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One Vote One Value - An Implied Right Too Far?
The High Court Decision in McGinty & Ors v State of Western Australia
(1996)
Susan Downing
Law and Public Administration Group
"The Australian Constitution does not express all that is intended by
it - much of the greatest importance is implied" (1)
There has been much discussion in recent years about the role of the High
Court in finding implied rights in the Australian Constitution that are
not apparent from the actual text. In the recent case of McGinty the High
Court reversed the trend of finding implied rights and held by a majority
of 4:2 that the Constitution did not imply that one vote must mean one value.
In that case Deane J did not sit and the newly appointed judge Kirby J had
not yet taken up his position on the bench.
Facts
The plaintiffs were ALP members of the Legislative Assembly of Western Australia
and the Legislative Council of Western Australia. They challenged the validity
of the Western Australian laws governing the distribution of electorates
for both the Assembly and the Council. The basic premise of the challenge
was that there was a considerable disparity between the number of enrolled
voters in the metropolitan districts and the number of enrolled voters in
the non-metropolitan districts. The disparities, argued the plaintiffs,
were caused by the Acts Amendment (Electoral Reform) Act 1987 (WA) which
did not evenly divide electorates and, given the shifts in population in
the intervening years, culminated in a system whereby one electorate had
376% of the number of voters of another(2). The plaintiffs argued that the
disparities were so great as to undermine the principle of representative
democracy.
The Commonwealth, New South Wales, Victoria, Queensland, South Australia
and Tasmania all have legislation that requires electorates to be equal
and vary only by a specified percentage tolerance. In the case of the
Commonwealth, the maximum tolerance for the House of Representatives is
10%(3).
Earlier precedents
In Attorney-General (Cth)(Ex rel McKinlay) v The Commonwealth (1975) 135
CLR 1, the High Court held that although 'something approaching numerical
equality' of voters in each elector was important, it was not something
that was necessarily found in the Constitution as a guarantee of representative
democracy. However, since 1975 the High Court has been more inclined to
find implied rights in the Constitution (4) and this perhaps encouraged
(5) the litigants in McGinty to run a similar argument to the one defeated
in 1975. Had the argument in McGinty been accepted, McKinlay would have
been either distinguished or overruled.
In the case Stephens v West Australian Newspapers Ltd (1994) 182 CLR
211 at 232, Mason CJ, Toohey and Gaudron JJ (who were all in the majority
of the full court) held that the concept of representative democracy was
embodied in the Constitution and as a result of this embodiment there
was an implied freedom of communication about political matters. The minority
in Stephens did not agree. For example, McHugh J found:
. . . no support in the Constitution for an implication
that the institution of representative government or representative democracy
is part of the Constitution independently of the terms of sections 1,7,24,30
and 41 . . .
The plaintiffs argued in McGinty that because representative democracy
was implied in the Constitution, the concept of equality of voting power
(one vote, one value) must also be implied.
What the Judges in McGinty Held
The Majority View
Chief Justice Brennan found that the Commonwealth Constitution did not contain
any implication 'affecting disparities of voting power among the holders
of the franchise for the election of members of a State Parliament'.
Dawson J noted that there were many different types of electoral systems
and that the Constitution did not imply any particular system other than
that it must include 'direct choice by the people through those eligible
to vote at elections' His Honour also noted that there were no express
requirements in the Constitution for equal electorates and in fact section
7 and section 24 (dealing respectively with the election of Senators and
Members), when read together, contradicted the notion of equality. Those
two sections required that Original States have no less than 6 Senators
and no less than 5 Members - irrespective of the number of people residing
in the State. His Honour commented that it was open to parliament to exercise
its power to provide for electoral divisions that resulted in 'one vote,
one value'.
McHugh J found that the principle of representative democracy was not
contained in the Constitution and even if it were, whatever representative
democracy required at the turn of the century it did not now include a
requirement for equal numbers of electors in electoral divisions.
Gummow J noted that the Constitution 'did not entrench the secret ballot,
compulsory voting, preferential or proportional voting, nor any universal
adult franchise'. His Honour also observed that the Constitution did not
prescribe any authority or body to establish or monitor electoral divisions
within States or Territories. His Honour accepted that there could be
situations where the disparity in the numbers of electors could be so
'grossly disproportionate as to deny ultimate control by popular election'
but found that in the present case this had not occurred. This latter
point was made in some of the judgments in McKinlay.
The Minority View
Toohey J was able to distinguish the case of McKinlay on the grounds that
the majority in that case did not address the issue of whether the requirements
of a representative democracy included equality of voting power. Therefore,
His Honour found it unnecessary to overrule McKinlay. He went on to conclude
that provisions in the Western Australian legislation were at odds with
the principle of representative democracy. His Honour found the principle
of representative democracy to be implied in both the Commonwealth Constitution
and the Constitution of Western Australia.
Gaudron J was of the opinion that section 24 did not require complete
or even practical equality of electorate size. However, Her Honour felt
that the malapportionment of voters in metropolitan and non-metropolitan
areas was so great as
. . . to be distinctly at odds with democratic standards
revealed in the electoral laws of the Commonwealth and the other Australian
States . . .
Conclusion
Whilst the judgment in McGinty makes it clear that there is no constitutional
requirement for equal electorate size, this is not an absolute term. Whilst
the expectation might be that one vote means one value, the High Court's
majority judgment makes it clear that this is not constitutionally guaranteed.
Clearly the High Court would find in some cases that a disparity in the
number of electors between electorates could be so great as to offend the
principle in the Constitution that representatives are elected directly
by the people.
Footnotes
Murphy. J. p668 of McGraw-Hinds (Aust) Pty Ltd v Smith (1978) 24 ALR 175.
2. Brennan CJ at p3. The North Metropolitan electorate had 34,161 voters
at the 1993 election and the Mining and Pastoral electorate had 9,097
voters.
3. s66(3) of the Commonwealth Electoral Act 1918.
4. See for example, Bailey, P. Righting the Constitution Without a Bill
of Rights (1995)FLR v23, 1-36.
5. Dawson J at p20 stated that the plaintiffs were encouraged by recent
decisions of the High Court such as Nationwide News Pty Ltd v Wills (1992)
177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992)
177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104;
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Cunliffe
v The Commonwealth (1994) 182 CLR 272.
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