PART III THE PARLIAMENT

Transcription

1 Cnstitutinal and Administrative Law PART III THE PARLIAMENT I Representative Demcracy A The Cncept f Representative Demcracy Cass and Rubenstein describe three ntins f representatin inherent in the idea f representative demcracy: Representatin by gvernment The ability t vte fr representatives wh will act in the interests f vters; Representatin in gvernment The ability f any citizen t be elected int gvernment; and Diversity in representatins f gvernment Values and standards inherent in pinins, rules and law. B Australian Cnstitutinal Features Representative demcracy might well be described as a purely theretical plitical ideal in light f Australia s Cnstitutin. Certainly, representative demcracy is incnsistent with the circumstances surrunding the drafting and adptin f the Cnstitutin: 1 Wmen were largely excluded frm the cnstitutinal cnventins f 1891, 1897 and 1898; the representativeness f the drafting prcess is thereby undermined; The indigenus ppulatin and wmen were prevented frm vting n whether t adpt the Cnstitutin, with the exceptin f Suth Australia, which allwed wmen t vte since 1894; Wmen and indigenus peple were unable t vte fr Members f Parliament until 1902, when universal suffrage was granted in all states except Western Australia and Queensland, and with the ntable exceptin f abrigines It must therefre be dubtful whether representative demcracy was intended t exist as a distinct cnstitutinal dctrine in Australia. Cntemprary ideals have changed. Tw views exist abut the relevance: first, the literalist view that it is inapprpriate t transpse current plitical views abut representatin nt the text f the Cnstitutin as it was intended t read in Secnd (and mre ppular) is the view that nly the current legitimacy f representatin that is, participatin tday by all grups is relevant and that the Cnstitutin shuld be read by tday s standards. The issue then arises f hw well cntemprary representatin is achieved. Wmen still ccupy a dramatically smaller place in plitics than their numbers wuld suggest; hwever, vting is nw universal. Despite frmal equality f vting, hwever, there may still be identified substantive barriers t participatin: fr example, the party system (and pre-selectin) limits the success f independent r minr party candidates, wh may better represent minrity views. Varius structural impediments r disincentives als exist, including the prfessinal and familial kind. 1 D Cass and K Rubenstein, Representatin/s f Wmen in the Australian Cnstitutinal System (1995) 17 Adelaide Law Review 3, Page 1 f 28

2 Cnstitutinal and Administrative Law An idealised system f representatin may encmpass the fllwing characteristics: 1 A right t vte All adults with citizenship except: (i) Lng term expatriates (but shuld lng term residents be eligible?) (ii) Criminals currently serving a sentence fr a serius crime (attracting incarceratin f five years r greater) (iii) The mentally ill (iv) (Anyne wh is taxed? Or just: any member f the cmmunity? Any human?) (v) (Hmeless peple? A practical prblem with the current electral system is that peple with n fixed address are ineligible t vte; this includes many Abrigines) 2 Eligibility t stand fr electin Anyne eligible t vte shuld be able t frm a member f gvernment 3 Regular electins Members f gvernment shuld have a limited term f representatin 4 Equality f vtes Vtes must be equally weighed, a sentiment cmmnly expressed in the maxim, ne vte, ne value 5 Cmpulsry vting This is arguably incnsistent with representative demcracy 6 Infrmed vting Infrmatin abut candidacy, plitical parties and plicies shuld be available 7 Secret ballts Individuals shuld nt be made t reveal r cnnect t them their vte 8 Independent chice Vters shuld nt be harassed at the plling bth, assaulted with prpaganda r misleading prmises by candidates, r (mre cntrversially) expsed t taxpayer funded r inapprpriate campaign advertising 9 Free speech All members f the cmmunity shuld have the freedm t engage in cmmunicatins abut plitical issues, including discussins and critiques f current members r candidates 10 A clear vting system Preferential, first past the pst, etc 11 Accessible vting Place, time, prxy vtes, multiple languages, services fr blindness r ther disabilities, clear instructins 12 Accurate measurement Vtes shuld be recrded accurately and withut bias r alteratin f any kind; perhaps by cmputer (but with a measurable paper trail) Page 2 f 28

3 Cnstitutinal and Administrative Law II Chapter I The Parliament A Intrductin The Chapter which establishes the federal Parliament and deals with its exercise f legislative pwer is the lngest f any in the Cnstitutin. Its prvisins bradly embdy the ntins f federalism and representative demcracy. As will be seen, these tw principles are in cnflict t a cnsiderable degree. Representative demcracy entails that vtes shuld be accrded equal value. Hwever, this wuld have the effect f allwing mre ppulus states t dmineer smaller, less densely ppulated nes. T prevent this, the safeguard f an upper huse (the Senate) is built int the Cnstitutin, where representatin is equal as amng states (rather than vters, as in the Huse f Representatives). The Cnstitutin thus requires departure frm representative demcracy t achieve a federal balance that was agreeable t the smaller states resisting federatin. B The Senate The Senate s structure and cmpsitin is mdelled mre n the United States than the United Kingdm. Sectin 7 prvides fr equal representatin between states: Sectin 7 The Senate: The Senate shall be cmpsed f senatrs fr each state, directly chsen by the peple f the State Until the Parliament therwise prvides there shall be six senatrs fr each Original State. The Parliament may make laws increasing r diminishing the number f senatrs fr each State, but s that equal representatin f the several Original States shall be maintained and that n Original State shall have less than six senatrs. The senatrs shall be chsen fr a term f six years Summary f requirements: Equal numbers f senatrs between states existing at federatin; Nt fewer than six senatrs fr thse states; Parliament able t vary number subject t these requirements Senatrs sit fr terms f six years but n a rtating basis (such that half the senate is elected at each federal electin, every three years, and the ther half at the fllwing federal electin) Sectin 15 Casual vacancies: If the place f a senatr becmes vacant befre the expiratin f his term f service, the Huses f Parliament f the state fr which he was chsen, sitting and vting tgether shall chse a persn t hld the place until the expiratin f the term. Page 3 f 28

4 Cnstitutinal and Administrative Law As a result f s 15, if a senatr dies r retires mid-term, his r her replacement will be chsen by Parliament. C The Huse f Representatives The structure f the Huse f Representatives was frmulated with a view t prviding the clnies with an incentive t jin as riginal states. T this end, riginal members f the federatin are granted prtected status in the Huse f Representatives: Sectin 24 Cnstitutin f Huse f Representatives: The Huse f Representatives shall be cmpsed f members directly chsen by the peple f the Cmmnwealth, and the number f such members shall be, as nearly as practicable, twice the number f the senatrs. The number f members chsen in the several States shall be in prprtin t the respective numbers f their peple, and shall, until the Parliament therwise prvides, be determined, whenever necessary, in the fllwing manner But ntwithstanding anything in this sectin, five members at least shall be chsen in each Original State. Sectin 28 prvides fr a limited term f ffice (three years) and early disslutin by the Gvernr General: Sectin 28 Duratin f Huse f Representatives: Every Huse f Representatives shall cntinue fr three years frm the first meeting f the Huse, and n lnger, but may be sner disslved by the Gvernr General. This ensures that the executive is subject t renewal f its demcratic mandate every three years, if nt sner. In this way, direct accuntability is cnstitutinally guaranteed. Presumably, this prvisin als ensures that representatin in gvernment respnds with sufficient prmptness t changes in the cmpsitin r views f sciety (thugh sft plitical factrs and a general desire by pliticians t retain ffice may see such representativeness change even sner). The Cnstitutin als clearly cntemplates that Parliament may change the details f hw electins are t be held. Prvisins cntaining the phrase until the Parliament therwise prvides cnfer pwer n Parliament t enact regulatry legislatin. The head f pwer under which such laws are enacted is s 51(xxxvi) (matters t which this Cnstitutin refers with the afrementined statement). Page 4 f 28

5 Cnstitutinal and Administrative Law D Vting and Electins The Cnstitutin permits nly ne vte per persn when electing members f the Senate: Sectin 8 Qualificatin f Electrs: The qualificatin f electrs f senatrs shall be in each State that which is prescribed by this Cnstitutin, r by the Parliament, as the qualificatin fr electrs f members f the Huse f Representatives; but in the chsing f senatrs each electr shall vte nly nce. Sectin 8 makes reference t the requirements fr an electr f the Huse f Representatives. Similarly, an electr may vte nly nce fr a member f the Huse f Representatives: Sectin 30 Qualificatin f Electrs: Until the Parliament therwise prvides, the qualificatin f electrs f members f the Huse f Representatives shall be in each State that which is prvided by the law f the State as the qualificatin f electrs f the mre numerus Huse f Parliament f the State; but in the chsing f members each electr shall vte nly nce. These prvisins effectively prtect the integrity f the vte withut specifying any cncrete requirements (eg, gender, race, prperty hldings). This flexibility has allwed expansin f the franchise beynd that which was cntemplated during the Cnstitutinal Cnventins (21 years and ver, n wmen r abrigines, white prperty wners, etc). The precise regulatins gverning eligibility are set by Parliament. Cmmnwealth Electral Act 1918 (Cth) s 93: (1) Subject t sub-sectins (7) and (8), all persns: (a) wh have attained 18 years f age; and (b) wh are: (i) Australian citizens; r (ii) persns (ther than Australian citizens) wh wuld be British subjects shall be entitled t enrlment. (2) an electr whse name is n the Rle is entitled t vte at electins f Members f the Senate fr the State and at electins f Members f the Huse f Representatives (7) A persn wh is: (a) within the meaning f the Migratin Act 1958, the hlder f a temprary visa; r (b) an unlawful nn-citizen under that Act; is nt entitled t enrlment Page 5 f 28

6 Cnstitutinal and Administrative Law (8) A persn wh: (a) by reasn f being f unsund mind, is incapable f understanding the nature and significance f enrlment and vting; r (b) is serving a sentence f 5 years r lnger fr an ffence against the law f the Cmmnwealth r f a State r Territry; r (c) has been cnvicted f treasn r treachery and has nt been pardned; is nt entitled t have his r her name placed n r retained n any Rll r t vte at any Senate electin r Huse f Representatives electin. 1 A right t vte? The Cnstitutin des nt create any explicit right t vte (R v Pearsn; Ex parte Sipka). That this is s is attested t by the validity f the legislative prvisins abve, which deny vting rights t nn-citizens, criminals serving a lng sentence, the mentally ill, and the treasnus r treacherus. This is despite ss 7 and 24 f the Cnstitutin speaking f members as being directly chsen by the peple. It might be argued n the basis f these prvisins that an implied right t vte is imprted by the fact that a chice by peple wh engage in vting is envisaged by thse sectins. In McGinty v Western Australia, They J bserved that accrding t tday s standards, a system which denied universal adult franchise wuld fall shrt f a basic requirement f representative demcracy. 2 Justice Gaudrn als stated: Ntwithstanding the limited nature f the franchise in 1901, present circumstances wuld nt, in my view, permit senatrs and members f the Huse f Representatives t be described as chsen by the peple within the meaning f thse wrds in ss 7 and 24 f the Cnstitutin if the franchise were t be denied t wmen r t members f a racial minrity r t be made subject t a prperty r educatinal qualificatin. 3 These statements suggest that an attempt t deny franchise t a significant grup f peple wuld be cnstitutinally invalid. Althugh the exclusins utlined in s 93 abve appear reasnable, sme tensin exists between thse exclusins and the ntin f representative demcracy. 2 A right nt t vte? Sectin 245 f the Cmmnwealth Electral Act 1918 (Cth) establishes a system f cmpulsry vting and makes it an ffence t fail t register a vte at the ballt bx. It might be argued that, as ther cnstitutinal prvisins (eg, s 116) prvide fr bth freedms t d and nt t d an act, s t ss 7 and 24 prvide fr a right nt t vte. There are tw prblems with this argument. First, it is unclear whether either sectin creates a right t vte. Secnd, as Blackshield and Williams nte, s 245 des nt require that a persn make a chice (just that they present themselves at the plling bth and depsit a ballt). 4 2 McGinty v Western Australia (1996) 186 CLR 140, 201 (They J). 3 Ibid (Gaudrn J). 4 Tny Blackshield and Gerge Williams, Australian Cnstitutinal Law and Thery: Cmmentary and Materials (3 rd ed, 2002) 412. Page 6 f 28

7 Cnstitutinal and Administrative Law The Cnstitutin itself des nt mandate (nr preclude) cmpulsry vting. This is left as a questin fr the federal Parliament. Parliament may make such regulatins as are necessary t maintain the electral system, prvided such measures permit a free chice amng candidates fr electin, and, t the extent that they infringe plitical speech, that they are reasnably capable f being viewed as apprpriate and adapted t furthering r enhancing the demcratic prcess (per They and Gaudrn JJ), a legitimate legislative purpse (per Brennan CJ) (Langer v Cmmnwealth). Langer v Cmmnwealth (1996) HCA: Facts Albert Langer urged vters t vte 1, 2, 3, 3 s as t place bth majr parties equal last The Electral Cmmissin respnded that a frmal vte must use each number nly nce and number every square Langer seeks an injunctin t prevent the cunter-publicity, arguing that s 240 f the Cmmnwealth Electral Act 1918 (Cth) (which prescribed the methd f rdering candidates) was invalid because it was incnsistent with s 24 f the Cnstitutin He als argued that s 329A, which made it an ffence t prmte his methd f vting, infringed the implied cnstitutinal freedm f plitical cmmunicatin Issue Is the prescriptin f a particular methd f vting incnsistent with the Cnstitutinal requirement that representatives be directly chsen by the peple? Reasning Brennan CJ: Prvided the prescribed methd f vting permits a free chice amng candidates fr electin, it is within the legislative pwer f the Parliament It is nt t the pint that, if a ballt paper were filled in therwise than in accrdance with s 240, the vte wuld better express the vter s plitical pinin In my view, if the impairment f [the implied freedm f plitical cmmunicatin] is reasnably capable f being regarded as apprpriate and adapted t the achieving f the legitimate legislative purpse and the impairment is merely incidental t the achievement f that purpse, the law is within pwer The restrictin n freedm f speech impsed by s 329A is nt impsed with a view t repressing freedm f plitical discussin; it is impsed as an incident t the prtectin f the s 240 methd f vting They and Gaudrn JJ: Where curtailment [f the implied freedm] is reasnably capable f being viewed as apprpriate and adapted t furthering r enhancing the demcratic prcess the law will nt be invalid (at 334) Dawsn J (dissenting): [Sectin 329A] is a law which is designed t keep frm vters infrmatin which is required by them t enable them t exercise an infrmed chice The effect f s 329A in any practical sense, must, in my view, be t discurage, if nt prevent, persns frm imparting t eligible vters knwledge that the electral system permits ptinal r selective preferential vting. It cannt, therefre, be a law which is reasnably and apprpriately adapted t the achievement f an end which lies within the ambit f the relevant legislative pwer. Page 7 f 28

8 Cnstitutinal and Administrative Law Decisin It is pen t Parliament t chse hw t regulate the vting system (6:0) Sectin 240 is valid (5:1) Sectin 329A is als valid Langer is imprisned fr 10 weeks; his prmtin did impact n vting patterns: ver peple vted accrding t his methd in 1996, cmpared with 500% fewer peple in A state right t vte? Sectin 41 prvides that a state right t vte entails a Cmmnwealth right t vte. This prvisin was likely inserted t prtect citizens f a state frm being denied a vte in Cmmnwealth electins n the basis f their state f rigin: Sectin 41 Right f electrs f States: N adult persn wh has r acquires a right t vte at electins fr the mre numerus Huse f the parliament f a State shall, while the right cntinues, be prevented by any law f the Cmmnwealth frm vting at electins fr either Huse f the Parliament f the Cmmnwealth. Hwever, any adult persn must still be n the Cmmnwealth electral rll in rder t vte. (Such a persn has r acquires a right t vte at state electins, but is arguably nt prevented frm vting by the Cmmnwealth electral laws rather, certain requirements are placed n the exercise f that right.) Even if peple were s prevented, s 41 has been held t perate nly in relatin t electrs at the time f federatin. This arse in the cntext f a declaratin that the electral rlls clse sme time prir t the hlding f an electin (Zippker s Case, where a grup n the state, but nt Cmmnwealth, rll challenged their exclusin frm vting n the basis f s 41). Essentially, s 41 is read as: N adult persn wh has at the establishment f the federatin r acquires, befre the Cmmnwealth passes a universal franchise Act, a right t vte This demnstrates several things: first, that cnservatives imply things int the Cnstitutin, t! Secnd, that s 41 shuld nt be read in islatin, but rather in light f the text as a whle, including ss 8 and 30 ( until the Parliament therwise prvides ), which suggest that much f the electral regime established by the Cnstitutin was intended nly t perate until the Parliament des actually prvide therwise. Several ther reasns exist fr this restrictive interpretatin f s 41: Administrative efficiency Practical issues f wh is n the Rll n the day f the electin might easily be reslved if the list was finalised and distributed t plling bths prir t an electin; Plicy/federal reasns If states can cnfer upn their citizens a right t vte in federal electins, they may start Page 8 f 28

9 Cnstitutinal and Administrative Law changing rules abut vting t enable mre peple t vte; thus, sme states culd lwer the vting age t allw mre peple t vte in thse states; this wuld in turn be fllwed by ther states ding the same, until the purpse f an electin (infrmed decisinmaking) is cmpletely undermined; This is a very significant reasn fr interpreting s 41 in this way The Framers wuld never have intended fr unifrm Cmmnwealth franchise t be undermined by cnstruing s 41 n its terms Since s 41 perated nly at federatin, there is n-ne alive tday wh can have a right t vte under s 41. In this way, the High Curt read in wrds s as t make the sectin cmpletely inperative. This serves as a reminder that the Cnstitutin must be reading light f what curts say it means, rather than slely by reference t the text itself. It als illustrates hw, effectively, silent judicial amendment can be effected. 4 Senatrs f territries Because the Nrthern and Australian Capital Territries did nt exist at federatin, the Cnstitutin des nt prvide fr the existence f territry senatrs. After all, s 7 expressly states that senatrs will be elected fr each state by peple f that state. Once the territries were created they becme mere entities r extensins f the Cmmnwealth. N vting rights r senate representatives were given t their inhabitants until 1974, when legislatin prvided that tw senatrs wuld be elected fr each territry. Hwever, s 7 and s 122 f the Cnstitutin are in apparent cnflict. Sectin 7 utlines prcedures fr electin f the senate (the states Huse), while s 122 prvides that, in relatin t new territries, the Parliament may allw the representatin f such territry in either Huse f the Parliament t the extent and n the terms which it thinks fit. This is an extremely brad discretin relative t ther prvisins f the Cnstitutin, and it is internally incnsistent with s 7 (which as nted abve makes n reference s the pssibility f territry representatin). This issue was subsequently litigated (twice) in the Territry Senatrs cases. The Cmmnwealth argued that s 122 shuld be read as having pririty, s that the enabling legislatin was valid; hwever, the existing states argued that s 7 shuld dminate such that the legislatin was invalid. Western Australia v Cmmnwealth (1975) HCA ( First Territry Senatrs Case ): Issue Is the federal Parliament s purprted creatin f senate representatin fr the territries cnstitutinally valid? Reasning Masn J: Because the Framers cntemplated representatin ne day, ss 7 and 24 shuld be read as subject t s 122 T the Framers f the Cnstitutin in 1900 the existing cnditin f the territries was nt such as t suggest the immediate likelihd f their securing representatin in either Huse, but the pssibility f such a develpment ccurring in the future was undeniable. The prspect f tis ccurrence was freseen and in my view it fund expressin in s 122. Understd in this light, ss 7 and 24 make exhaustive prvisin fr the Page 9 f 28

10 Cnstitutinal and Administrative Law cmpsitin f each Huse until such time as Parliament might see fit t allw representatin t a territry under s 122. The states argued that if s 122 perates in this way, the Cmmnwealth culd, fr example, give the Nrthern Territry 500 senatrs by virtue f the fact that it can determine representatin t the extent and n the terms which it thinks fit, all but relegating the states t a minrity in what is suppsed t be their Huse His Hnur adpts a textual apprach, nting that the senate wn t pass a law that wuld see their influence reduced The first [bjectin] is the grim spectre cnjured up by the plaintiffs f a Parliament swamping the Senate with senatrs frm the territries, thereby reducing the representatin f the states disprprtinately t that f an ineffective minrity in the chamber. This exercise in imaginatin assumes the willing participatin f the senatrs representing the states in such an enterprise, ntwithstanding that it wuld hasten their jurney int plitical blivin. It disregards the assumptin which the framers f the Cnstitutin made, and which we shuld nw make, that Parliament will act respnsibly in the exercise f its pwers. In practice, this may nt always be the case: There is a strng party system and vting usually prceeds alng party lines In Queensland, the upper huse vted in 1922 t ablish itself entirely The states argument is further weakened by the fact that the Cnstitutin prvides n safeguard against the pursuit by Parliament f a similar curse at the expense f the riginal states in allwing fr the representatin f new states in the Senate. This is because there is n equivalent f s 7 in relatin t new states created under s 121 There is n safeguard against abuse f that pwer (the pwer t create new states), s it must likewise be assumed that Parliament will exercise their pwer respnsibly Murphy J: Sectin 122 prevails n the basis f principles f demcracy and the imprtance f representing all peple Uses a histrical analysis t determine the intentin f the Framers, identifying a strng demcratic theme in the Cnstitutin Barwick CJ (dissenting): Uses the principle f federalism t treat s 7 as prevailing ver s 122: the states Huse shuld nt be the Huse f the territries Where it is intended that the Parliament shuld have cntrl f a Cnstitutin prvisin, the Cnstitutin expressly and unambiguusly s prvides. by determining the extent f representatin, the numerical strength f the representatin prvided by the Cnstitutin itself, may be determined by the Parliament at the pint f, and as a term and cnditin f, the admissin f the new state. Sectin 122 is dealing with a ttally different matter, namely, the acceptance f new territries; that is t say, f new dependent territries. It is quite clear that thse wh reside in any such territry d nt becme peple f the Cmmnwealth fr the purpses f s 24 His Hnur als expresses cncern abut Parliament destrying the federal Page 10 f 28

11 Cnstitutinal and Administrative Law balance by prviding fr t many territrial senatrs the expressin is allw the representatin f such territry in either Huse f the Parliament. T speak f the representatin f a territry in the Huse f Representatives is t my mind an indicatin against, rather than twards, the cnclusin that representatin by membership f the Huse f Representatives is cntemplated. In that Huse the peple f the Cmmnwealth are represented: states and territries, in my pinin, cannt be The principles f federatin dictate that in the event f incnsistency s 7 prevail ver s 122: the expressin allw representatin must be cnstrued s as t be cnsnant with and indeed t preserve and nt t endanger r destry an essential feature f federatin, namely the maintenance f the Senate as the state Huse. In ther wrds s 7 is relevantly a dminant prvisin and nt subject t the exercise f the pwer given by s 122. The interpretatin which, in my pinin, is the crrect interpretatin is that s 122 wuld at mst permit the Parliament t allw the representatin f a territry in the Senate by a delegate wh wuld nt have the rights f a senatr fr a state, and wh in any case, by whatever name designated, wuld nt be entitled t be treated as a senatr fr a state r t vte n any questins befre the Senate. Representatin is pssible nly in a nn-vting capacity; territry senatrs cannt interfere with states vting rights and the federal balance Decisin (4:3) The prvisin creating territry senatrs is valid Shrtly after the First Territry Senatrs case, McTiernan J (wh was in the majrity) retired. He was replaced by Aickin J, wh was ppularly thught t be sympathetic t the minrity view. Cnsequently, the issue f territry senate representatin was raised just tw years later in the Secnd Territry Senatrs Case. Queensland v Cmmnwealth (1977) HCA ( Secnd Territry Senatrs Case ): Decisin (5:2) Althugh fur f the justices thught the result was errneus, tw f thse felt bund t fllw precedent, thus enlarging the size f the majrity! E One Vte, One Value The Cnstitutin requires departure frm the ntin that all vtes are t be accrded equal weight (McKinley s Case; McGinty s Case) Attrney General (Cmmnwealth); Ex rel McKinlay v Cmmnwealth Page 11 f 28

12 Cnstitutinal and Administrative Law (1975) HCA ( McKinlay s Case ): Facts McKinlay argued that the 1974 electin was invalid because it was premised n an electral distributin disprprtinate t the ppulatin f each electrate This was argued t infringe a principle f ne vte, ne value purprtedly enshrined by the Cnstitutin s that the Electral Act was invalid Issue Des the Cnstitutin imply that all vtes are t be accrded equal value? Reasning Barwick CJ: On cnstitutinal interpretatin The prblem is nt t be slved by resrt t slgans r t plitical catchcries r t vague and imprecise expressins f plitical philsphy. The questin f the validity f an Act is t be decided by the meaning f the relevant text f the Cnstitutin having regard t the histrical setting in which [it] was created The nly true guide and the nly curse which can prduce stability in cnstitutinal law is t read the language f the Cnstitutin itself, n dubt generusly and nt pedantically, but as a whle: and t find its meaning by legal reasning. I respectfully agree with Sir Owen Dixn s pinin that there is n ther safe guide t judicial decisins in great cnflicts than a strict and cmplete legalism. On cnstruing s 24 by reference t the American Cnstitutin N parallel can be drawn with the United States Cnstitutin, as it grew ut f plitical climate f revlt against British institutins and methds f gvernment, whereas Australia s develped with [their] encuragement (at 23 4) Unlike the American Cnstitutin, the Australian Cnstitutin is built upn cnfidence in a system f parliamentary gvernment with ministerial respnsibility On s 19 f the Electral Act The criteria fr electral distributins ensure a reasnable apprximatin f equality The legislatin is therefre valid Gibbs J, and McTiernan and Jacbs JJ: agreed with Barwick CJ Stephen J: als agreed, but added the fllwing: The characteristics f representative demcracy are nt fixed and precise; the varius permutatins exists alng a spectrum determined by n single requirement Three great principles, representative demcracy, direct ppular electin, and the natinal character f the lwer Huse, may each be discerned in the pening wrds f s 24. Nthing hwever is aid as t the cmpsitin f electral divisins. Only if sme requirement as t their cmpsitin necessarily flws frm ne r ther f these three principles can the plaintiffs submissins be made gd; and it can surely nly be frm the first the particular quality and character f the cntent f each ne f these three ingredients f representative demcracy, and there may well be thers, is nt fixed and precise. Page 12 f 28

13 Cnstitutinal and Administrative Law The electral system, with its innumerable details including numbers and qualificatins f representatives, single r multi-member electrates, vting methds and the varius methds whereby the significance and utcme f the vtes cast may be determined; in each there is scpe fr variety and n ne frmula can pre-empt the field as alne cnsistent with representative demcracy. representative demcracy is descriptive f a whle spectrum f plitical institutins, each differing in cuntless respects yet answering t thtat generic descriptin. The spectrum has finite limits but at n ne pint within the range f the spectrum des there exist any single requirement s essential as t b determinative f the existence f representative demcracy. Arguing that electral divisins must has as near as practicable equality f numbers ignres the histrical fact that many demcracies have nt had equality f numbers Sectin 24 embdies sme aspects f representative gvernment, but nt all Thus, there must be electrs, a system f selectin, and matters f which the Parliament can exercise pwer Hwever, the manner in which these aspects are characterised is nt fixed and precise Different suffrages have existed thrughut Australian plitical histry, as have different systems f electin (which cntinue t evlve tday) There is nt a single frmula determining the nature f an electin, and certainly nt ne that can be implied frm a Cnstitutin such as this Thus, the Cnstitutin des nt mandate a female vte, etc Hwever, the spectrum f representativeness des have sme limits: where an electral system lacks qualities s essential as t fall utside ntins f representative demcracy it will be invalid Hwever, this is a very wide spectrum It is n dubt true that smething appraching numerical equality f electrs within electrates is an imprtant factr just as adult suffrage, free f discriminatin n the grunds f race, sex, prperty r educatinal qualificatin will likewise aid in its attainment. But neither f these in abslute frm is necessarily imprted int the Cnstitutin by representative demcracy This means that numeric equality is imprtant, r smething appraching it, but that abslute quality is nt an essential quality Adult suffrage withut discriminatin is likewise imprtant but nt necessarily imprted int the Cnstitutin His Hnur s judgment suggests that there is nt even a requirement that distributins be as near as practicable t equal; a strict requirement f equality is als impssible The Cnstitutin leaves t legislatures the determinatin f which is the best variant f demcratic electin t be implemented: ss 24, 29, 30, 31, 34(i) and (ii) [T]he Cnstitutin is in n way pretended t any perfect embdiment f sme particular mdel f demcratic principles; the federatin f the clnies was an essentially practical and plitical affair, achieved after much negtiatin and the utcme f extensive cmprmise. The Electral Act is therefre valid Masn J: agreeing, adds the fllwing: All that the paragraph in s 24 requires is that there shuld be a direct chice f the members by the peple It is perhaps cnceivable that variatins in the numbers f electrs r peple in single member electrates culd becme s grssly disprprtinate as t raise Page 13 f 28

14 Cnstitutinal and Administrative Law a questin whether an electin held n bundaries s drawn wuld prduce a Huse f Representatives cmpsed f members directly chsen by the peple f the Cmmnwealth, but this is a matter quite remved frm the prpsitin that s 24 insists upn a practical equality f peple r electrs in single member electrates. Murphy J (dissenting): adpts a singularly unique apprach rejected by the ther justices Sectin 24 shuld be interpreted bradly The Cnstitutin is framed in brad and general terms and intended t apply t varying cnditins in the cmmunity The Curt shuld always lean t the brader interpretatin unless there is smething in the cntext r in the rest f the Cnstitutin t indicate that the narrwer interpretatin will best carry ut its bject and purpse (Jumbunna Cal Mine NL v Victrian Cal Miners Assciatin) The Curt shuld avid pedantic and narrw cnstructins in dealing with an instrument f gvernment (Australian Natinal Airways Pty Ltd v Cmmnwealth per Dixn J) Any law f the Parliament which deprived persns f a right t representatin r t vte n the grund f sex r lack f prperty wuld be incmpatible with the cmmand that the Huse f Representatives be directly chsen by the peple. It wuld cntravene s 24 and be thus uncnstitutinal. The phrase chsen by the peple requires abslute equality The phrase shuld be cnstrued in the same way as it was by the United States Supreme Curt but having as the standard f equality the alternatives f equal numbers f peple and equal numbers f electrs. The wrds must have sme meaning r mandate because therwise the Cnstitutin wuld nt require that the electin be demcratic This meaning is arrived at by the bvius imprtance placed n the phrase by its psitining in the pening sentence f that part f the Cnstitutin and the fact that it is expressed in the language f cmmand A further reasn: The demcratic theme f equal sharing f plitical pwer which pervades the Cnstitutin Anther is the absence f any ther means f redress fr thse deprived f an equal share f representatin, even where it is grssly unequal Finally, the phrase was taken directly frm the United States Cnstitutin Quting Jeffersn: Our peculiar security is the pssessin f a written Cnstitutin. Let us nt make it a blank paper by cnstructin. Decisin Majrity: s 24 f the Cnstitutin des nt require equality f vting; the fat that unequal representatin exists des nt entail that members are nt directly chsen ; what is imprtant is that vting is direct (unlike the United States) Hwever, sme uter bunds n the permissibility f disprprtinate electral sizes are set by Masn and Stephen JJ The plaintiffs failed in their challenge t the Electral Act prvisins Hwever, they succeeded in relatin t tw pints: First, ss 3 4 f the Representatin Act were invalid because they did nt cmply with the requirement that the calculatin f electral distributins be made whenever necessary (it was t infrequent) This meant that all federal electins since 1938 had been cnducted n Page 14 f 28

15 Cnstitutinal and Administrative Law the basis f uncnstitutinal statutry prvisins Were thse electins invalid, such that all the laws passed by Parliament in that time were invalid? Barwick CJ: n, n invalidatin is pssible Gibbs J: just because the Act is partially invalid, it desn t mean that electral distributins have nt been in their crrect prprtins; even if that was the case, the electins wuld still be valid because there is an verriding cnstitutinal duty t hld electins in certain circumstances Secnd, s 12(a) f that Act had a lphle whereby redistributin f electral divisins culd be pstpned indefinitely and s was invalid Fllwing the heyday f cnstitutinal implicatins in the early 1990s, McGinty s Case makes clear that implicatins must cme specifically frm the cnstitutinal text r structure. Limitatins cannt be secndarily derived frm abstract embdiments such as representative gvernment. McGinty v Western Australia (1996) HCA ( McGinty s Case ): Facts McGinty s Case cnsidered the validity f state electral divisins At the 1993 Western Australia state electin, the ppulatin f electral districts were very different between rural and metrplitan areas (eg, vs 9135) Mr James McGinty, the leader the ppsitin, challenged the electral bundaries n the basis that a system f representative gvernment (created by the bth Cmmnwealth and state Cnstitutins) mandated equality f vting pwer Issue Des the Cnstitutin require all vtes t have an equal value? Reasning The Cmmnwealth Cnstitutin des nt filter dwn t the states Even if it did, it des nt impse any requirement that vtes be accrded precisely equal weight Hwever, the state Cnstitutin can require ne vte, ne value ; des it? Majrity: the same wrds dn t have numerical equality in the state Cnstitutin (just like the Cmmnwealth equivalent) Minrity: agree that the Cmmnwealth Cnstitutin des nt cmpel states, but disagree that neither f them permit departure frm vting equality Brennan CJ: [168] Implicatins are nt devised by the judiciary; they exist in the text and structure f the Cnstitutin and are revealed r uncvered by judicial exegesis. N implicatin can be drawn frm the Cnstitutin which is nt based n the actual terms f the Cnstitutin, r n its structure The text f the Cnstitutin can be illuminated by reference t representative demcracy but the cncept neither alters nr adds t the text [170] The cnstitutinal questin fr determinatin in this case cannt be stated as thugh it asks whether the distributin f electral districts is cnsistent with a general principle f representative demcracy. The cnstitutinal questin is whether there is incnsistency with the text and structure f the Cnstitutin. [175] The structure f the Cnstitutin is ppsed t the ntin that the Page 15 f 28

16 Cnstitutinal and Administrative Law prvisins f Ch I might affect the cnstitutins f the states t which Ch V is directed. J The purpse f [the electral district] prvisin was nt the creatin f a new electral regime; it was simply privative f the uncntrlled r partly-cntrlled pwer f cnstitutinal amendment vested in the Parliament s 73(1). it is impssible t find an implicatin ther than the entrenchment f the system f electing members f the Cuncil and the Assembly by direct ppular vte. T find in s 73(2)(c) an implicatin that electral pwer be equally distributed amng the peple f the state wuld be t find a legislative intentin destructive f the means by which the enacting Parliament was elected. Dawsn J: [183] the frm f representative gvernment, including the type f electral system, the adptin and size f electral divisins, and the franchise are all left t Parliament by the Cnstitutin [184] There can be n implicatin that a particular electral system, f the many available, is required by the Cnstitutin. There is, f curse, the requirement that whatever system is emplyed it must result in a direct chice by the peple. [185] Once it is recgnised, as in my view it must be, that electrates f equal numeric size are nt a necessary characteristic f representative gvernment, the plaintiffs are driven in their argument find in the Cnstitutin a requirement that there be, as nearly as practicable, electrates f equal size. But that requirement is nwhere t be fund in any express prvisins f the Cnstitutin and this Curt has denied in McKinlay that there is any basis fr its implicatin. prblems f cmmunicatin and access in gegraphically large electrates utside a metrplitan area justify different numerical sizes in electral divisins. [188] It is fallacius reasning t psit a system f representative gvernment fr which the Cnstitutin des nt prvide and t read the requirements f that system int the Cnstitutin implicatin. The Cnstitutin des nt, fr these reasns, cntain by implicatin the principle expressed in the wrds ne vte, ne value, but the Parliament may, shuld it cnsider it desirable t d s, adpt that principle in exercising its pwer t prvide fr electral divisins. Indeed, it has dne s in accrdance with is view f the practicalities in the Cmmnwealth Electral Act 1918 (Cth).... in McKinlay McTiernan and Jacbs JJ suggested that at sme pint electral inequality might be incnsistent with a chice by the peple. They rejected, hwever, any requirement f abslute equality r nearly as practicable equality. In my view, bth had in mind extreme situatins markedly different frm that which exists under the relevant Western Australian legislatin. McHugh J: I cannt accept that a cnstitutinal implicatin can arise frm a particular dctrine that underlies the Cnstitutin. Tp-dwn reasning is nt a legitimate methd f interpreting the Cnstitutin. it is the text and the implicatins t be drawn frm the text and structure that cntain the meaning f the Cnstitutin. The plaintiffs seemed t accept that the principle [f representative demcracy] was a free-standing cnstitutinal prvisin smewhat similar t the hypthetical s 129 They J (dissenting), Gaudrn J (dissenting): There is an implicatin in the Cmmnwealth Cnstitutin that vtes are t be accrded equal value Hwever, their Hnurs agree with the majrity that this principle cannt Page 16 f 28

17 Cnstitutinal and Administrative Law influence state electins Nevertheless, a similar implicatin may be drawn frm s 73(2)(c) Decisin (5:2) The challenge is rejected The majrity emphasises that cnstitutinal implicatins must be funded in the text r structure f the relevant Cnstitutin and cannt be derived frm any verarching cncept f representative gvernment. (Blackshield and Williams at 430) As a result f McGinty s Case, neither at the Cmmnwealth nr the state levels f gvernment d the number f vters need be as near as practicable equal in each electrate. Parliament can vary the electral sizes. Hwever, there may cme a time when electral sizes are s disprprtinate that electins may n lnger be described as chsen directly by the peple. Such an electin wuld be invalid. This is, hwever, quite unlikely t ccur. Mulhlland v Cmmnwealth cnfirms that in determining the electral prcess, the Cnstitutin gives Parliament a wide range f chice. Althugh there is an verriding requirement that senatrs and members f the Huse f Representatives are t be directly chsen by the peple, there is substantial rm fr parliamentary chice abut hw t implement the details (per Gleesn CJ). Thus, the Cnstitutin des nt prescribe equality f individual vting pwer (McKinlay; McGinty) and the precise nature f representative gvernment is nt fixed and precise (McKinlay). Rather, the cncept f representative gvernment is descriptive f a whle spectrum f plitical institutins, fr which the Cnstitutin permits cnsiderable scpe fr variety (per McHugh J). It des nt mandate any particular electral system. Mulhlland v Cmmnwealth (2004) HCA: Facts Fllwing the 2001 federal electin, the Electral Cmmissin sught t exercise new pwers, which had been cnferred upn it by the Cmmnwealth Electral Amendment Act (N 1) 2000 (Cth), by scrutinising the Demcratic Labur Party ( DLP ) and whether it had the requisite 500 members needed fr it t be cnsidered a plitical party When the DLP refused t supply the names f its members, the Cmmissin gave ntice that it was cnsidering the Party s deregistratin Thereupn Mr JV Mulhlland, the Party s registered fficer and its principal Senate candidate at the 2004 electin, sught review f the Cmmissin s decisins and cnduct under the Administrative Decisins (Judicial Review) Act 1977 (Cth) He als sught a writ f prhibitin n the grund that the prvisins purprting t authrise deregistratin were invalid. Issue Can a limitatin be implied frm the wrds chsen by the peple t prevent the exercise f legislative pwer t regulate federal electins by restricting small parties frm expressing their views? Reasning The DLP argued that Figuera v Canada (Attrney General) lent supprt t their arguments that the prvisins were invalid Hwever, the Canadian requirement fr registratin was that a party have 50 r mre nminated candidates This is far mre nerus than a requirement f 500 members, and can be Page 17 f 28

18 Cnstitutinal and Administrative Law distinguished n this grund Additinally, the cnstitutinal principles arising under the Canadian Charter f Rights and Freedms were very different frm thse arising under the Australian Cnstitutin Gleesn CJ: [585] A ntable feature f ur system f representative and respnsible gvernment is hw little f the detail f that system is t be fund in the Cnstitutin, and hw much is left t be filled in by Parliament. In Lange v Australian Bradcasting Crpratin, this Curt said that the Cnstitutin prvides fr the fundamental features f representative gvernment. [R]epresentative demcracy takes many frms, and the terms f the Cnstitutin are silent n many matters that are imprtant t the frm taken by representative demcracy in Australia, at a federal r State level, frm time t time. This has allwed fr cnsiderable flexibility in and changes t the electral prcess ver time Fr example, while, in cmmn with mst demcracies, Australia nw has universal adult suffrage, this was nt always s. At the time f the Cnstitutin, mst wmen in Australia did nt have the right t vte. Abriginal Australians have nly cmprehensively had the vte since Unlike mst demcracies, Australia nw has a system f cmpulsry vting, but this did nt exist at Federatin. Members f the Huse f Representatives are nw elected by a system f preferential vting. One f the mst striking examples f the pwer given t Parliament t alter, by legislatin, the frm f ur demcracy cncerns the cmpsitin f the Senate. There was a majr change in the methd f electing senatrs in Fr many years befre then, the plitical party that dminated the Huse f Representatives usually cntrlled the Senate. With the intrductin f prprtinal representatin in 1948, there came t be a much larger nn-gvernment representatin in the Senate [which] cmbined with the system f prprtinal representatin, prduced the result that it is nw unusual fr a majr party t cntrl the Senate. This is f large plitical and practical significance. It was the result f legislative, nt cnstitutinal, change. The silence f the Cnstitutin n many matters affecting ur system f representative demcracy and respnsible gvernment has sme psitive cnsequences. Fr example, if then current ideas as t the electral franchise had been written int the Cnstitutin in 1901, ur system might nw be at dds with ur ntins f demcracy. The Cnstitutin is, and was meant t be, difficult t amend. Leaving it t Parliament, subject t certain fundamental requirements, t alter the electral system in respnse t changing cmmunity standards f demcracy is a demcratic slutin t the prblem f recnciling the need fr basic values with the requirement f flexibility. As t respnsible gvernment, the deliberate lack f specificity n the part f the framers f the Cnstitutin cncerning the functining f the Executive was seen, in Re Pattersn; Ex parte Taylr, as an advantage. Cnstitutinal arrangements n such matters need t be capable f develpment and adaptability. Cncepts such as representative demcracy and respnsible gvernment n dubt have an irreducible minimum cntent, but cmmunity standards as t their mst apprpriate frms f expressin change ver time, and vary frm place t place. Page 18 f 28

19 Cnstitutinal and Administrative Law The prvisins f the Australian Cnstitutin may be cntrasted with thse f its United States cunterpart: Barwick CJ in McKinlay: the United States Cnstitutin was drafted in a spirit f [23] revlt against British institutins and methds f gvernment, while the Australian Cnstitutin develped nt in antagnism t British methds f gvernment but [24] in c-peratin with and, t a great extent, with the encuragement f the British Gvernment The ne vte, ne value cncept is necessarily departed frm in the Australian Cnstitutin: Federalism itself influenced the frm f ur gvernment in ways that might be thught by sme t depart frm pure demcracy, if there is such a [587] thing. Equal State representatin in the Senate may be thught, and at the time f Federatin was thught by sme, t be incnsistent with a cncept f vting equality thrughut the Cmmnwealth. Vters in the smallest State (in terms f ppulatin) elect the same number f senatrs as vters in the largest State. In this respect, the value f vtes is unequal. That inequality is ne aspect f Australian demcracy which, exceptinally, is enshrined in the Cnstitutin. Where the Cnstitutin cntains an express prvisin fr ne frm f inequality in the value f vtes, it dictates at least sme cautin in frmulating a general implicatin f equality n that subject [T]he verriding requirement that senatrs and members f the Huse f Representatives are t be directly chsen by the peple impses a basic cnditin f demcratic prcess, but leaves substantial rm fr parliamentary chice, and fr change frm time t time. The methds by which the present senatrs, and members f the Huse f Representatives, f the Australian Parliament are chsen are significantly different frm the methds by which thse in earlier Australian parliaments were chsen. Judicial pinin has been divided n the presently irrelevant questin as t whether the Cnstitutin guarantees universal suffrage. N ne dubts, hwever, that Parliament had the pwer, as it did, t prescribe a minimum vting age, and, later, t reduce that age frm 21 t 18. Whether Parliament wuld have the pwer t fix a maximum vting age is a questin that has nt yet arisen The phrase chsen directly by the peple entails that the peple have a chice; this means that the style f the ballt paper and the frm f the electral prcess must cnfrm t certain fundamental requirements the chice required by the Cnstitutin is a true chice with an pprtunity t gain an appreciatin f the available alternatives. In the curse f argument, examples were given f frms f ballt paper prescribed fr use at electins which might nt cnfrm t that fundamental requirement. A ballt paper, fr example, that had printed n it nly ne name, being that f the gvernment candidate, requiring the name f any alternative candidate t be written in (a frm nt unknwn in the past in sme places), might s distrt the prcess f chice as t fail t satisfy the test. Here, the rules in questin preserve a full and free chice between the cmpeting candidates fr electin. The electrs are presented with a true chice. The available alternatives between candidates are set ut n the ballt paper. The prcess f chice by electrs is nt impeded r impaired determining the electral prcess in a representative demcracy requires regulatin f many matters, f majr and minr significance, Page 19 f 28