directly chosen by the people of the Commonwealth' in effect means that the representatives are to be elected 'in accordance with the desires or intentions of the electorate', so that s 240 (and with it s 329A) is invalid, since it requires voters to indicate a relative preference for all candidates, whether or not that relative preference reflects their actual desires or intentions.34 Secondly, as McHugh J noted, 'it emerged that, although the question reserved concerns the validity of s 329A, the plaintiffs real concern was the construction and validity of s 240 of the Act'.35 Only McHugh J seems to have addressed the construction of s 240 as a separate (and second) issue. 36 The plaintiff argued that s 240 of the legislation should be construed in a manner consistent with s 24 of the Constitution, so that the requirement to number the 'squares opposite the names of all the remaining candidates'37 means only that one must put some number in all of the squares (with the freedom to repeat the use of particular numbers so as to indicate no preference between particular candidates); not that one must put only consecutive numbers in each of the squares (and so indicate a 32 Single member electorates are especially productive of parliamentary majorities out of proportion to overall popular elector support on a state or nation-wide basis: M Mackerass, 'How Unfair is Queensland's Electoral System?' in S Prasser, R Wear and J Nethercoate, Corruption and Reform: The Fitzgerald Vision (St Lucia: University of Queensland Press, 1990) Jaensch, 'Electoral Systems' and L Smith, 'Compulsory Voting in Australia' in R Lucy (ed), The Pieces of Politics (3rd ed, South Melbourne: Macmillan, 1983); B Costar, 'Electoral Systems' in D Woodward, A Parkin & J Summers (eds), Government, Politics and Power in Australia, (3rd ed, Melbourne: Longman Cheshire, 1985). 34 (1996) 134 ALR 400,430 Per Gummow J. 35 Id 420 per McHugh J, emphasis added. 36 Toohey and Gaudron JJ seemed to hint at it at 415 where they noted that the plaintiff contended that s 240 was invalid to the extent that it requires a full preference to be indicated. 37 S 240, emphasis added.

7 Representative Democracy Eclipsed? 81 preference between all candidates). McHugh J rejected this construction. 38 The other Justices seem to have agreed that s 240 required consecutive numbers. 39 The third argument, 'raised but not pressed,' was that s 329A was invalid because it infringed the guarantee of freedom of political communication. 40 So little did the plaintiff stress this argument that McHugh, Toohey and Gaudron JJ concluded that he did not, in the final analysis, maintain the point. 41 Freedom of speech eclipsed? On the third line of argument, McHugh J held that if s 240 is valid (and he held that it was), s 329A must also be valid. Thus Parliament has power to direct voters to fill in ballot papers by expressing a full order of preference for each candidate; it accordingly has power to punish those who intentionally encourage voters to disregard lawful directions imposed by Parliament. He thought that: There is a world of difference between prohibiting advocacy that is put forward with the intention of encouraging breaches of statutory directions and prohibiting advocacy that criticises or calls for the repeal of such directions. Nothing in s 329A prevents the plaintiff or anybody else from arguing that the system set up by Pt XVIII is unfair, undemocratic, an attack on conscience, or riddled with inconsistencies and absurdities. 42 Implicitly, it appears, Parliament could not prevent people from expressing the latter kind of criticisms. But because Parliament can compel people to vote,43 it can also mandate the form that that vote takes; and it can punish people for advocating voting in a nonprescribed manner. Gummow J said fairly well the same thing, but also thought that Langer's actions were an attempt 'intentionally to undermine the effective franchise by encouraging... the casting by electors of informal votes... thereby denying the effective exercise by those electors of their right to participate in the activity whereby representative government is constituted and renewed'.44 Langer accordingly weakened the efficacy of the system of representative government. This amounts to the view that, so far from inhibiting the system of representative government, s 329A promotes it. It could therefore not be inconsistent with the implied guarantee of freedom of political speech. 45 Brennan CJ, Toohey and Gaudron JJ made explicit the test involved. They said that the implied freedom is not absolute, and that curtailments of freedom of speech can be valid where they can reasonably be regarded as appropriate and adapted to furthering or enhancing the democratic process. 46 Toohey and Gaudron JJ concluded that s 329A can be so regarded, in that it furthers 'full, equal and effective participation in the electoral 38 (1996) 134 ALR 400, per McHugh J. 39 (1996) 134 ALR 400, 402 and 405 per Brennan CJ; per Dawson J; 429 per Gummow J. At 416 Toohey and Gaudron JJ observed that s 240 should be read in the context of the Act as a whole, so that s 240 does not 'oblige a voter to express a preference' for every candidate (emphasis added). Their point was that s 240 should be read in the context of the Act as a whole; not that it should be read down in the light of s 24 of the Constitution as Langer was contending. 40 (1996) 134 ALR 400, 403 per Brennan CJ. 41 Id 423 per McHugh J; 418 per Toohey and Gaudron JJ. 42 Ibid 43 Judd v McKeon (1926) 38 CLR (1996) 134 ALR 400, 431 per Gummow J. 45 Some critics of the decision in ACTV will most likely wince at this conclusion since one of the professed goals of the electronic election advertising ban in that case was in fact to facilitate the better working of the electoral system. See, for example, T D Campbell, 'Democracy, Human Rights, and Positive Law' (1994) 16 Sydney Law Review (1996) 134 ALR 400, 419 per Toohey and Gaudron JJ; per Brennan CJ.

8 82 Nicholas Aroney, process'.47 Brennan CJ thought that s 329A was 'a means of protecting the method which Parliament has selected for the choosing of members of the House of Representatives'.48 A genuine choice ofrepresentatives? Justice Dawson's point ofdeparture. Implicit in these propositions, particularly the one last cited, is a point of statutory construction. On the majority view, s 240 represented a valid exercise of Parliament's constitutional authority to determine the specific means by which the Australian electoral system is to embody the system of representative government generally mandated by the Constitution. Dawson J agreed with the latter part of this proposition. 49 How Dawson J differed from the majority turned on the nature of the system actually prescribed by Parliament. Was it exhausted by the statement of legislative intent contained in s 240 alone, or did it extend to the ameliorating provisions of ss 268 and 270? Dawson J thought that the system prescribed by Parliament was contained, not only in s 240, but also in sub-ss 268(1) ~d 270(2) and (3) - read together. As his Honour noted: In my view, it is an incorrect construction of the Act to say that s 240 alone prescribes the manner in which a formal vote may be cast. 50 If s 240 stood alone, s 329A would be supportable as a protection of the preferential system of voting prescribed by the Act.... However, the method of preferential voting which is established by the Act is that which may be discerned from , 268, 270 and 274 read together. 51 Dawson J's point of departure therefore seems to have been a matter of construction. 52 As his Honour continued, since the Act permits voters intentionally to record a selective preference, 'to prohibit communication of this fact... is to restrict the access of voters to information essential to the fonnation of the choice required by s 24 of the Constitution'.53 As such, Dawson J decided the case on the basis of the guarantee of a 'genuine choice' which he had outlined in AeTV.54 It seems that he thought that whatever the particular electoral system Parliament prescribes, once it has prescribed a system it must abide by it: so that it cannot prohibit a genuine choice from being made within the framework of that system. Since the system, as regards preferential voting, should be read as a whole, and since ss 268 and 270 provide that selective preferential votes can be formal despite s 240, Parliament cannot in s 329A prohibit communications intended to encourage voters to take advantage of that fact. 55 Now in AC1VDawson J had clearly taken the view that when the Constitution expressly provides that representatives in both houses of Parliament shall be 'directly chosen by the people', that choice must mean a 'true' choice. A choice is not a true choice when it is made without an appreciation of the available alternatives or, at least, without an opportunity to gain an appreciation of the available alternatives. It followed, for Dawson J, that 'an election in which the electors are denied access to the information necessary for the exercise of a true choice is not the kind of election envisaged by the Constitution'.56 While in ACTV his Honour did not expressly say that this requirement created a 'guarantee', he seemed to mean as much, since he expressly noted that all of the legislative 47 ld 418 per Toohey and Gaudron JJ. 48 Id 406 per Brennan CJ. 49 Id 410 per Dawson J. 50 Id per Dawson J. 51 Id 411 per Dawson J. Cf Toohey and Gaudron JJ, to different effect. 52 It certainly distinguished Dawson J from Brennan CJ, McHugh and Gummow JJ; and while Toohey and Gaudron JJ adopted fairly well the same construction as Dawson J, they carne to the opposite conclusion on the constitutional issue by emphasising s 240 as the central objective of the legislation. 53 (1996) 134 ALR 400, 411 per Dawson J, emphasis added. 54 ld 410 per Dawson J; AC1V (1992) 177 CLR 106, Id 411 per Dawson J. 56 ACTV (1992) 177 CLR 106, 187.

9 Representative Democracy Eclipsed? 83 powers in s 51 are 'subject to' the Constitution, and they are therefore subject to the implied guarantee of a genuine choice of representatives. In Langer, Dawson J noted that 'the freedom of communication... required by the Constitution [is] confined to what is necessary for the conduct of elections by direct popular vote as envisaged by ss 7 and 24 and related sections'. This contrasted with the majority in AeTV who found 'a constitutionally guaranteed freedom of communication' on the basis of 'a notion of representative government which does not appear from any requirement contained in the constitution itself.57 The way was therefore open for Dawson J to decide Langer by holding that the legislative power in ss 31 and 51(xxxvi) used to enact s 329A is likewise 'subject to' the implied guarantee of a genuine choice. However, his Honour adopted the more restrained course and held that ss 31 and 51(xxxvi) confer a purposive power: 'a power to make laws for the purpose of implementing s 24' of the Constitution. 58 Because the power is purposive, it must be exercised in a manner which is 'reasonably and appropriately adapted to the achievement of an end which lies within power'.59 Having adopted the reasonable proportionality test, the final matter for Dawson J to resolve was whether the legislation was proportionate. It was here that Dawson J differed from the majority in a way which made the crucial difference in the result. His Honour seems to have taken the view that the electoral system thus devised must not prevent the dissemination of information necessary for voters genuinely to exercise the choice of representatives made possible by the entire legislative scheme. The legislation purported to allow the communication of the relevant infonnation provided it was not with the intention of encouraging voting other than in accordance with s 240. But Dawson J thought 'if there is a line' between merely infonning people of the law and encouraging people to take advantage of the law, it was a 'thin one',60 and did not rescue the legislation from invalidity. He concluded that s 329A was invalid. >, IlJ A right not to vote? Dawson J was in the minority in coming to this conclusion. The other Justices with one voice rejected the freedom of speech argument. For them, the case turned more substantially on what appears to have been Mr Langer's primary contention: that s 329A (together with s 240) is invalid because it is contrary to s 24 of the Constitution, which requires that representatives be chosen in accordance with the desires or intentions of the electorate. There seems to have been some confusion in this aspect of the plaintiff's argument. First, as noted, he maintained that s 240 should be read down in the light of s 24 of the Constitution. Second, he argued that the provision in s 24 that members of the House be 'chosen by the people' means that representatives are to be elected 'in accordance with the desires or intentions of the electorate'.61 Accordingly, 'a voter must be free to indicate the candidates which voter does not choose as well as the candidate or candidates which the voter does choose'. Therefore, s 329A 'cannot validly prohibit the encouragement of ':' 57 ~ 58,~, 59 Both citations: (1996) 134 ALR 400, 410 per Dawson J, emphasis added. ld per Dawson J. If the power is not purposive, it seems Dawson J is not prepared to apply the test; rather for him the question is merely then a matter ofsufficient connection between the head of power and the legislation: Nationwide News (1992) 177 CLR 1, 88. ld 411 per Dawson J. This was the ground upon which Mason CJ, Gaudron and McHugh JJ relied in Nationwide News - with the obvious differences, first, that they thought that the reasonable proportionality test applied to all legislative powers and was not confined to ~purposive' ones, and second, that with the possible exception of McHugh J they applied the wider conception of freedom of political communication: Nationwide News (1992) 177 CLR 1, 26-34, 46-53, 69-79, 92-95, ld 409 per Dawson J. 61 ld 430 per Gummow J.

10 84 Nicholas Aroney 1 voters to exercise that right of choice'.62 Another way of putting it was that s 24 'prevents the Parliament from requiring an elector to record a preference for a candidate against whom the voter wished to vote'.63 It would otherwise deny a voter the ability to register an effective choice. 64 On the contrary, Langer contended, a voter 'must be free to indicate the candidates which the voter does not choose as well as the candidate or candidates which the voter does choose'.65 As such, Langer did not expressly challenge compulsory voting per se,66 the validity of which had been upheld in Judd v McKeon in But he most emphatically contested the validity of compulsory preferential voting. The difficulty was that if Parliament had power to impose compulsory voting, why wouldn't it have power to impose preferential voting? If the defect in compulsory preferential voting is that voters are forced to indicate at least some order of preference for candidates against whom they wish to vote, the voter who wishes to vote against all candidates under a system of compulsory voting is 'coerced' into expressing a support for a candidate which he or she wishes to reject. 68 Thus Brennan CJ relied on Judd v McKeon 69 and Faderson v Bridger 70 in concluding that while s 24 of the Constitution requires that Commonwealth electoral legislation leave the voter free to make a choice, it does not require that the voter be 'free to choose the method of voting by which a voter's choice is to be made'.7 1 Parliament has power to prescribe the method of voting, and has done so in s 240. It also has power to enact the saving provisions of ss 268 and 270. In tum, it has power to take reasonably appropriate and adapted measures to prevent the subversion of the methods it validly prescribes. Since s 240 is valid in itself, Parliament can prevent the subversion of the method which s 240 prescribes, even though the saving provisions ameliorate the effect of that section. In tum, s 329A can 'be seen to be a provision appropriate and adapted' to prevent the subversion of the system embodied in the legislation. 72 Thus even though Parliament had adopted a system which maintained the formality of selective preferential voting, it was entitled at the same time to encourage full preferential voting and to penalise with criminal sanctions persons who encourage selective preferential voting. Similarly, Toohey and Gaudron JJ affmned that the requirement that members of Parliament be 'chosen by the people' primarily mandates a 'democratic electoral system'. However, as to the detailed features of that system the only prohibition is of 'any feature that prevents it being said that the Senate or the House of Representatives is, or would, in the event of an election, be composed of persons 'chosen by the people".73 The simple conclusion which followed was that neither a full preferential system (s 240 alone) nor a modified system (ss 240, 268 and 270) failed to meet this test. Indeed, their construction of the entire scheme was, like Dawson J, that s 240 should not be read apart from the context of the Act as a whole, particularly s 270. As such, they considered - unlike McHugh J as we will see - that s 240 should not be construed as obliging a voter to express a full preference vote, due to the ameliorating impact of the saving provisions Jd 403 per Brennan CJ. 63 Jd 422 per McHugh J, emphasis added; 415 per Toohey and Gaudron JJ. 64 Id 416 per Toohey and Gaudron JJ. 65 Id 403 per Brennan CJ, emphasis added. 66 Id per McHugh J. 67 (1926) 38 CLR Of course, in both cases, voters are not coerced into actually voting: the legislation merely requires all registered voters to attend a polling booth; they need not mark the ballot at all. 69 (1926) 38 CLR (1971) 126 CLR (1996) 134 ALR 400, 404 per Brennan CJ. 72 ld 405 per Brennan CJ. 73 Id 417 per Toohey and Gaudron JJ. 74 Id 416 per Toohey and Gaudron J1.

11 Representative Democracy Eclipsed? 85 Their Honours next said that since s 240 is valid, itfollows that the plaintiffs argument against s 329A 'must fail'.75 On these considerations alone, they concluded that s 329A was valid. How could they draw this conclusion without asking whether s 329A was reasonably appropriate and adapted? The answer appears in the plaintiffs argument. The plaintiff might have mounted an alternative argument that, on the basis that s 240 is valid, nevertheless s 329A is disproportionate because it unduly restricts freedom of political communication through the imposition of criminal sanctions. However, it appears that the plaintiff only argued along the lines that s 240 is itself invalid (to the extent that it requires a voter to express a preference for a person against whom he or she would wish to vote); and that s 329A is invalid because it is calculated to support the objectives of s For Toohey and Gaudron JJ, since the plaintiff was unsuccessful on s 240, he had to be unsuccessful on s 329A. Toohey and Gaudron JJ then addressed the question whether the provision infringed the implied freedom of political discussion - even though they took the view that the plaintiff did not argue the point. On this they concluded that although s 329A directly curtails freedom of political discussion, it is justifiable as being reasonably capable of being viewed as appropriate and adapted to furthering the democratic process, since it furthers 'full, equal and effective participation in the electoral process'.77 In deciding this, it is significant that their Honours thought that such full and effective participation entails voting in accordance with s 240. Where s 268 operates to give effect to a ballot-paper which might otherwise be informal, they thought that 'the democratic process is enhanced if a voter's actual intention is capable of ascertainment from the ballot-paper' rather than from an intention which the legislation artificially imputes to the voter. As such, while they more or less agreed with Dawson J's construction of the legislation (ie, in reading ss 240, 268 and 270 as a whole), they found that s 329A was valid by concentrating on s 240 and the intention of the Act of encouraging voters to express full preferences. In this respect, like the other majority justices, they emphasised s 240 as expressing the central objective of the legislation, and they read s 329A as calculated to encourage voters to vote in accordance with s 240 by expressing full preferences. ' McHugh J's analysis of the legislation in substance accorded with that of the Chief Justice - and departed from Dawson, Toohey and Gaudron JJ - in that he concluded that s 240 imposed an obligation to record a full preferential vote, notwithstanding the saving provisions ofss 268 and 270. As such, again taking much the same view as Brennan CJ, McHugh J concluded that s 329A was valid because it had the 'object' of protecting the full preference system of voting prescribed by s In turn, s 240 was valid essentially for the same reason that compulsory voting was held to be valid in Judd v McKeon. In that case, Knox CJ, Gavan Duffy and Starke JJ had noted: In common parlance 'to choose' means no more than to make a selection between different things or alternatives submitted, to take by preference out of all that are available.79 Accordingly, McHugh J considered that the choice of the people mandated by s 24 'is concerned with choices from the list of candidates who offer themselves for election, not the wishes of individual electors'.80 Likewise, Gummow J seems also to have generally followed the same approach to the construction of the legislation: s 240 seeks to achieve the primary object offull preferential voting; ss 268 and 270 are merely ancillary, and 'do not evince any legislative intent to 75 Id 417 per Toohey and Gaudron JI. 76 Id per Toohey and Gaudron JJ. 77 Id 418 per Toohey and Gaudron JJ. 78 Id 422 per McHugh J. 79 Judd v McKeon (1926) 38 CLR 380, (1996) 134 ALR 400, 424 per McHugh J.

12 86 Nicholas Aroney make optional or selective preferential voting available as an alternative'. His Honour held that s 240 was plainly a valid exercise of the legislative power under ss 31 and 51 (xxxvi) of the Constitution to make 'a law relating to elections for members of the House of Representatives'. Moreover, since that legislative power extends to laws which 'regulate the conduct of persons in relation to such elections', s 329A is valid so long as it does not contravene s 24 or the implied guarantee of freedom of political communication. On s 24, Gummow J adopted in substance the same view as McHugh J - that it does not prescribe the 'particular form to be taken by the franchise'.81 And Gummow J, with the other justices, rejected the contention that s 329A was invalid due to the implied guarantee of freedom of political communication. Therefore, in comparing the majority and minority decisions in Langer, one central distinguishing mark seems to be a difference in construction and emphasis. Dawson J's construction of the legislation was quite distinct from that of Brennan CJ, McHugh and Gummow Jl. He read ss 240, 268 and 270 as a whole; they read s 240 on its own - as expressing the central intent and obligation of the legislative scheme. While Toohey and Gaudron JI construed the legislation in a way similar to Dawson J, they nevertheless joined with the majority in emphasising the centrality of s as evincing the legislative intent of encouraging the expression of full preferences. In this light, s 329A was seen by the majority as a reasonable and appropriate means of supporting the central policy of full preferential voting. As Brennan CJ later characterised his decision:... s 240 was construed as the primary method of choosing members of the House of Representatives, s 329A was upheld as a valid protection of the primary method prescribed. 82 Dawson J likewise regarded his dissenting opinion as resting on the necessity that the people have an opportunity to make a 'true choice', a 'choice made with access to the available alternatives', including 'the available means of casting a formal vote'.83 These later characterisations seem to confmn the view that Langer turned on a point of construction and emphasis, rather than an assessment of how far implications from representative democracy can be taken. Voting for 'neither': Muldowney v South Australia The provisions of the Commonwealth Electoral Act considered in lo,nger fmd their counterparts in State electoral legislation. Section 76 of the Electoral Act 1985 (SA) imposes a system of full preferential voting in language effectively equivalent to the corresponding s 240 of the Commonwealth Act. Paragraphs 126(1)(b) and (c) of the South Australian Act likewise make it an offence to advocate publicly 'that a voter should mark a ballot paper otherwise than in the manner prescribed in s 76(1) or (2)' or 'that a voter should refrain from marking a ballot paper issued to the voter for the purpose of voting'. This paralleled the effect of s 329A of the Commonwealth Act. 84 Mr Muldowney85 sought a High Court declaration that ss 76 and 126(1)(b) and (c) were invalid as contrary to freedom of political discussion implied in the Commonwealth Constitution and contrary to a similar freedom implied in the South Australian Constitution. 86 With Mr Langer, he evidently believed that prohibiting the encouragement of voters to part with the compulsory system of full preferential voting was 81 All citations: id 430 per Gummow J. 82 Muldowney (1996) 136 ALR 18,23, emphasis added. 83 Id 26, emphasis added. 84 Id 23 per Brennan CJ; 33 per Gaudron J. 85 Also see Muldowney v Australian Electoral Commission (1993) 178 CLR 34; Re The Honourable Justice Sir Gerard Brennan; Ex parte Patrick Kevin Muldowney (1993) 67 ALJR (1996) 136 ALR 18,22 per Brennan CJ.

13 Representative Democracy Eclipsed? 87 unconstitutional. There should be freedom to encourage electors to vote for neither of the major political parties, by declining to express a voting preference for either.87 The Solicitor-General for South Australia conceded that the entrenched provisions of the State Constitution contain an implication of representative govemment. 88 Therefore, the primary defences to the plaintiff's arguments were that the Commonwealth implication was inapplicable to State electoral systems, and that, in any case, ss 76 and 126 did not infringe any implied guarantee of freedom of political communication. The High Court, following Langer, unanimously accepted these defences and rejected Muldowney's arguments. Even Dawson J upheld the legislation, noting that on the proper construction of the South Australian system - unlike the Commonwealth system - there was no altemative to full preferential voting allowed. 89 As to s 76, the plaintiff's argument was premised on the proposition that s 76 'dominates the Act' and places a requirement on the voter 'actually to cast a vote even though that vote might be not in accordance with what the elector would like to do'.90 However, Brennan Cl, Gaudron, McHugh and Gummow Jl considered that it did not impose any enforceable obligation on an elector to mark a ballot paper. For Brennan CJ, s 76, when read with s 94(1)(b), merely meant that a breach of the direction in s 76 rendered the ballot paper informal. 91 For Gummow J (with whom McHugh and Gaudron JJ agreed), when s 76 was read with ss 61, 79 and 85, the voter was not under any obligation actually to mark the ballot paper, but only to 'observe the formalities of voting'.92 On such a construction, there was no ground upon which s 76 could be invalid. On the other hand, Dawson and Toohey JJ held that s 76 was valid because it was within the powers of the South Australian Parliament to institute a system of compulsory full preferential voting. 93 Sections 11 and 27 of the South Australian Constitution Act 1934 provide that members of the Parliament shall be elected by the inhabitants of the State legally qualified to vote. Dawson J thought that this was effectively equivalent to the requirement in ss 7 and 24 of the Commonwealth Constitution because: they provide for elections by inhabitants eligible to vote and elections necessarily require a choice to be made by voters. And a choice is nevertheless a choice notwithstanding that a voter is required to make it against his wishes. 94 Thus a compulsory system of full preferential voting complies with both the Commonwealth and South Australian Constitutions, as was held in Longer v Commonwealth; and s 76 is valid. As to s 126, Brennan CJ considered that it was valid for the same reasons that s 329A was upheld in Langer. This followed for the simple reason that s 126 was reasonably capable of being regarded as appropriate and adapted to the achieving of the legitimate objective of protecting the prescribed primary method of choosing members of Parliament, ie compulsory full preference voting. This conclusion followed even if the implication of freedom ofpolitical communication from the Commonwealth Constitution had an operation in respect of State elections (which it did not), and even if the concession made by the Solicitor-General of South Australia that there was a similar freedom implied by the entrenched provisions ofthe South Australian Constitution was well-founded (which it was 87 K Lyall, 'Prisoner of the ballot box', supra note (1996) 136 ALR 18, 28-9 per Toohey J. 89 Id 27 per Dawson J. 90 Id Id 21 per Brennan Cl 92 Id 35-7 per Gummow J; 30 per Gaudron J. 93 Id 25 per Dawson J; 28 per Toohey J. 94 Id 25 per Dawson J.

14 88 Nicholas Aroney not necessary to determine).95 Toohey J likewise agreed that s 126 was reasonably capable of being considered appropriate and adapted to maintaining the electoral system. He added that s 126 was incidental to the protection of that system. 96 Dawson J, in agreeing with the Court, had to distinguish his decision in langer, and he did so on the basis that the South Australian legislation mandated a full preferential voting system and provided 'no alternative method in the form of an optional or selective preferential system'.97 Section 126 therefore was not incompatible with the exercise of a genuine choice by voters, since it merely prohibited encouraging voters to cast ineffective votes. Gaudron J, while in her conclusion agreeing with the rest of the Court (and particularly Gummow ]98), addressed the validity of s 126 in a distinct and significant manner. For her Honour, the key question was whether s 126 furthered or enhanced the democratic processes of the State. In this, while the other justices held that the Commonwealth guarantee of freedom of political communication did not extend to the conduct of State elections, Gaudron J confined herself to saying that the Commonwealth guarantee did not extend to State legislation which curtailed freedom of communication, so long as 'that curtailment is reasonably capable of being viewed as appropriate and adapted to furthering or enhancing the democratic processes of the States'.99 Therefore it appears that the Commonwealth guarantee does in principle extend to the States. She gave two reasons for this conclusion. First, Gaudron J referred to the 'interrelationship of the powers of the States and the Commonwealth' and the fact that the exercise or non-exercise of powers by the States 'may be a factor influencing decisions as to the exercise of Commonwealth powers'. Since Commonwealth exercise of legislative and executive powers is ultimately controlled by the people through representative and responsible government, the Australian people have an interest that the State powers likewise be democratically controlled. 1OO Second, her Honour stressed that the States are part of federation which is a 'free and democratic society'. They are subject to the Commonwealth Constitution by virtue of s 106 and are 'constituent elements of a federal democracy'; therefore, the States must 'be and remain essentially democratic'.101 Nevertheless, since paras 126(1)(b) and (c) by appropriate and adapted means in fact enhanced the democratic processes of South Australia, they did not transgress this requirement. Paragraph 126(1)(c) clearly promoted 'full, equal and effective participation in the electoral process' and was not problematic. Paragraph 126(1)(b), while raising different considerations, was also valid. In coming to this specific conclusion, her Honour examined the South Australian Act in some detail, distinguishing circumstances in which the scheme operated to give effect to a voter's actual preferences and where it deemed a voter to have expressed an order of preference for all candidates where the voter's actual preferences were not otherwise ascertainable. In both instances, she noted that the system maintains full preferential voting (unlike the Commonwealth system). In this context, para 126(1)(b) also enhanced the democratio process because it encouraged voters to make their actual voting intentions manifest, rather than falling back on the deeming provisions ld 22-3 per Brennan CJ. 96 ld 29 per Toohey J. 97 Id 27 per Dawson J. 98 ld 30 per Gaudron J. 99 ld 31 per Gaudron J. 100 However, it is difficult to see how on account of the interrelationship ofpowers that the Australian people per se have any particularly strong interest in this matter, especially since Commonwealth power will prevail under s 109 and under the principle in Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR (1996) 136 ALR 18, 31 and 32 per Gaudron J. This approach resonates with the 'organic unity' argument which was presented but rejected in McGinty. See infra note ld 32-5 per Gaudron J.

15 Representative Democracy Eclipsed? 89 Finally, Gummow J likewise emphasised that the 'overriding concern of the Act is to achieve effective exercise of the franchise by the casting of votes which are not informal'. As such an 'unequivocal exercise of the franchise', which in the present case is one which in accordance with s 76 expresses a full preference, 'is of the essence of the operation of representative government'. As such, para (b) and (c) of ss 126(1) were 'not inimical to, but rather in aid of, the system of representative government in South Australia'. Accordingly, it was again not necessary to 'determine the nature and extent of any implication to be drawn from the Australian Constitution' nor to determine whether the concessions made by the Solicitor-General were correctly made. t03 One vote, one value? McGinty v Western Australia Introduction The plaintiffs in McGinty, members of the Western Australian Legislative Assembly and Council, challenged provisions of Western Australian constitutional legislation which they alleged brought about a gross malapportionment of electorate sizes against metropolitan and in favour of non-metropolitan voters. 104 The basis for the challenge was that there is a constitutional requirement that, as far as is practical and reasonable, electorate divisions should be designed so as to contain approximately the same number of eligible voters, thereby ensuring a reasonable level of equality of 'voting power' for all electors across the State. I05 This constitutional requirement was said to be derived in a number of alternative ways, frrst, as an implication of the principle of representative democracy, second, via the principle of political equality, and third, as an implication of the specific language of the Commonwealth and Western Australian Constitutions. In 'sloganistic' but succinct terms, the plaintiffs were urging the Court to find that the principle of 'one vote, one value' applied to the State Constitution. loo The legislation which was challenged was s 6 of the Constitution Acts Amendment Act 1899 (the '1899 Act'), and ss 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (the. '1947 Act').I07 Section 6 of the 1899 Act prescribed that the State Legislative Council would consist of 34 members from six electoral regions, two of which were to return seven members, four of which were to return five members. Under s 6, the division of the State into the six regions was to be effected under the 1947 Act. Accordingly, s 2A of the 1947 Act required the State to be divided in accordance with the 1947 Act, and s 9 placed a duty upon the Commissioner to divide the State into the six regions referred to in the 1899 Act. Quotients (reflecting the proportions of voting population to numbers of members elected)108 for the respective regions differed dramatically when metropolitan and rural regions were compared. Adopting Brennan CJ's table: 109 ELECTORAL REGION QUOTIENT North Metropolitan 34,161 South Metropolitan 33,876 East Metropolitan 32, Id per Gummow J. 104 McGinty (1996) 134 ALR 289, 363 per Gummow J. 105 Id 312 per Toohey J; 293 per Brennan CJ. 106 Id 303 per Dawson J. Some of the submissions of the Plaintiffs were not fully addressed by the Court: P Johnston, 'Representative Democracy and its Relationship to Political Equality under the Commonwealth Constitution', Paper presented to the Annual National Conference of the Australian Society of Legal Philosophy~ University of Queensland, July The challenged sections of the 1947 Act were substituted by ss 89, 92 and 94 of the Acts Amendment (Electoral Reform) Act The quotients were calculated by dividing the total number of valid votes cast in each region by the number of members to be elected plus one: (1996) 134 ALR 289, 364 per Gummow Id per Brennan CJ.

16 90 Nicholas Aroney South West 13,721 Agricultural 13,161 Mining and Pastoral 9,097 The Chief Justice observed that the North Metropolitan quotient was 376% of the Mining and Pastoral quotient. I10 McHugh J noticed that as a result metropolitan voters, which are 74% of the State's voters, elected the same number of Councillors as the nonmetropolitan voters, who comprise only 26% of the State's voters. 1I1 The proportions for the Legislative Assembly were in tum governed by s 6 of the 1947 Act, which distinguished between the Metropolitan Area and the remainder of the State, and required the Commissioner to divide the Metropolitan Area into 34 districts and the remainder into 23 districts. The Commissioner was then required to make the division of those areasinto 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. 1l2 In the result, the Legislative Assembly consisted of57 members representing one district each, 34 returned from the Metropolitan area and 23 from the remainder of the State. The 15% tolerance, together with the metropolitan-remainder of the State distinction, resulted in the largest district having 26,580 enrolled voters and the smallest having only 9,135 - this time a 291 % difference in size. McHugh J noted, further, that these large disparities even occurred between regions geographically close to one another. H3 His Honour went so far as to say that: On no rational basis can the special needs of electors in areas outside the metropolitan areas justify such large disparities as exist between particular electoral districts and regions The arguments The constitutional grounds upon which the plaintiffs argued that the legislation was invalid were derived, in the alternative, from the Commonwealth Constitution and the Western Australian Constitution. It was argued that the two constitutions independently implied an equality of voting power which rendered the distribution of electoral divisions in the State invalid. In both instances, the implication was to be derived from the express provision for parliamentary representatives to be directly chosen by the people or, alternatively, from a more general implication of representative democracy. As regards the implication derived from the Commonwealth Constitution, it was necessary to establish that the implication at a Commonwealth level had a relevant application to the State electoral system. The plaintiffs argued that this was the case, alternatively, via s 106 of the Commonwealth Constitution, or on the basis of an 'organic unity'1l5 between the Commonwealth and States, requiring representative democracy and equality of voting power throughout the Australian federation. But for this to be effective, they also had to establish that the principle in question actually applied to the States (and not merely the Commonwealth), in the sense that the terms in which the principle is properly cast actually encompass the Stat~ situation. As regards the implication from the State Constitution, the plaintiffs argued 110 Id 293 per Brennan CJ. 111 Id 340 per McHugh J. 112 Sub-s 6(2) of the 1947 Act. 113 (1996) 134 ALR 289, 340 per McHugh J. 114 Id 341 per McHugh J. 115 Brennan CJ and Toohey J explicitly rejected this argument: id and 324; but in Muldowney, Gaudron J seemed to adopt something approximating it: (1996) 136 ALR 18, Cf M J Detmold, The Australian Commonwealth: afundamelltal analysis of its Constitution (Sydney: Law Book Company, 1985).

17 Representative Democracy Eclipsed? 97 that the relevant provisions of the State Constitution from which the implied guarantee was derived were validly 'entrenched' due to 'manner and form' provisions which rendered the relevant provisions unchangeable by ordinary parliamentary legislation. These arguments relied heavily on AeTV and Nationwide News, particularly because those cases seemingly attributed a wide meaning to the idea of 'representative democracy', from which was derived the guarantee of political communication. The arguments also relied on Theophanous and Stephens, since there the Court had held that the implied guarantee contained in the Commonwealth Constitution extended to the States by virtue of s 106 and that the WA Constitution, in entrenching the requirement that the Parliament 'be composed of members... chosen directly by the people',116 necessarily implied a guarantee of freedom of political communication. The plaintiffs faced some serious obstacles, however, to the acceptance of their arguments. There was quite clear authority to the contrary in Attorney-General (Cth); Ex rel McKinlay v Commonwealth 1l7 and Burke v Western Australia. lls They sought to 'sidestep' McKinlay by arguing that the 'new' approach seen in the Freedom ofspeech cases would lead the current Court to a different conclusion without directly conflicting with it. Alternately, if necessary they sought to have the Court overrule it, along with Burke. 119 Unfortunately for them, they were not successful. 120 The court's response: judicial policy has no role to play In the light of what has been discussed in relation to Langer and Muldowney, it should come as no particular surprise that the Court by majority rejected the plaintiffs' arguments. 121 Brennan CJ, Dawson and McHugh JJ (and with them Gummow J) followed through the principles which they, as minority justices, had enunciated with great force in Theophanous. The Chief Justice's opinion in Theophanous strenuously maintained that constitutional implications must be limited to the text and structure of the Constitution. His Honour had stated: In the interpretation of the Constitution, judicial policy has no role to play. The Court, owing its existence and its jurisdiction ultimately to the Constitution, can do no more than interpret and apply its text, uncovering implications where they exist.... The notion of 'developing' the law of the Constitution is inconsistent with the judicial power it confers... [I]n the interpretation of the Constitution, judicial policy provides no leeway for judgment Consistent with this emphasis on the text of the Constitution, it is interesting to note that, unlike all of the other justices in McGinty, Brennan CJ cited only legislation and case law to support his conclusions. The other judgments are notably replete with citation of academic commentary, an increasing tendency. This is the case even with Dawson, McHugh and Gununow JJ, despite their similar emphases on the constitutional text. However, before turning to this methodological aspect of the judgments, it is useful frrst to outline the majority conclusions on the implication from the Commonwealth and State Constitutions and the comments that were made in respect of a related matter, whether the Constitution guarantees universal adult suffrage. 116 Paragraphs 73(2)(c) and (e) of the 1889 Act, inserted by the Acts Amendment (Constitution) Act 1978, s 'McKinlay' (1975) 135 CLR 'Burke' [1982] WAR (1996) 134 ALR 289, 310 per Dawson J; Submissions of the Plaintiffs, 32, Although some of the judges did reinforce, clarify and in some respects extend the scope of dicta which had been made in McKinlay and in the related decision from the same era, Attorney-General (NSW); Ex rel McKellar v Commonwealth ( ) 139 CLR The Court's decision in McGinty was in fact handed down before Muldowney. 122 Theophanous (1994) 124 ALR 1, 29.

18 Constitution 92 Nicholas Aroney Is there an applicable guarantee ofequality of voting power? Dawson, McHugh and Gummow 11 emphatically rejected the proposition that the Commonwealth Constitution requires equality of voting power or an equality in the population of electorates. 123 Brennan Cl, on the other hand, decided the case strictly on the basis that any federal guarantee of equality could not apply to the States for the reason that the text and structure of the Commonwealth Constitution was inconsistent with any such implication. As to the text, the specific provisions of Chapter I, Parts II and ill are addressed to Commonwealth elections alone, and structurally, Chapter I is well separated from Chapter V dealing with the States. 124 Brennan Cl explicitly avoided deciding the question whether equality of voting power was required by the Commonwealth Constitution in federal elections. While they did not strictly need to address the question, the other members of the majority expressed agreement with the Chieflustice's conclusion concerning the application ofany Commonwealth guarantee on the Stateelectoral systems. For example, Dawson 1 expressly adopted Brennan Cl's reasons for this conclusion, and added that while the State Constitutions are under s 106 'subject to' the Commonwealth Constitution, 'this does not serve to apply to the States provisions of the Commonwealth Constitution which otherwise have no application to them'.125 An implication ofthe Western Australian Constitution? The majority rejected the proposition that the Western Australian Constitution implied a guarantee of equality of voting power in State elections, especially in light of the history of the WA electoral system and the fact that McKinlay had been decided just before the relevant changes to the State r were made. 126 Gummow 1 added that the inversion of the terms in the WA Constitution to read 'chosen directly' rather than 'directly chosen' as in the Commonwealth Constitution confirmed that the expression is intended to be an inseverable concept centrally concerned with directness rather than wider concerns of equality of voting power. Toohey and Gaudron Jl dissented on the ground that the WA Constitution was the source of a relevant guarantee with which the WA electoral system was held to be inconsistent and therefore invalid. Universal adult franchise? On this question, Brennan Cl's first step was to distinguish carefully between the qualifications of electors on one hand, and the voting power of electors on the other. By 'qualifications' his Honour meant the question how far the Parliament can impose race, gender, age or property qualifications on the right to vote in Commonwealth elections. In McKinlay, a majority ofbarwick CJ, Gibbs, Stephen and Mason 11 rejected the proposition that the wording of ss 7 and 24 of the Constitution implied a right to universal adult suffrage. 127 McTiernan and lacobs JJ, however, thought that, while the question could not be answered in the abstract, 'the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether... anything less could now be described as a choice by the people'. 128 Likewise, Murphy J thought that by 1975, the 'silent operation of constitutional principles' meant that a law which deprived someone of 123 (1996) 134 ALR 289, per Dawson J; 354 per McHugh J; 387 per Gummow J. 124 Id per Brennan CJ. 125 Id 311 per Dawson J. 126 Id per Brennan CJ; 311 per Dawson J; 363 per McHugh J; per Gummow J. 127 McKinlay (1975) 135 CLR I, 19 per Barwick CJ; 44 per Gibbs J; 56-7 per Stephen J and 62 per Mason J. In McGinty, Brennan CJ considered that Stephen J should be classed with McTiernan and Jacobs JJ: (1996) 134 ALR 289, McKinlay (1975) 135 CLR 1,36. Compare Burke [1982] WAR 248, 251, 253 per Burt CJ.

19 Representative Democracy Eclipsed? 93 the franchise on the grounds of sex or property would be unconstitutiona Echoing the minority view in McKinlay, in the present case Brennan CJ thought that: [I]t is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote. 130 Toohey and Gaudron JJ agreed, and went further, declaring that anything less than universal adult franchise would be unconstitutional. 131 Dawson J on the other hand disagreed: he thought that Parliament may impose qualifications of electors which 'amount to less than universal suffrage, however politically unacceptable that may be today'.132 McHugh J may well have thought likewise. His Honour noted that s 30 of the Constitution 'confmns the view that equality of voting power for the adult people of Australia is not a constitutional requirement', so that matters such as the franchise 'were matters for the States until the Parliament legislated'.133 Gummow J stated that the Constitution did not entrench 'any universal adult franchise', but he thought that it could not now be abrogated, despite the powers granted to Parliament by ss 8 and Be that as it may, the question of the qualifications of electors is distinguishable from the question of 'equality of voting power'.135 Here the ratio of McKinlay was clearly in view. Constitutionalism and representative democracy: Brennan CJ, Dawson and McHugh JJ As indicated, in many respects, the majority decision in McGinty was essentially an application of the approach taken by Brennan CJ, Dawson and McHugh JJ in Theophanous, Stephens and Cunliffe. In McGinty, these justices repeated the points they had made in the earlier decisions and applied them to the specific questions raised. And due to the departure of Mason CJ and Deane J, the balance of the Court had shifted with the addition of Gummow J, leaving aside the position which Kirby J may take in the future. 136 For example, as to constitutional implications" Brennan CJ proceeded from where he left off in Theophanous, although he refrained from citing any of the strongly worded comments he had made in the earlier case. But the following words resonate the earlier themes precisely: Implications are not devised by the judiciary; they exist in the text and structure ofthe Constitution and are revealed or uncovered by judicial exegesis. 137 As in Theophanous, his Honour was at pains to show how the principles enunciated in ACTV should be interpreted and applied. While implications can be derived only from the text or structure of the Constitution, when applied to a specific fact situation, they 'may be expressed in terms relevant to that situation'. 138 This, it appears, explains the at times 129 McKinlay (1975) 135 CLR 1, (1996) 134 ALR 289, 293 per Brennan CJ. 131 ld 337 per Toohey and Gaudron JJ. 132 Id 306 per Dawson J. In omitting the term 'adult', Dawson J could be taken as meaning only that children, those of unsound mind and convicted criminals could be excluded. But the context implies a wider meaning. 133 McHugh J discussed the limits on the franchise, the time of federation, and noted that R v Pearson; Ex parte Sipka (1983) 152 CLR 254 had confinned that s 41 of the Constitution does not confer a right to vote on persons living today: (1996) 134 ALR 289, (1996) 134 ALR 289, and especially 385 and 388 per Gummow J. 135 Id 293 per Brennan CJ. Compare the references to 'adult universal franchise' in Burke v Western Australia [1982] WAR 248, 251 and 253 per Burt CJ. ' 136 Cfinfra note (1996) 134 ALR 289, 295 per Brennan CJ. See also Kable v The Director ofpublic Prosecutionsfor NSW (1996) 138 ALR 577, 582 per Brennan CJ: 'If the connection between the text and the propounded implication is tenuous or obscure, it would be wrong for a court by declaration to withdraw from public debate the matters to which the submitted restraint applies'. 138 Ibid

20 94 Nicholas Aroney expansive language used in AC1V and Nationwide News. While the terms 'representative democracy' and 'representative government' may have been used freely in those cases, they were only a useful 'shorthand' for what the Constitution actually prescribes, especially in ss 7 and 24. Indeed, those cases did not depend at all on an exhaustive definition of representative democracy; and they were not at all concerned with equality of voting power. 139 Therefore the plaintiffs could not rely on the argument that something falling short of equality of voting power is inconsistent with a 'general principle of representative democracy' - ACTV and Nationwide News provide no solace here. 140 The difficulty, of course, with the attempt to read down the earlier decisions is that voting per se is obviously more closely connected with and essential to representative government than freedom ofpolitical speech, as important as freedom of speech clearly is. Indeed, 'voting in elections' is expressly referred to in s 25 of the Constitution! Observers could quite easily have been forgiven for concluding thatif freedom of political communication was impliedly protected by the Constitution, at least some significant level of equality of voting power must also be protected, even if it is a matter of degree. Dawson J, by contrast, accepted that in AC1V and Nationwide News, 'wider views' were expressed by 'other members of the Court', apparently including Brennan J (as he then was) and McHugh J.141 While critical of the distinction between implications drawn from the text and the structure of the Constitution (a distinction to which Brennan CJ and McHugh J adhered in McGinty142), Dawson J thought that even the majority reasoning in AeTV (based as it was on a- 'structural implication') did not support the plaintiffs. Like the Chief Justice, Dawson J noted: [I]f implications are to be drawn, they must appear from the tenns of the instrument itself and not from extrinsic circumstances. The distinction has been drawn between textual and structural implications, but I am not sure that the distinction is helpful. Whether or not an implication is categorised as structural or not, its existence must ultimately be drawn from the text. One is brought back to the text in the end and the danger in speaking of structural implications is, it seems to me, that there is a temptation to include by implication as part of the relevant structure those values which the structure is capable of, but does not necessarily, accommodate. 143 Articulating a similar thesis, McHugh J thoughtfully noted that the Constitution 'contains no injunction as to how it is to be interpreted'. Therefore, [A]ny theory of constitutional interpretation must be a matter of conviction based on some theory external to the Constitution itself. l44 While legal sovereignty now resides in the people of Australia, his Honour noted that the people have chosen to be governed by a constitution contained in a British Act of Parliament: so the constitution should be interpreted as a statute. This requires the court to interpret it according to the ordinary and natural meaning of the text, in light of its history. It allows the Court to infer such necessary implications as are logically or practically necessary for the preservation ofthe integrity ofthe structureofthe constitution. Drawing explicitly on what he had said in Theophanous, he thought that this excludes socalled 'implications' which merely 'underlie" the Constitution, and 'political principles or theories' that are not 'anchored' in its text or structure. 145 According to these justices, then, the Court should not draw a secondary and subsidiary 139 Id per Brennan CJ. 140 Id per Brennan CJ. 141 Id 305 per Dawson J., 142 Id per Brennan CJ; per McHugh J. 143 Id 307 per Dawson J. 144 Id 344 per McHugh J. 145 Id per McHugh J.

21 Representative Democracy Eclipsed? 95 set of inferences to be derived from a 'free-standing principle' ofrepresentative democracy, itself purporting to be an implication of the Constitution. 146 Dawson J considered that- It is fallacious reasoning to posit a system of representative government for which the Constitution does not provide and to read the requirements of that system into the Constitution by implication. 147 Thus a guarantee of equality of voting power cannot be inferred from the principle of representative democracy as if it were a free-standing principle abstracted from the specific text and structure of the Constitution. 148 Indeed, Gummow J noted that representative government or representative democracy functioned as a 'category of indetenninate reference', which, on the analysis ofjulius Stone, allows a wide range of variable judgment in interpretation and application. 149 McHugh J parodied the alternate view as if the Constitution contained a Ch IX with a s 129 which read: Subject to this Constitution, representative democracy is the law of Australia, notwithstanding any law to the contrary. 150 McHugh also noted that the arguments put by the plaintiffs were the logical result of the majority view stated in Theophanous. But in forceful language reminiscent of the style of some judges of the US Supreme Court and calculated to justify a departure from precedent, McHugh J adopted Isaacs J's declaration that: Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. 151 He continued that the reasoning in the earlier cases invoking an implied principle of representative democracy wasfundamentally wrong and... an alteration of the Constitution without the authority of the people under s 128 of the Constitution. Moreover, to decide cases by reference to what the principles of representative democracy currently require is to give this Court a jurisdiction which the Constitution does not contemplate and which the Australian people have never authorised. 152 Accordingly, the Court is to respect the express text and structure of the written Constitution, although McHugh J noted the prevailing problem that the Constitution itself gives us no explicit guidance as to how it is to be interpreted. If a theory or a fundamental doctrine were required to support this approach, it seems that it invokes a principle of constitutionalism or the rule of law, much in the same way that Dixon J invoked the rule of law to invalidate the Communist Party Dissolution Act. 153 In restricting constitutional implications to those which can strictly be derived from the text or structure, these justices seem to have given effect to what Sir Owen Dixon called a 'fundamental conception' which the legal system 'embodies or expresses', namely, the supremacy of law. 154 Of, 146 Id 347 per McHugh J; cf 391 per Gummow J; 310 per Dawson J; N T Aroney, 'A Seductive Plausibility: Freedom of Speech in the Constitution' (1995) 18 (2) University o/queensland Law Jouma1249, 257, Id 310 per Dawson J. 148 Id per McHugh J; per Brennan CJ; 310 per Dawson J. Cf Muldowney (1996) 136 ALR 18, 26 per Dawson J. 149 Cf J Stone, Legal System and Lawyers' Reasonings (Stanford: Stanford University Press, 1964), and N T Aroney, Freedom ofspeech in the Constitution, LLM Thesis, University of Queensland, 1994, (1996) 134 ALR 289, 347 per McHugh J. 151 Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association ofaustralasia (1913) 17 CLR 261, 278 per Isaacs J. Notably, Isaacs J was there dissenting from the pre-engineers' doctrine of the implied immunity of instrumentalities. 152 Both citations: (1996) 134 ALR 289,348 per McHugh Australian Communist Party v Commonwealth (1951) 83 CLR 1, 'The Law and the Constitution', in Jesting Pilate and Other Papers and Addresses (Melbourne: Law Book Co, 1965), 38.

22 96 Nicholas Aroney course, the application of the rule of law to which Sir Owen was referring was as a limitation on the powers of the legislature. 155 In McGinty, the justices were applying the rule of law in the converse direction, as a demarcation of the power of the Court to invalidate legislation. This is the two-fold balance which written constitutions fundamentally seek to achieve; a balance between imposing limits on democratically elected legislatures, and setting standards for the courts in their exercise ofjudicial review. By reducing to writing the constitutional limits on the legislature, the province of the Courts' exercise of judicial review is at the same time defined and limited. 156 As Kirby P (as he then was) commented in 1986: [There are] dangers which may attend the development by judges (as distinct from the development by the people's representatives) of a doctrine of fundamental rights more potent than Parliamentary legislation. Such extra-constitutional notions must be viewed with reservation not only because the they lack the legitimacy that attaches to the enactments ultimately sanctioned by the people. But also because, once allowed, there is no logical limit to their ambit. They may thereby undennine a rule oflaw and invite the only effective substitute, viz the rule ofpower. I5? Commenting on this, Professor Zines observed: The drafting of Acts, constitutional provisions, or treaties relating to rights needs very careful consideration. Those in existence differ in their provisions, even when confined to the negative freedoms of the liberal society. They should provide at least guidelines for the judges who have to interpret them. Accepting that entrenched rights confer on the judiciary broad policy making powers it is necessary to give deliberate attention to the extent and limits of this judicial power. 158 What comes out clearly in the majority view in McGinty is that because the Court is arbiter of both Parliament's and its own powers, it must exercise self-restraint when so deciding. 159 As such, McGinty reveals an aspect of the interface between representative government and constitutionalism. The cases in this field (eg ACTV, Theophanous, Langer) are not simply concerned with the extent to which one can derive implied rights from the doctrine ofrepresentative government; they also concern the interface between that doctrine on one hand and constitutionalism and the rule of law on the other. Since the Australian constitution, following the overwhelming modem trend, is reduced to writing, that fact points to the importance of the text of the Constitution and the care which must be taken when questions of constitutional implications arise. l60 Nevertheless, in the result, while the Chief Justice emphatically rejected the proposition that ss 7 and 24 imply equality of voting power, and cited Stephen J in McKinlay fairly 155 Id Judicial review on grounds other than a written constitution has had a tumultuous and contested history: cf E S Corwin, 'The Establishment of Judicial Review' ( ) 9 Michigan Law Review 102 and 283; T F T Plucknett, 'Bonham's Case and Judicial Review' (1926-7) 40 Harvard Law Review 30; A Castles, An Australian Legal History (Law Book Co, 1992), 278ff and Building Construction Employees & Builders' Labourers Federation ofnsw v Minister for Industrial Relations (1986) 7 NSWLR 372, 405. One might therefore expect Kirby J to be somewhat reticent about the judicial use of 'extra-constitutional notions'. Cf his Honour's comments on the Freedom of Speech cases in (1992) 66, Australian Law Jouma and compare his address upon elevation to the High Court on 6 February, 1996 and more recently in the 10th annual Lionel Murphy Memorial Lecture on 21 October, 1996: The Australian Financial Review, 22 October, 1996, L Zines, Constitutional Change in the Commonwealth (Cambridge: Cambridge University Press, 1991), Professor Zines, noting that he was not 'totally distrustful of judges when it comes to the protection of the individual or of minorities', added that judges 'should not be given, nor should they grab, a blank cheque': ibid. 160 For a contrary view, T C Grey, 'Do We Have an Unwritten Constitution?' (1975) 27 Stanford Law Review 703.

23 Representative Democracy Eclipsed? 97 well to that effect,161 he did seem to indicate that it remained a question of degree hinting that at a certain point (undefined) a limited franchise would become unconstitutional. His Honour stated: The term 'representative democracy' implies that the franchise be so general in its scope and voting power be so distributed among those who have the franchise that those who are elected to govern can fairly be seen to be representatives of the people who are governed. 162 In putting the franchise and voting power questions together, its seems that Brennan CJ was referring to a constitutional imperative. His Honour went on to say that, "representative democracy" has been used as a shorthand description' of what the Constitution prescribes, and no more. He later pointed out that the term 'representative democracy' is not to be found in the text of the Constitution and that one should not attribute to it a meaning extrinsic to the Constitution, and then derive implications from that meaning as if they were derived from the Constitution itself. 163 Certainly on the facts of the present case, his Honour considered that disparities of up to 376% were permissible. Similar observations can be made in respect of Dawson J, except that he more comprehensively rejected any implication of equality of voting power,l64 stressing that 'there are hundreds of electoral systems in existence today by which a form of representative government might by achieved', that the criteria by which they can be evaluated are often incompatible, and accordingly, 'there can be no implication that a particular electoral system, of the many available, is required by the Constitution'.165 He therefore thought it wise that the framers left the matter to Parliament, rather than 'to freeze into a constitutional requirement a particular aspect of an electoral system'.166 *, f' Federalism and representative democracy: McHugh and Gummow]] McGinty also reveals aspects of the interface between representative democracy and federalism. Gummow and McHugh JJ thought that it was very relevant to consider the degree to which representation under the Constitution was shaped by federalism. For Brennan CJ and Dawson J, the case turned primarily on how far representative government could be taken in the direction of equality of voting power. 167 However, for McHugh and Gummow JJ the case also turned on the federal nature of the Australian Constitution. The transition between the two kinds of argument is quite identifiable in McHugh J's judgment. His Honour stated that if, contrary to his view, the Constitution contains a free-standing principle of representative democracy, other provisions of the Constitution show that... the Constitution does not require an equal number of electors in electoral divisions. l68 Indeed, he considered that 'inequality of individual voting power is one of [the Constitution's] striking features'. 169 Gummow J clearly thought likewise. 170 Why is inequality a 'striking feature' of the Constitution? Precisely because of the l' 161 Compare McKinlay (1975) 135 CLR 1,36-7 per McTiernan and Jacobs JJ; 57 per Stephen J; 61 per Mason J. In McGinty, Dawson J thought that the justices in McKinlay had in mind only 'extreme situations markedly different' from the WA system: (1996) 134 ALR 289, 311. Gummow J agreed that the question could not be resolved in the abstract: id (1996) 134 ALR 289, 294 per Brennan CJ. 163 Id per Brennan CJ. 164 Except perhaps for 'extreme cases markedly different' from the Western Australian system: id 311 per Dawson Id 302 per Dawson J. ' 166 Id 309 per Dawson J. 167 Brennan CJ adverted in passing to certain disproportionate features of the representation system mandated by the Constitution in ss 7 and 128: id Id 348 per McHugh J. 169 Id 349 per McHugh J. 170 Id 379 per Gummow J: 'the value of each elector's vote is not equal'.

24 98 Nicholas Aroney federal nature of the Australian polity. Gummow J explicitly referred to 'the adaptation of representative democracy to federalism by the framers of the Constitution' and his judgment is replete with references to the impact of federal considerations on specific representation provisions of the Constitution. 171 McHugh J referred to the same provisions, and used the same arguments, although he did not expressly point to federalism as the explanation. 172 In the arguments of the plaintiffs, the federal nature of the Constitution was relevant in two respects: the frrst concerning the adaptation to federalism of representative government at the Commonwealth level, the second - as an outworking of federalism - concerning the freedom given to the States to determine their own electoral systems. As regards federal representation at the Commonwealth level, McHugh and Gummow JJ identified ss 7, 24, 121, 122 and 128 as specifically accommodating representative government to federalism. Section 7, in mandating equal representation in the Senate for each original State, actually entrenches inequality of individual voting power for people in each State in Senate elections. This clearly produces a marked inequality of voting power between electors in the less and the more populated States: a 10:1 difference in the case of Tasmania and Victoria, for example. I73 Section 24 expressly requires representation of the people of each State in the House of Representatives in proportion to population. A specific decision to entrench this requirement was taken; but there was no entrenchment of representation of individual electorates in proportion to population. The entrenchment was limited to the original States. 174 Further, s 24 mandates a minimum of five members to be chosen from each State, effectively denying the possibility of 'one vote, one value' at the time of federation. Gummow J then observed that each of the paragraphs of s 24 concerned issues of federalism in one way or the other. 175 What was not fixed was consciously left for future generations to determine, through Parliament. In tum, McHugh J noted that ss 121 and 122 allow for the extent of representation of new States and Territories to be determined as Parliament thinks fit, without even the expressed necessity that such representatives be directly chosen by the people of the Territories. I76 Their representation need not accord with their populations. I77 Likewise, s 128, concerned with the locus of sovereignty under the Constitution, specifically mandates that 'individual Australians do not have an equal share in the sovereignty of Australia', especially because where a proposed amendment affects a particular State, 'the votes of a ma~ority of people in the State concerned are equivalent to the votes of the rest of the nation'.178 Gummow J again added that the reasons for this inequality were federal in nature. 179 Finally, both justices dispensed with the argument that the Commonwealth Constitution controlled the capacity of the State legislatures to erect electoral systems with inequality of voting power by adverting to the federal nature of the Constitution. I80 Thus McHugh J and particularly Gummow J relied on the federal nature of the Constitution as an answer to the attempt to infer a guarantee of equality of voting power. However, this was not simply a conflict between two implied principles standing free from the text of the 171 Id 372, 374, 380-1, per Gummow Id , per McHugh J. 173 Id 349 per McHugh J. 174 ld 351, per McHugh J; 380 per Gummow J. In the absence of provision to the contrary however, s 29 would have imposed an equality of voting power. 175 ld per Gummow ld 350, 355 per McHugh J. 177 Western Australia v Commonwealth (1975) 134 CLR 201, 271 per Mason (1996) 134 ALR 289, 349 per McHugh J. 179 ld per Gummow ld per Gummow J; 360 per McHugh J.

25 Representative Democracy Eclipsed? 99 Constitution itself. The federal implication was denved from numerous, very specific provisions which expressly required inequality of voting power in certain respects. As such, their Honours attempted to identify precisely those things which the framers of the Constitution actually sought to entrench. Gummow J noted that 'the entrenched matters concerned issues of federalism'.181 Thus both justices, while adverting to federal considerations at length, tied what they had to say about the federal features of the representative system to express provisions in the Constitution which clearly had a federal explanation. McHugh J explicitly rested part of his judgment on the textual arguments relied on by Brennan CJ and Dawson J; Gummow J conscientiously limited his observations on federalism to those which were expressly secured by particular provisions of the Constitution. As such, they asserted the authority of the text more so than the concept of federalism. But the text to which they referred is inescapably federalist. One objection to this approach might be that while some provisions of the Constitution require inequality of voting power in particular respects (eg to account for federalism), those particular provisions should have no bearing on the implication ofequality of voting power as a general principle derived from representative democracy as implied by the Constitution. 182 Some answer to this objection may be found in McHugh and Gummow JJ's further reliance on those provisions in the Constitution which explicitly make provision in respect of the federal representative system 'until Parliament otherwise provides'. As Gummow J noted, this is a 'recurrent phrase', with a 'deeper significance'.183 The phrase appears in ss 7, 10, 22, 24, 29, 30, 31, 34, 39, 46, 47, 48. A similar expression appears in s 49, and a similar power is granted in s 27. Of course, explicit legislative power on this basis is granted in s 51(xxxvi). What is the effect of this overwhelming number of provisions? In his Honour's words, they 'accommodate the notion that representative government is dynamic rather than a static institution'.184 They also demonstrate a profound trust vested in the federal Parliament to frame the specifics of the electoral system through which its own members would be elected. 185 Thus, as Gummow J pointed out, the framers made conscious choices about what they would entrench, and what they would leave to Parliament to decide. As part of the federal compromise, the framers established certain federal imperatives; they established certain representative imperatives; and they left the balance to Parliamentary evolution. 186 They did not entrench 'the secret ballot, compulsory voting, preferential or proportional voting, nor any universal adult franchise. Nor... the electoral divisions in each State'.187 As regards representative government, therefore, the Constitution entrenches certain 'essential or inherent features', but not others. Equality of voting power was not one of them. Careful attention to what the Constitution entrenches and what it does not entrench is instructive for Gummow J. Moreover, the Constitution then explicitly leaves matters such as intra State electoral divisions or 'voting power' to the discretion of federal Parliament. This allows for, as McHugh J acknowledged, the evolution of English and Australian 181 Id 380 per Gummow J. This is borne out in the Convention Debates: G Craven (00), The Convention Debates 1891 to 1898: Commentary, Indices and Guide (Sydney: Legal Books, 1986), Vol II: 423, 429, 434, III: 702, 704, 706, 708., 182 Id 323 per Toohey J. ;~; 183 Id per Gummow J. ;~r 184 Id 383 per Gummow 1. McHugh J also adverted to this argument: id 357. :t~ 185 Id per Gummow J. ~ 186 B Galligan & J Warden, 'The Design of the Senate' in G Craven, supra note 181, Vol 6, 101. ~ 187 Id 385 per Gummow J. I am indebted to Mr Peter Johnston's observation that there seems to be some t;, incongruence, however, between this position and his Honour's comment, id 388, that universal adult franchise has become so well established that it could not be abrogated by Parliament, notwithstanding ss 8 and 30.

26 100 Nicholas Aroney representative institutions which had been up to 1900 in the general direction of representation of individuals instead of communities. 188 The second, related, answer - to the criticism that Gumrnow J reifies the concept of federalism as an answer to the reification of the concept of representative democracy may lie in an assessment of the relative importance of these two doctrines to the Australian Constitutional order as a whole. As McHugh J intimated, on the basis of the majority decisions in AC1V and the other Freedom ofspeech cases, the plaintiffs were entitled to expect that the 'free standing' concept of representative democracy might imply a guarantee of equality of voting power. 189 And indeed, the emphasis in AC1V on what might be characterised as a 'social contract' theory of the Constitution is generally consistent with an individualistic implication of equality of voting power. An assessment of the respective places of representative democracy and federalism could begin with a comparison and evaluation of the degree to which the two contending doctrines are entrenched in the Constitution. At a more theoretical level, it also would involve an evaluation of democracy and federalism as theoretical principles and an assessment of how theories of democracy and federalism each bear on questions of representation, voting power and electoral boundaries. A development of federal theory in this direction cannot be undertaken here in any detail. But putting aside criticisms of ideas of federal representation being incorporated into Commonwealth institutions,l90 it can be pointed out that one of the theoretical bases of federalism is that we can identify discrete communities of interest (say at a state or provincial level) which call for separate and autonomous governmental structures. 191 Assuming that these considerations also translate into the structure of representation at a federal level (which is clearly an assumption of the Constitution, particularly at ss 7, 24 and 128), the federal principle would also seem to imply that communities of interest at an even more local level exist and should receive special representation at the state or federal level. This would seem to undergird the division of state and federal electorates in a manner which seriously takes into consideration particular communities of interest - as a consideration quite independent of the implication of democracy that electorates be of equal size. Coupled with the fact that the Constitution grants the Parliament power to determine electorate divisions, there seems to be potential for a strong argument that the Parliament quite appropriately recognises communities of interest when it determines electoral divisions. This consideration was adverted to by the justices, particularly in their citations of the Canadian decision, Reference re: Electoral Boundaries Commission Act, where it was said: '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'.192 McHugh J admitted: Historically, parliamentary representatives were seen as representing communities and economic interests rather than individual electors. Thus James Mill thought that governments should be directed by a parliament that, 'must have an identity of interest with the community'. During the course of the nineteenth century, however, it came to be seen more clearly that parliamentary 188 Id 352 per McHugh J. 189 Id and especially 347 per McHugh J. 190 C Sampford, 'Responsible Government and the Logic of Federalism: An Australian Paradox?' (1990) 1 Public Law 90; D Wood, 'The Senate, Federalism and Democracy' ( ) 17 Melbourne University law Review M Frenkel, Federal Theory (Canberra: Centre for Research on Federal Financial Relations, 1986), (1991) 81 DLR (4th) 16, 36, also, 38 per McLachlin J. Cf also Dixon v British Columbia (Attorney-General) (1989) 59 DLR (4th) 247 and McGinty (1996) 134 ALR 289, 309 per Dawson J; 322,330, 331 per Toohey J; 357 per McHugh J; 372, 389 per Gummow J.

27 Representative Democracy Eclipsed? 707 representatives should represent individuals rather than communities and economic interests, a view with which Warren CJ agreed when he said in Reyrwlds v Sims: Legislatures represent people, not trees or acres. Legislatures are elected by voters, not farms or cities or economic interests. 193 This line of response captures much of what separates democratic and federalist conceptions of representation. Democratic theory in this context is individualistic: legislatures represent individual people, not communities of people. It follows that electoral systems which are organised on the basis of representing communities, apart from being undemocratic in principle, are suspect as entrenching local power bases 'for the systematic thwarting of national goals'.194 Abstract and unhistorical definitions of federalism as essentially and simply being concerned with the existence of two levels of government autonomous within their prescribed spheres of operation,195 tend to overlook the importance of the representation of groups and communities of interest within federal systems of representation. As such, 'states' or 'provinces' become defined as 'geographic minorities', whose interests may be opposed to national 'majorities'. But by so defming federalism with reference to end products, and the constituent states of federations as aggregates of individuals, such approaches lead to a rejection of provincial representation in federal institutions of government as illogical and anti-democratic. 196 But, on the contrary, our term federal is derived from the Latin foedus, meaning covenant or pact. 197 Federations are generally formed out of pre-existing political communities which covenant together to form a federal government. As such, federalism presents an important alternative to social contract theories of democracy. One should expect that pre-existing communities will place conditions on federal union calculated to preserve or protect community interests. A place in the federal representation system is one such condition, and it is therefore quite consistent with federal ideals of representation198 that particular communities be especially represented in national legislative assemblies, and that that representation be reflected in the distribution of the electorate into electoral divisions reflecting those communities of interest. It is an impoverished federal discourse l99 that allows concepts such as representative democracy to very nearly hold sway when questions of the meaning of representation are in issue. On the contrary, federal theory possesses a potent theoretical potential in this field; and it also enjoys very strong support in the detail of the Australian Constitution. However, a lion stands in the way of the full development of such an argument. The reliance on s 29 of the Constitution cuts both ways. If the Commonwealth (or State) Parliaments have 'sovereign' power to determine the details of the electoral divisions for its own elections, it is free to ignore the dictates of both democratic and federal theory; it is free to ignore the interests of individual voters and identifiable local communities. Further, even if legislatures should represent communities, there is always a question whether, in fact, a system of electoral divisions actually does so, or merely arbitrarily divides the landscape, with no substantial or reasonable allowance for either equality of 193 (1996) 134 ALR 289, 352 per McHugh J, footnotes omitted. 194 Frenkel, supra note 191, Cf the current definition of 'federal' in the Oxford English Dictionary. 196 For eg Sampford, supra note 190, 92-3, The Oxford English Dictionary notes this fact: it is the basis of one of the senses of 'federal" which the OED classifies as obsolete. 198 Cf M Diamond, 'The Electoral College and the Idea of Federal Democracy' (1978) 8 Publius: The Journal of Federalism D Meale, 'The History of the Federal Idea in Australian Constitutional Jurisprudence: A Reapprais~' (1992) 8 Australian Journal oflaw and Society 25. Meale, though, is quite critical of reduction of federalism to the merely practical task of creating structures of representation: id 46.

28 702 Nicholas Aroney voting power or the representation of identified communities. Assuming this to be a properly justiciable question, Toohey and Gaudron JJ were inclined to strike down the WA legislation for just this reason. Contemporary Perceptions ofdemocracy: Toohey and Gaudron JJ Toohey and Gaudron JJ decided that the relevant provisions of the WA electoral system were 'atodds with the principle ofrepresentative democracy to be found in theconstitution of Western Australia,'2oo so that 'if elections were now held, neither the members of the Legislative Council nor those of the Legislative Assembly would be "chosen... by the people" within the meaning of those words in s 73(2)(c) of the 1889 Act'.201 In coming to this conclusion, they thought that it was the 1889 Act and not the Commonwealth Constitution which was decisive. 202 They agreed with the majority that, even if the Commonwealth Constitution guarantees voting equality in Commonwealth elections,203 that guarantee does not necessarily translate into a guarantee which operates at the State level.. Toohey J noted that: Any guarantee of voting equality in Commonwealth elections will not be affected by State electoral laws pennitting inequality in State elections. In this respect there is no necessary inconsistency between voting inequality at the State level and voting equality at the Commonwealth level. The conduct of State elections will not undennine Commonwealth elections. The impl~ation of freedom of political communication can be distinguished, for it is the nature of such communication that State restrictions may undennine the Commonwealth guarantee.204 In drawing this conclusion, Toohey and Gaudron JJ were distinguishing Theophanous, where Deane J, for example, had held that through s 106 the guarantee of freedom of political communication at the Commonwealth level operated at the State level, to control State legislative power. Deane J's decision could have been read as extending all implied Commonwealth guarantees to the States. However, Toohey and Gaudron JJ limited Theophanous to freedom of speech because if freedom of speech is controlled at a State level, it can have a direct impact on the freedom of political communication in Commonwealth elections; but same was not the case with voting power in State elections. The only remaining way of linking the Commonwealth guarantee as regards voting power to the States was to look for some organic or specific relationship between Commonwealth and State electoral systems. One argument was that an 'organic unity of the Commonwealth and the States means that they are inexorably entwined so that an implication of electoral equality in the Australian Constitution will necessarily apply to Western Australia'.205 Toohey J dispensed with this argument by acknowledging the 'indivisible nature of public discussion and the inter-relationship between the various tiers of government', but distinguishing, again, political discussion per se and the electoral process per se. 206 Thus: Section 106 does not effect a blanket importation of the Australian Constitution into State constitutions. To interpret s 106 in this way unduly subjects State constitutions to the Australian Constitution at the price of the other stated aims of the section. Its primary aim is to guarantee the continuation of State constitutions after federation, though subject to the Constitution (1996) 134 ALR 289, 332 per Toohey J. 201 Id and per Gaudron J. 202 Id 328 per Toohey J; 333 per Gaudron J. 203 Id 324 per Toohey J; 337 per Gaudron J. 204 Id per Toohey J. See, per Gaudron J. 205 Id 324 per Toohey J. Cf Detmold, supra note Ibid 207 Id 328 per Toohey J.

29 Representative Democracy Eclipsed? 703 A second argument was that the Commonwealth Constitution specifically connects the Commonwealth and State electoral systems, particularly via the casual Senate vacancies provisions of s 15. It was argued that s 15 'presupposes that the States will have a system which in a general way corresponds with the Commonwealth system,'208 because s 15 empowers the relevant State to nominate a person to fill a casual vacancy in the Senate, and when doing so, to appoint a person from the same political party as the Senator whose seat is being filled. Since the original Senator was 'chosen by the people' under s 7, it was argued that s 15 implied that the State electoral system which produced the representatives within the relevant State house or houses of Parliament must be similar in nature to the Commonwealth system. Toohey J rejected this argument on the ground that s 15 is remedial and operates only on rare occasions. 209 One might add that following the amendments to s 15 introduced in 1977, the requirement that vacancies be filled by persons of the same political party removes a large measure of the discretion which the States had in the past exercised when filling casual vacancies. This, if anything, weakens the argument that can be made on s 15. If the discretion of the States is controlled in this way, it is less of a problem if the State government is elected on something less than an ideally democratic basis. 210 Thus the argument came down to s 106 and Toohey and Gaudron JJ held that s 106 was of no assistance in translating Commonwealth guarantees of equality of voting power to the States. Their Honours turned, then, to the Constitution of Western Australia itself, specifically the words 'chosen directly by the people' in s 73(2)(c) of the 1889 Act. Unlike Gummow J in particular, Toohey and Gaudran JJ did not make anything of the inversion of the words chosen and directly when ss 7 and 24 are compared to s 73(2)(c). But Gaudron J did acknowledge that the specific meaning of these words as relevant to the issue of vqting power could differ as between the Commonwealth and State constitutions, if there was some relevant difference in context. 211 For her Honour, there was one difference: there was nothing in the WA Constitution which required disparity in voting power - unlike ss 7 and 24 of the Commonwealth Constitution which require certain disparities in their adjustment for the specific interests of the States or the people of the States. Interestingly, therefore, an important argument used by the majority to counter the implication of equality of voting power at a Commonwealth level was eliminated at the State level. This had the effect of strengthening the case for equality of voting power in State elections.2 12 While Toohey J addressed the argument at the Commonwealth level,213 his Honour did not explicitly advert to the relatively stronger case that could be made at the State level. Rather, his Honour addressed a number of relatively inconsequential objections which need not detain us here. 214 One further point which both justices addressed was that at the time when the amendments to the 1889 Act were made, there were 'considerable differences between the size of electorates' within WA.215 The two Judges addressed this issue differently. Toohey J distinguished between the textual signification or implication to be drawn from the words 'chosen directly by the people', that is, the 'specific dictate' required by s 73(2)(c), and the structural implication to be drawn from the 'concept of representative 208 Id 325 per Toohey Ibid, citing Vardon v O'Loghlin (1907) 5 CLR 201, 216 per Isaacs J. 210 Except that the amendment was not especially effective when it had its first opportunity to operate. 211 (1996) 134 ALR 289, 333 and 337 per Gaudron J. ' 212 Id 338 per Gaudron J. 213 Id 323 per Toohey J; see below. 214 The arguments were that no implications can be drawn from State Constitutions because State Constitutions can be amended (even entrenched provisions) and because State legislative powers are plenary. Toohey J noted that these contentions were not to the point: id Id 316 per Toohey J, 338 per Gaudron J.

30 704 Nicholas Aroney democracy' which 'may fairly be garnered from the Act as a whole'. Toohey J thought that the 'specific dictate' of s 73(2)(c) was not to require equality of voting power - and it seems that this conclusion derived from the 'legislative history and statutory construction' of that section, specifically that s 73 was not conceived as being inconsistent with nor intended to effect a redistribution of the then large disparities between electorate sizes in WA Nevertheless, his Honour seems to have thought that these considerations had no impact on what could be derived from the structural implication of representative democracy garnered from the Act as a whole, as will be seen. Gaudron J, on the other hand, acknowledged that the disparity which existed in WA in 1978 meant that the 1889 Act allowed 'a somewhat more generous margin of variation in voting value' than would be allowed at a Commonwealth level under S8 7 and Nevertheless, for both Justices, the 1889 Act implied a concept of representative democracy. This concept, in tum, had to be interpreted according to 'current democratic standards'.218 When both justices turned to this question, they actually discussed the question primarily in relation to the position at the Commonwealth level, noting that fairly well the same considerations would apply to an analysis of the 1889 Act at the State level. Toohey J addressed this question in some detail. First, he noted that in previous cases,219 the Court had recognised that the Australian Constitution prescribes a system of representative democracy or representative government. His Honour noted that the terms had been used interchangeably in those cases. 220 But he then observed that: it is one thing to say that the Australian Constitution contains an implication of representative democracy. It is another to give content to that implication.221 How do we provide that 'content? We must go beyond the Constitution to find it. Thus Toohey J maintained that 'political, social and economic developments' inform the construction of the Constitution 'as a living force'. Thus it is the 'current perception' of representative democracy which is 'embodied' in the Constitution. 222 Whose perception? Toohey J cited with approval, an observation made in Burke v Western Australia by Burt CJ: It may well be that the distribution of electors in the geographical area will be so unequal as to offend one's notion of fairness or to offend one's understanding of the idea conveyed by the words 'representative democracy' In that case Burt CJ continued (not cited by Toohey J): but that is not to say that it offends against the idea of the sub-section conveyed by the words used which to me simply is that the members be chosen and that they be chosen directly and that they be chosen by the people, that is to say, in the context of an adult universal suffrage by the people qualified to vote within the member's electorate.224 However, Toohey J - to avoid the charge that the content he would give representative democracy rests on 'no more definite standard than the personal opinion of the judge who 216 ld per Toohey J. 217 ld 338 per Gaudron J. 218 ld 338 per Gaudron J; 329 per Toohey J (implicitly in the reference to 'one's understanding of representative democracy'). 219 ie, ACTV, Nationwide News, Theophanous and Stephens. 220 (1996) 134 ALR 289, 318 per Toohey Id 319 per Toohey J. See Aroney, supra note 146, Id 319, 321 per Toohey J. 223 ld 318, per Toohey J, citing Burke v Western Australia [1982] WAR 248, Burke v Western Australia [1982] WAR 248,253.

31 Representative Democracy Eclipsed? 705 declares it'225 - referred to the relative equality of electorate size required by the Commonwealth and other five State electoral systems. 226 He thought that this 'move towards equality of electorate size reflects a change in society's perception of the appf(~priate expression of the concept of representative democracy'.227 We might ask, however, why decisions made by the Parliaments of other States and by the Commonwealth should have a significant impact on the meaning to be given to the WA Constitution. When Toohey J refers to changes in 'society's perception', which 'society' is the relevant society? Since the Australian constitutional order allocates responsibility for the administration of State electoral systems to the States themselves, as part of the federal principle, it seems that the values of the community of WA are the relevant ones. If successive governments on both sides of the WA Parliament had declined to change the WA electoral system in any specifically relevant respect, what evidence is there that the values of the WA community as a whole negatived the specific distribution of voting power under the WA system? With respect, Toohey J gives us none. On the contrary, his Honour seems to have relied on the arguments propounded recently by Kirk and Creighton that the manner of argument in the Freedom ofspeech cases implies the existence of other rights, including equality of voting power, with significant implications for the WA system. 228 Toohey J drew on the authority of Canadian cases, in particular Reference re: Electoral Boundaries Commission Act. 229 Unlike Gaudron J however, his Honour thought that US cases were of little relevance since they turned on the intentions of the framers of the US Constitution and are influenced by the history of that country.230 Drawing on the Canadian authority,231 Toohey J thought that the goal of representative democracy is the 'effective representation of all citizens'. This is the touchstone. It implies a 'general principle of equality of voting power' as a minimum requirement of representative democracy. But this principle is not absolute. It is qualified by practicalities. It is also qualified by other implications of the same touchstone, namely that, as the majority in Reference re: Electoral Boundaries Commission Act said: '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'.232 The outworking of the general principle of effective representation of all was crucial in Toohey and Gaudron IJ's decision. First, the implication of representative democracy in the WA Constitution operates as an implied limitation and control on legislative powers; the matter is therefore justiciable. Nevertheless, because the principle ofequal voting power is not absolute, the Court must exercise restraint, allowing a significant degree of political 225 Engineers' Case (1920) 28 CLR 129, 142. The other charge made in the Engineers' Case (150), that the principle will vary according to the ever changing actual circumstances in which legislative power is exercised, seems to have been rejected as a relevant consideration. 226 (1996) 134 ALR 289, 321 per Toohey J. 227 ld 321 per Toohey J; cf 337 per Gaudron J. Toohey J also relied on the finding of the Constitutional Commission, Final Report ofthe Constitutional Commission (1988), vol 1, paragraph J Kirk, 'Constitutional Implications from Representative Democracy' (1995) 23 Federal Law Review 37, 50 and P Creighton, 'Apportioning Electoral Districts in a Representative Democracy' (1994) 24 University of Western Australia Law Review 78, 83, 89, cited by Toohey J: id 319, (1991) 81 DLR (4th) (1996) 134 ALR 289, per Toohey J; 333, per Gaudron J, collectively citing Wes6erry v Sanders 376 US 1 (1964), Reynolds v Sims 377 US 533 (1964), Wells v Rockefeller 394 US 542 (1969), Kirkpatrick v Preisler 394 US 526 (1969), White v Weiser 412 US 783 (1973), Karcher v Daggett 462 US 725 (1983). 231 There is, of course, the fact that the Canadian situation may well now have more in common with the US than with Australia, following the passage ofthe Charter ofrights and Freedoms, upon which the Electoral Boundaries Commission case was based. 232 (1991) 81 DLR (4th) 16, 36 per McLachlin J, cited by Toohey J: (1996) 134 ALR 289, 323.

32 106 Nicholas Aroney judgment to the legislature. 233 That margin of appreciation in practical tenns came down to whether the WA legislature had confined itself to legitimate aims and to means that were reasonably capable of being seen as appropriate and adapted to achieving those legitimate ends. 234 In light of the need to take geographical and community interests into account in order to facilitate the effective representation of all persons in the community, it was certainly legitimate in principle for the WA Parliament to deviate from absolute equality of electorate size in light of the vast size of the Stat~, and resulting difficulties of travel and communication. 235 However, the important point is that Toohey and Gaudron JJ thought that the means adopted in the WA system were disproportionate, principally because the scheme arbitrarily distinguished between metropolitan and non-metropolitan areas, with no in-built flexibility to adapt to shifts in population, and with no specific 'differential treatmentof different areas by reference to the particular representational needs of particular electorates. 236 Conclusion I suggest that one of the most important distinguishing features of the various approaches in McGinty (noting the near unanimity of approach in Langer and Muldowney) lies in the way the justices interpreted the interrelation between constitutionalism, federalism and democracy as fundamental implications of the Australian constitutional order. For Brennan CJ, Dawson, McHugh and Gummow JJ, the primacy of the text of the Commonwealth Constitution was consistently a decisive consideration. But their approach should not be castigated as a simplistic literalism. There are good, value-oriented, theoretical reasons for emphasising the importance of the text of the Constitution when the scope of constitutional implications is canvassed. Constitutionalism and the rule of law, particularly in the context of a written constitution, give us reason to expect judges to exercise restraint when drawing inferences from the Constitution itself. As Kirby J pointed out, 'extra-constitutional notions must be viewed with reservation... because they lack the legitimacy that attaches to the enactments ultimately sanctioned by the people [and] also because... they may thereby undermine a rule oflaw and invite the only effective substitute, viz the rule ofpower'.237 At the same time, McHugh and Gummow JJ gave particular attention to what Gummow J called 'the adaptation of representative government to federalism by the framers of the Constitution'. Through a careful examination of the federal features of the representative provisions of the Constitution, they demonstrated that inequality of voting power was in fact one of its striking features. Such inequality of voting power need not lack a value-oriented justification either. All judges accepted that electoral systems may appropriately take into consideration the need for the effective representation of particular, isolated communities. As minority judges Toohey and Gaudron JJ differed from the majority by fmding fault with the arbitrary and inflexible way that the Western Australian electoral system purported to give particular communities differential treatment. In coming to this conclusion, they saw the issue as being centrally concerned with democracy per se,238 and not with the specific provisions or with federal nature of the Constitution. 233 (1996) 134 ALR 289, per Toohey J. 234 Id 331 per Toohey J; 338 per Gaudron J. 235 Id per Toohey J. 236 Id 332 per Toohey J; 338 per Gaudron J. 237 Supra note 157. Cf G Winterton, 'Extra-constitutional notions in Australian constitutional law' (1986) 16 Federal Law Review 223, 234, 239; L Zines, 'Courts Unmaking the Laws', National Conference: Courts in a Representative Democracy, Canberra, November Cf McGinty (1996) 134 ALR 289, 332 per Toohey 1.