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Published online by Cambridge University Press: 01 January 2025
This paper argues that the High Court should accept that the Commonwealth Constitution embraces the concept of voter equality, such that systems of malapportionment may be liable to constitutional challenge. Specifically, it argues that ss 7 and 24 of the Constitution create a system of representative government and representative democracy which require that elections be free and fair, and that a malapportionment could potentially interfere with the system of representative democracy which the Constitution requires. Recent case law reinforces notions of equality in ss 7 and 24, which can be applied in the context of voter equality.
Thanks to two anonymous referees for helpful comments on an earlier draft.
1 Electoral (Redistribution Commission) and Another Act Amendment Bill 2015 (Qld). Parliament subsequently passed laws providing for an increase in seats, and other changes not presently relevant: Electoral (Improving Representation) and Other Legislation Amendment Act 2016 (Qld).
2 Clause 15 of the Electoral (Redistribution Commission) and Another Act Amendment Bill 2015 (Qld) proposed an increase in allowance given to large-scale (remote) electorates from 2% to 4%.
3 Orr, Graeme and Levy, Ron, ‘Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong Man’ (2009) 18 Griffith Law Review 638, 642.CrossRefGoogle Scholar
4 Robinson, Kirsten, ‘One Vote, One Value: The Western Australian Experience’ in Orr, Graeme, Mercurio, Bryan and Williams, George (eds) Realising Democracy: Electoral Law in Australia (Federation Press, 2003) 100, 106.Google Scholar
5 Birch, A H, Representative and Responsible Government (University of Toronto Press, 1964) 67Google Scholar; subsequently further amendments were made to reduce the disparity to two times, with a commitment to regular review: at 71.
6 Orr, Graeme, The Law of Politics: Elections, Parties and Money in Australia (Federation Press, 2010) 29–30.Google Scholar
7 Constitution Act 1902 (NSW) s 28.
8 Ibid s 28A.
9 Constitution Act 1934 (SA) s 77.
10 Electoral Boundaries Commission Act 1982 (Vic) s 9(2).
11 Electoral Act 1992 (Qld) s 45.
12 Electoral Act 1907 (WA) s 16G(2). Tasmania uses the Hare-Clark proportional representation system.
13 Commonwealth Electoral Act 1918 (Cth) s 73(4).
14 Ibid s 73(4)(a).
15 Queensland, Parliamentary Debates, Parliament, 21 April 2016, 1364 (Yvette D’ath).
16 Australian Electoral Commission, Elector Count by Division, Age Groups and Gender for All States and Territories, (18 July 2016) Australian Electoral Commission <http://www.aec.gov.au/Enrolling_to_vote/Enrolment_stats/elector_count/index.htm>.
17 Evenwel v Abbott (14-940), 4 April 2016).
18 Constitution Act 1902 (NSW) s 28; Constitution Act 1975 (Vic) s 34; Constitution of Queensland Act 2001 (Qld) s 10; Constitution Act 1934 (SA) s 27; Constitution Act 1889 (WA) s 73(2)(c); and Constitution Act 1934 (Tas) s 28.
19 (1996) 186 CLR 140, 211 (Toohey J), 223 (Gaudron J) (‘McGinty’).
20 Ibid 216.
21 Unions NSW v NSW (2013) 252 CLR 530, 550 (French CJ, Hayne, Crennan, Kiefel and Bell JJ), and Keane J (582) (‘Unions’).
22 I include within ‘constitutional provision’ implicit detail. So, for example, if it were clear that a particular house was specifically intended to preserve the voice of regions, this would be relevant in assessing the principle of voter equality as applied to that house. (This of course is subject to an argument that the intention of the founding fathers is not determinative, controlling or important in interpreting constitutional text today). The argument is academic in Australia given the clear express constitutional requirement that there be a minimum number of senators in the upper house from each original state. It is not suggested that this would be overturned by constitutional interpretation, in favour of voting equality for the upper house in Australia. As a result, in effect my argument relates to the House of Representatives at federal level, and both houses of parliament at state level. This is how the principle operates in the United States: Reynolds v Sims, 377 US 533 (1964).
23 In the United States, total population, rather than total number of voters, is typically used as the basis for districting: Evenwel v Abbott (14-940, 4 April 2016). This does not make United States comparisons inapposite.
24 (2010) 243 CLR 1 (‘Rowe’).
25 Levy, Ron, ‘Drawing Boundaries: Election Law Fairness and the Democratic Consequences’ in Tham, Joo-Cheong, Costar, Brian and Orr, Graeme (eds), Electoral Democracy: Australian Prospects (Melbourne University Publishing, 2011) 58.Google Scholar
26 Section 7 contains a similar provision with respect to the Senate.
27 For example, proposals in 1974 and in 1988 were rejected by the people. I do not elaborate on this point here; the conventional view is the fact that a proposal was not accepted by the people at a referendum does not affect the High Court's interpretation of relevant provisions in the Constitution: New South Wales v Commonwealth (2006) 229 CLR 1, 100 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (‘WorkChoices’).
28 (1975) 135 CLR 1 (‘McKinlay’). The 10% was at the time of redistribution; between redistributions the disparity could be much greater.
29 Brooks, Adrian, ‘A Paragon of Democratic Virtues? The Development of the Commonwealth Franchise’ (1993) 12 University of Tasmania Law Review 208Google Scholar; Williams, George and Hume, David, Human Rights Under the Australian Constitution (Oxford University Press, 2nd ed, 2013) ch 6.Google Scholar
30 McKinlay (1975) 135 CLR 1, 19 (Barwick CJ), 44 (Gibbs J), 58 (Stephen J), 62 (Mason J).
31 Ibid 20 (Barwick CJ), 45 (Gibbs J).
32 Ibid 21. It was limited to notions that people voted for politicians directly, rather than through an electoral college system, and that it should be a ‘popular election’. The claim the United States Constitution implied no particular theory of politics or governance supported the past position of that country's Supreme Court denying any constitutional argument against malapportionment involving more than eight times the number of voters in some electorates compared with others: Colegrove v Green, 328 US 549 (1946). The decision is no longer good law: Ortiz, Daniel, ‘Got Theory?’ (2005) 153 University of Pennsylvania Law Review 459, 465.CrossRefGoogle Scholar
33 McKinlay (1975) 135 CLR 1, 22 (Barwick CJ), 45 (Gibbs J).
34 Ibid 46.
35 Ibid 56.
36 Ibid 56–7.
37 Ibid 57.
38 Ibid.
39 McTiernan and Jacobs JJ suggested the words of s 24 ‘embrace the notion of equality of numbers in so far as the choice of members must be by the people of the Commonwealth. Inequality of distribution of numbers between districts or divisions in respect on which members are chosen … may lead to a choice on the basis of such an unequal distribution being unable to be described as a choice by the people of the Commonwealth’: at 35. They found 10 per cent variance between electorates was consistent with s 24: at 37; but ‘gerrymandering’ could be inconsistent with s 24: at 37. Mason J took a similar view at the point of ‘grossly disproportionate’ boundaries: at 61; electoral law academic Graeme Orr takes the same position: ‘at some point, it must be that malapportionment denies a real ‘choice’ by ‘the people’: Orr, above n 6, 26–7.
40 McKinlay (1975) 135 CLR 1, 65.
41 Ibid 71.
42 Ibid 72.
43 Ibid. Murphy J said that ‘[t]he purpose of the closing words of s 30 is not merely to prevent multiple voting. The command … was intended to be effective. The effect cannot be destroyed by diminishing the value of votes by having divisions with either widely differing numbers of electors returning the same number of members, or divisions of the same number of electors but represented by different numbers of members. This would devalue or debase the vote as much as multiple voting … the mischief that the provision in s 30 was designed to cure arises just as much in unequal voting as in multiple voting’.
44 Ibid 73.
45 (1996) 186 CLR 140.
46 Nationwide News v Wills (1992) 177 CLR 1 (‘Nationwide News’); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘ACTV’).
47 McGinty (1996) 186 CLR 140 (Brennan CJ Dawson McHugh and Gummow JJ). Toohey and Gaudron JJ dissenting.
48 Ibid 170, [232] (McHugh J). As Greg Carne points out, a weakness in the majority position is that it does not analyse whether restrictions based on notions of voter equality were necessarily only possible if the freestanding principle were accepted, or could be derived from the text and structure of the Constitution: Carne, Greg, ‘Representing Democracy or Reinforcing Inequality? Electoral Distribution and McGinty v Western Australia’ (1997) 25 Federal Law Review 351, 368.Google Scholar
49 McGinty (1996) 186 CLR 140, 170 (McHugh J).
50 Ibid 173–5.
51 Ibid 183.
52 Ibid 184.
53 Ibid 185, 284 (Gummow J).
54 Ibid 186, 280 (Gummow J).
55 Ibid 188.
56 Ibid 189.
57 Ibid 237; Gummow J pointed to s 128 to make the same point: at 275.
58 Ibid 240–2, 284 (Gummow J).
59 Ibid 240, 270–1 (Gummow J).
60 Ibid 277.
61 Ibid 279, 286.
62 Ibid 283.
63 Ibid 201.
64 Ibid 202.
65 Ibid 203.
66 Ibid 204.
67 Ibid 211.
68 Ibid 222.
69 Ibid.
70 ‘To pursue the identification of what is said to be the framers’ intention, much more often than not, is to pursue a mirage. It is a mirage because the inquiry assumes that it is both possible and useful to attempt to work out a single collective view about what now is a disputed question of power, but then was not present to the minds of those who contributed to the debates’: WorkChoices (2006) 229 CLR 1 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
71 Langer v Commonwealth (1996) 186 CLR 302, 334 (Toohey and Gaudron JJ) (‘Langer’); Muldowney v South Australia (1996) 186 CLR 352, 378 (Gaudron J) (‘Muldowney’). The Fitzgerald Report, revealing large-scale corruption among police and some politicians, stated that ‘a fundamental tenet of … parliamentary democracy is … regular, free, fair elections’: Report of a Commission of Inquiry Pursuant to Orders in Council (1989) 127–8.
72 Langer (1996) 186 CLR 302, 342 (McHugh J).
73 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 (‘Mulholland’).
74 Ibid 261. He indicated that if parliament sought to ‘entrench its power in a disproportionate way’, s 24 may provide a remedy; in Attorney-General (Western Australia) v Marquet (2003) 217 CLR 545, 577 (‘Marquet’), Kirby J noted tolerance for disparity in the value of votes had declined since federation, and found the Western Australian electoral system, which weighted non-urban votes two to three times greater than urban votes, infringed equal suffrage. Kirby cited art 25 of the International Covenant on Civil and Political Rights for this principle; he would agree that the principle was applicable through s 24 of the Commonwealth Constitution and state equivalents.
75 Roach v Electoral Commissioner (2007) 233 CLR 162, 174 (Gleeson CJ) (‘Roach’), subsequently accepted by a majority of the court in Rowe v Electoral Commissioner (2011) 243 CLR 1 (‘Rowe’); See Allan, James, ‘The Three ‘Rs’ of Recent Australian Judicial Activism: Roach, Rowe and (No)‘Riginalism’ (2012) 36 Melbourne University Law Review 743Google Scholar; Orr, Graeme, ‘The Voting Rights Ratchet: Rowe v Electoral Commissioner’ (2011) 22 Public Law Review 83Google Scholar; Arcioni, Elisa, ‘The Core of the Australian Constitutional People—“The People” as the Electors’ (2016) 39(1) University of New South Wales Law Journal 421.Google Scholar
76 Roach (2007) 233 CLR 162, 198 (Gummow, Kirby and Crennan JJ).
77 Ibid 174.
78 Ibid 198 (Gummow, Kirby and Crennan JJ).
79 Ibid 198–9 (Gummow Kirby and Crennan JJ).
80 Ibid 173 (Gleeson CJ), 188–9 (Gummow Kirby and Crennan JJ); replicated in Rowe (2011) 243 CLR 1, 18 (French CJ).
81 (2011) 243 CLR 1, 21 (French CJ), 61 (Gummow and Bell JJ).
82 Ibid 18 (French CJ), 115–17 (Crennan J); Twomey, Anne, ‘Rowe v Electoral Commissioner—Evolution or Creationism?’ (2012) 31 University of Queensland Law Journal 181, 185.Google Scholar
83 Ibid 38 (French CJ).
84 Ibid 112.
85 Ibid 116.
86 Ibid 117.
87 Ibid 48. George Williams and David Hume concluded the comments by Gummow, Crennan and Bell JJ in Rowe may mean the question of whether the Constitution mandated equality of voting power was ‘alive again’: Williams and Hume, above n 29, 253.
88 Rowe (2011) 243 CLR 1, 12, referring to the vote of every elector and stating that ss 7 and 24 confers rights on individuals.
89 Williams and Hume, above n 29, 254.
90 ACTV (1992) 177 CLR 106, 137 (Mason CJ), 188 (Dawson J), 210 (Gaudron J), 229 (McHugh J); Nationwide News (1992) 177 CLR 1, 47–50 (Brennan J).
91 Ibid 135 (Mason CJ).
92 Ibid 138; Nationwide News (1992) 177 CLR 1, 72 (Deane and Toohey JJ).
93 ACTV (1992) 177 CLR 106, 161 (Brennan J).
94 Nationwide News (1992) 177 CLR 1, 72; in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 174 (‘Theophanous’) Deane J referred to the ‘intrinsic equality of all human beings’ in relation to representative government.
95 ACTV (1992) 177 CLR 106, 139–40.
96 (1994) 182 CLR 104.
97 (1992) 177 CLR 106, 229.
98 Theophanous (1994) 182 CLR 104, 200.
99 Ibid 199; see Aroney, Nicholas, ‘Justice McHugh, Representative Government and the Elimination of Balancing’ (2006) 28 Sydney Law Review 505Google Scholar; Aroney, Nicholas, ‘Representative Democracy Eclipsed? The Langer, Muldowney and McGinty Decisions’ (1996) 19 University of Queensland Law Journal 75.Google Scholar
100 Theophanous (1994) 182 CLR 104, 201.
101 (1994) 182 CLR 211, 232 (Mason CJ Toohey and Gaudron JJ); reference to ‘representative democracy’ in the context of ss 7 and 24 appears in Mulholland (1996) 186 CLR 352, 188 (Gleeson CJ).
102 (1997) 189 CLR 520, 566–7 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) (‘Lange’).
103 Aroney, ‘Representative Democracy Eclipsed? The Langer, Muldowney and McGinty Decisions’, above n 99, 96; Carne, above n 48, 370.
104 McGinty (1996) 186 CLR 140, 203–4 (Toohey J), 222 (Gaudron J); Nationwide News, 72 (Deane and Toohey JJ); ACTV (1992) 177 CLR 106, 161 (Brennan J); Theophanous (1994) 182 CLR 104, 174 (Deane J); Langer (1996) 186 CLR 302, 334 (Toohey and Gaudron JJ); Mulholland (2004) 220 CLR 181, 261 (Kirby J).
105 (1992) 174 CLR 455 (‘Leith’).
106 Ibid 485.
107 Ibid 486.
108 Ibid 502.
109 Ibid 475.
110 Cameron v The Queen (2002) 209 CLR 339, 352 (McHugh J), 369–71 (Kirby J); Wong v The Queen (2001) 207 CLR 584, 608 (Gaudron, Gummow and Hayne JJ), 617 (Kirby J); Lowe v The Queen (1984) 154 CLR 606, 611 (Mason J); Nicholas v The Queen (1998) 193 CLR 173, 208 (Gaudron J); Thomas v Mowbray (2007) 233 CLR 307, 442 (Kirby J).
111 Detmold, M J, ‘Australian Constitutional Equality: The Common Law Foundation’ (1996) 7 Public Law Review 33, 43.Google Scholar
112 Others may see this as ‘equality’ in that States have equal numbers of Senators, and each is guaranteed the same minimum number of members of the lower house.
113 This cannot be taken too far. Peter Creighton's research on the lead-up to passage of the Commonwealth Electoral Act 1918 (Cth) suggests real concern among federal politicians, some of whom had been founding fathers, that electorates contain approximately equal numbers: Creighton, Peter, ‘Apportioning Electoral Districts in a Representative Democracy’ (1994) 24 University of Western Australia Law Review 78, 86.Google Scholar
114 McKinlay (1975) 135 CLR 1, 19–20; Gibbs J also noted that, at federation, voting equality was not required and colonies were free to set their electoral boundaries as they saw fit: at 45; Stephen J reflected on that, and the fact the franchise was not universal: at 58.
115 Ibid 174 (Brennan CJ), 189 (Dawson J).
116 Ibid 240: ‘at federation … representative government was not perceived as requiring that electoral divisions should be numerically equal. Nor was representative government perceived as requiring that all adult persons should be entitled to vote’ (McHugh J), 279, 283 (Gummow J).
117 Williams and Hume, above n 29, 165: ‘it is unclear why the franchise … should have become entrenched over time while the concept of equality of voting power … has not’; Orr, above n 6, 21: ‘historically, the movement to universal suffrage rested on the ideal of one-person, one-vote’; Robinson, above n 4, 101: ‘electoral equality, like the universal franchise, is now recognised as one of the essential features of a representative democracy’; Carter, Mark, ‘Reconsidering the Charter and Electoral Boundaries’ (1999) 54 Dalhousie Law Journal 53, 74Google Scholar: the right to vote ‘represents an articulation of the understanding that a legitimate ruler's authority is exercised at the pleasure of an equal people, all of whom have retained their sovereignty and are equally possessed of certain natural liberties’.
118 Colegrove v Green, 328 US 549, 570–1 (1946),: ‘the constitutionally guaranteed right to vote and the right to have one's vote counted clearly imply the policy that state electoral systems …should be designed to give approximately equal weight to each vote cast … (referring to both the Fourteenth Amendment and art 1 s 2 of the United States Constitution) … a state legislature cannot deny eligible voters the right to vote for Congressmen and the right to have their vote counted. It can no more destroy the effectiveness of their vote in part and no more accomplish this in the name of apportionment than under any other name’ (Douglas J, dissenting here, but whose views buttressed later change in the law).
119 (2007) 233 CLR 162, 174 (Gleeson CJ); Gummow Kirby and Crennan JJ do so less explicitly, but find a law denying prisoners a right to vote is unconstitutional because it unjustifiably interferes with maintenance of representative government: at 198–202.
120 McKinlay (1975) 135 CLR 1, 73 (Murphy J); McGinty (1996) 186 CLR 140, 201 (Toohey J), 222 (Gaudron J); Langer (1996) 186 CLR 302, 342 (McHugh J); Mulholland (2004) 220 CLR 181, 261 (Kirby J).
121 The exception was McHugh J, who accepted universal suffrage but never accepted voter equality. In contrast, Murphy Toohey Gaudron and Kirby JJ (in different cases) accepted both universal suffrage and voter equality.
122 Graeme Orr notes possible implications of Roach for the debate about constitutionalising one vote one value: ‘by analogy with the reasoning in Roach … it may not be possible for a parliament to now backtrack to a laxer tolerance than 10 per cent’: Orr, above n 6, 30.
123 Roach (2007) 233 CLR 162, 174 (emphasis added).
124 (1975) 135 CLR 1, 62.
125 Katzenbach v Morgan, 384 US 641, 651 (1966) (Brennan J, for Warren CJ, Black, Douglas, Clark, White and Fortas JJ); Cohen, William, ‘Congressional Power to Interpret Due Process and Equal Protection’ (1975) 27 Stanford Law Review 603, 614CrossRefGoogle Scholar; Meyer, Jeremy, ‘Ratchet Plus? Possible Constitutional Foundations for the Religious Freedom Restoration Act 1993’ (1995) 48 Urban Law Annual: Journal of Urban and Contemporary Law 343Google Scholar; Lee, Rex, ‘The Religious Freedom Restoration Act: Legislative Choice and Judicial Review’ (1993) Brigham Young University Law Review 73Google Scholar; Orr, above n 75.
126 McCloy v New South Wales (2015) 89 ALJR 857, 862 [2] (French CJ, Kiefel, Bell and Keane JJ) (‘McCloy’); adapting the test in Lange (1997) 189 CLR 520, 567–8 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ), as adapted in Coleman v Power (2004) 220 CLR 1, 50 (McHugh J), with whom Gummow and Hayne JJ (at 77–8) and Kirby J (at 82) agreed. Three members of the Court in McCloy continued to apply the two-stage Lange test rather than the three stage test: Gageler J at 883 [125]; Nettle J at 899 [220] and Gordon J at 912 [306].
127 McCloy (2015) 89 ALJR 857, 862–3 [2], 875–6 [80]–[81], 876–7 [87] (French CJ, Kiefel, Bell and Keane JJ).
128 References to the United States First Amendment in relation to gerrymandering include: Vieth v Jubelirer, 541 US 267, 314 (2004) (Kennedy J), 317, 324 (Stevens J) (2004); League of United Latin American Citizens v Perry, 548 US 399, 462 (2006) (Stevens J, with whom Breyer J agreed); Schultz, David, ‘The Party's Over: Partisan Gerrymandering and the First Amendment’ (2007) 36 Capital University Law Review 1Google Scholar; Kamuf, Joann, ‘“Should I Stay or Should I Go?”: The Current State of Partisan Gerrymandering and a Proposal for the Future’ (2005) 74 Fordham Law Review 163.Google Scholar
129 Mulholland (2004) 220 CLR 181, 195–6 (Gleeson CJ), 219 (McHugh J), 247 (Gummow and Hayne JJ), 277 (Kirby J).
130 Doe v Reed, 561 US 186 (2010) where the Court accepted the expressive value of a referendum petition; cf Nevada Commission on Ethics v Carrigan, 564 US 117 (2011).
131 Winkler, Adam, ‘Expressive Voting’ (1993) 68 New York University Law Review 330.Google Scholar Winkler notes ‘voting is essentially an expressive exercise. By voting, the individual shows something of herself, displaying desires, beliefs, judgments and perceptions’: 333; Orr, Graeme, ‘The Choice Not to Choose: Commonwealth Electoral Law and the Withholding of Preferences’ (1997) 23 Monash University Law Review 285Google Scholar; Brennan, Geoffrey and Lomasky, Loren, Democracy and Decision: The Pure Theory of Electoral Preference (Cambridge University Press, 1993).CrossRefGoogle Scholar
132 Levy v Victoria (1997) 189 CLR 579 (‘Levy’).
133 Ibid 595 (Brennan CJ), 625 (McHugh J).
134 Unions (2013) 252 CLR 530, 555 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
135 Monis v The Queen (2013) 249 CLR 92, 139 (Hayne J) (‘Monis’).
136 Ibid 212 (Crennan, Kiefel and Bell JJ).
137 Ibid 212–13 (Crennan Kiefel and Bell JJ).
138 Ibid 145 (Hayne J).
139 Queensland, Parliamentary Debates, Parliament, 21 April 2016, 1362 and 1366; arguments are summarised in Brugger, Bill and Jaensch, Dean, Australian Politics: Theory and Practice (Allen and Unwin, 1985) 213.Google Scholar
140 Queensland, Parliamentary Debates, Parliament, 21 April 2016, 1362 (Ian Walker).
141 Ibid 1367 (Cameron Dick).
142 ‘Legislators are elected by voters, not farms or cities or economic interests. The argument that the special economic contribution and unique concerns of rural electors are deserving of extra representation in parliament is not accepted … there are many interest groups in the community who make important contributions to the economic or other well-being of the nation. If has not been suggested that those creating wealth (in other ways) deserve extra representation in parliament’: Constitutional Commission, Commonwealth, Report of the Advisory Committee on Individual and Democratic Rights Under the Constitution (1987) [80].
143 ACTV (1992) 177 CLR 106, 169 (Deane and Toohey JJ), 143 (Mason CJ), 234–5 (McHugh J); Mulholland (2004) 220 CLR 181, 200 (Gleeson CJ); Hogan v Hinch (2011) 243 CLR 506, 555–6 (Gummow Hayne Heydon Crennan Kiefel and Bell JJ) (‘Hogan’); Wotton v Queensland (2012) 246 CLR 1, 16 (French CJ, Gummow Hayne, Crennan, and Bell JJ), 30 (Kiefel J) (‘Wotton’).
144 It should be conceded that notions of ‘equality’ in this context can mean different things to different people. While I favour a relatively simple notion of equality in number of electors within electorates, others might argue that equality means (or should mean) equality of access to a representative, or notions of group or communal equality. I generally do not favour notions of drawing boundaries to bind together racial or ethnic groups within an ‘enclave’, nor do I believe that it is necessary to weight remote electorates given their size issues to make them more ‘equal’ to ‘normal’ geographically sized electorates. However, I acknowledge that the very meaning of the word ‘equality’ is contested in this space.
145 ACTV (1992) 177 CLR 106, 139–40 (Mason CJ); Moore's comments were also quoted in McCloy (2015) 89 ALJR 857, 867 [27] (French CJ, Kiefel, Bell, and Keane JJ, 880 [110] (Gageler J), 899 [219] (Nettle J), 914 [318] (Gordon J). It should be conceded that Moore's comments were in the context of his drawing of a distinction between the Constitutions of Australia and the United States, the latter including an express bill of rights as part of a ‘spirit of distrust’. His was an era of parliamentary supremacy and faith in political institutions as sufficient protectors of rights, a faith that is now seen by many as misplaced. Moore's comments are considered of most relevance to the current context in expressly linking the importance of an equal share in political power with the Australian constitutional design, including sparse express rights protection.
146 ACTV (1992) 177 CLR 106, 161 (Brennan J).
147 Nationwide News (1992) 177 CLR 1, 72 (Deane and Toohey JJ).
148 (1992) 177 CLR 106
149 Ibid 146 (Mason CJ), 175 (Deane and Toohey JJ).
150 (2015) 89 ALJR 857.
151 Ibid 870 [45].
152 Ibid 869 [41].
153 Ibid 899 [222].
154 Ibid 902 [241].
155 Ibid 907 [266].
156 Ibid 920–1 [365].
157 Robinson, above n 4, 101: ‘the full expression of the democratic principle is … one person, one vote; one vote, one value. This maintains that as all people are equal under the law, so their votes should count equally in determining the government of the day’.
158 Hughes, Colin A and Costar, Brian, Limiting Democracy: The Erosion of Electoral Rights in Australia (UNSW Press, 2006), 8.Google Scholar
159 Dicey, Albert Venn, An Introduction to the Study of the Law of the Constitution (Macmillan, 6th ed, 1902) 70–81.Google Scholar
160 In McCloy (2015) 89 ALJR 857, 883 [122], Gageler J reflected upon this, describing Australian constitutional arrangements as one ‘in which the accountability of the legislature and the executive to electors constitutes the ordinary constitutional means of preventing misuse of the exercise of legislative and executive power, and … the role of the judiciary is relevantly limited to safeguarding that mechanism of accountability’.
161 ‘In the absence of relatively equal electoral districts, a voter in a constituency containing more votes would be denied an equivalent say in the electoral process to one in a less numerous constituency, and the legislature would less accurately reflect the opinions of the electorate’: Creighton, above n 113, 79–80.
162 Moore, W H, The Constitution of the Commonwealth of Australia (Maxwell, 2nd ed, 1910), 329Google Scholar; ‘fervid (sic) declarations of individual right, and the protection of liberty and property against the government, are conspicuously absent from the Constitution; the individual is deemed sufficiently protected by that share in the government which the Constitution ensures him’; Allan, James, ‘Thin Beats Fat Again—Conceptions of Democracy’ (2006) 25 Law and Philosophy 533CrossRefGoogle Scholar; Allan, James ‘An Unashamed Majoritarian’ (2004) 27 Dalhousie Law Journal 537.Google Scholar
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166 304 US 144 (1938): ‘it is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subject to more exacting judicial scrutiny … than are most other types of legislation … nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious, national or racial minorities; whether prejudice against distinct and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry’ (Stone J, for Hughes CJ and Brandeis and Roberts JJ); Ross, Bertrall II, ‘The Representative Equality Principle: Disaggregating the Equal Protection Intent Standard’ (2013) 81 Fordham Law Review 175, 224Google Scholar: ‘the role of the courts, through judicial review, is to correct systematical (sic) malfunctions in the political marketplace …the responsibility for protecting against entrenchment … is properly given to the court because elected representatives cannot be trusted to identify and rectify (this) defect since they are often the source or beneficiaries of the defects’.
167 Davis v Bandemer, 478 US 109, 133 (1986) (White J, with whom Brennan, Marshall, Blackmun, Powell and Stevens JJ joined).
168 McCloy (2015) 89 ALJR 857, 881 [115].
169 Ibid 881 [116].
170 Ibid 881–2 [117]; Hogan (2011) 243 CLR 506.
171 ‘We cannot always count on a severely gerrymandered legislature itself to find and implement a remedy … the party that controls the process has no incentive to change it’: Vieth v Jubelirer, 541 US 267, 363 (2004) (Breyer J).
172 McCloy (2015) 89 ALJR 857, 881–2 [117].
173 Robinson, above n 4, 101; Charles, Guy-Uriel E and Fuentes-Rohwer, Luis, ‘Reynolds Reconsidered’ (2015) 67 Alabama Law Review 485, 486Google Scholar: ‘much has been said about population equality as a core democratic principle’; Daly, Erin, ‘Idealists, Pragmatists, and Textualists: Judging Electoral Districts in America, Canada and Australia’ (1998) 21 Boston College International and Comparative Law Review 261, 263Google Scholar: ‘democratic governance, including equality as an essential component, is fundamental to the nations’ political self-consciousness’.
174 Maddox, Graham, Australian Democracy in Theory and Practice (Pearson, 5th ed, 1991) 449.Google Scholar The other three conditions are liberty, fraternity and justice.
175 Ibid 453.
176 Coper, Michael, Encounters With the Australian Constitution (CCH Australia, 1987) 258Google Scholar: ‘[No-one] would deny that the essence of modern representative democracy is majority rule, with its concomitants of full adult suffrage, free and regular elections which offer the electors an effective choice, and a fair electoral system in which votes are of substantially equal value’; Gaze, Beth and Jones, Melinda, Law, Liberty and Australian Democracy (Law Book Co, 1990), 74Google Scholar: ‘if some sectors of the community are deliberately given less access to Parliamentary representation than others, the democratic ideal is corroded … if some voters have greater impact on the composition of Parliament than others, there will be a failure to take the political equality of individuals seriously’; Issacharoff, Samuel, ‘Gerrymandering and Political Cartels’ (2002) 116 Harvard Law Review 593, 623CrossRefGoogle Scholar (‘Gerrymandering’): ‘allowing partisan actors to control redistricting so as to diminish competition runs solidly counter to the core concern of democratic accountability’; Dawood, Yasmin, ‘Democracy and the Right to Vote: Rethinking Democratic Rights Under the Charter’ (2013) 51 Osgoode Hall Law Journal 251, 258CrossRefGoogle Scholar ‘democracy is associated with substantive goals … and with fundamental values such as equality’.
177 John Stuart Mill, Utilitarianism, On Liberty, Considerations on Representative Government (Geraint Williams, first published 1910, 1993 ed), 246. (‘Utilitarianism’).
178 Ibid 277. See also Rawls, John, A Theory of Justice (Belknap, 1971)CrossRefGoogle Scholar who, constructing his system of justice and noting ‘political justice and the constitution’, stated ‘the precept one elector one vote is honoured as far as possible. Elections are fair and free’: 222–3; ‘the constitution must take steps to enhance the value of the equal rights of participation for all members of society’: 224, compatible with his more general principle of justice that each is to have equal right to the most extensive liberty compatible with similar liberty for others: 60.
179 Mill, Utilitarianism, above n 177, 278–9. Mill also had ideas on voting entitlement that are unpalatable today: 303–4.
180 R v Oakes [1986] 1 SCR 103, [64].
181 Harper v Canada (Attorney-General) [2004] 1 SCR 827.
182 Ibid [63].
183 Reference Re Secession of Quebec [1998] 2 SCR 217, [67] (the Court).
184 Charles, Guy-Uriel, ‘Democracy and Distortion’ (2007) 92 Cornell Law Review 601, 608–9.Google Scholar
185 Issacharoff, above n 176, 606.
186 Ibid 612.
187 Dawood, above n 176, 263.
188 Dawood, Yasmin, ‘Electoral Fairness and the Law of Democracy: A Structural Rights Approach to Judicial Review’ (2012) 62 University of Toronto Law Journal 499, 519–23CrossRefGoogle Scholar; Figueroa v Attorney-General of Canada [2003] 1 SCR 912, [133] (Lebel J).
189 McKinlay (1975) 135 CLR 1, 73 (Murphy J, dissenting); McGinty (1996) 186 CLR 140, 221 (Gaudron J, dissenting). Gummow and Hayne JJ referred to United States authorities in their interpretation of ‘representative democracy’ in Mulholland (2004) 220 CLR 181, 242.
190 ACTV (1992) 177 CLR 106, 140, 143 (Mason CJ), 231, 235, 239 (McHugh J); Nationwide News (1992) 177 CLR 1, 32 (Mason CJ), 79 (Deane and Toohey JJ); Theophanous (1994) 182 CLR 104, 130 (Mason CJ, Toohey and Gaudron JJ) and 177, 182 (Deane J); Levy (1997) 189 CLR 579, 594 (Brennan CJ), 623 (McHugh J) and 638–42 (Kirby J); Coleman (2004) 220 CLR 1, 75 (Gummow and Hayne JJ); Wotton (2012) 246 CLR 1, 21 (Heydon J); Attorney-General (South Australia) v Adelaide City Corporation (2013) 249 CLR 1, 67 (Heydon J); Monis (2013) 249 CLR 92, 115–16 (French CJ); Unions (2013) 252 CLR 530, 551 (French CJ, Hayne, Crennan, Kiefel and Bell JJ); McCloy (2015) 89 ALJR 857, 902 [239] (Nettle J, dissenting).
191 McKinlay (1975) 135 CLR 1, 23 (Barwick CJ), 63 (Mason J).
192 Ibid 23 (Barwick CJ), 47 (Gibbs J), 63 (Mason J).
193 For instance, Gibbs J claimed that in Australian constitutional interpretation, it was not permissible to refer to convention debates to clarify meaning, in contrast to American constitutional interpretation: at 47. In contrast, the High Court (at least on occasion) does use convention debates to interpret the Australian Constitution (see, eg, Cole v Whitfield (1988) 165 CLR 360, 385–91), casting doubt on the reasoning of Gibbs J.
194 SirDixon, Owen, Jesting Pilate (Law Book Co, 1965) 102Google Scholar: ‘the framers of our own federal Commonwealth Constitution … found the American instrument of government an incomparable model. They could not escape from its fascination’.
195 McKinlay (1975) 135 CLR 1, 23–4, McGinty (1996) 186 CLR 140, 187 (Dawson J), 267 (Gummow J); Reference Re Electoral Boundaries Commission Act [1991] 2 SCR 158. For a detailed comparison of the case law, see Daly, above n 173.
196 McGinty (1996) 186 CLR 140, 271 (Gummow J).
197 ‘Democracy is commonly understood as being a political system of majority rule’: Reference Re Secession of Quebec [1998] 2 SCR 217, [63] (the Court).
198 McKinlay (1975) 135 CLR 1, 24 (Barwick CJ).
199 ‘Malapportionment in a legislature, which enables a past majority to continue exercising power beyond the term of its majority status, is inconsistent with majoritarian principles’: Klarman, above n 165, 506–7.
200 Gaughan, Anthony, ‘To End Gerrymandering: The Canadian Model for Reforming the Congressional Redistricting Process in the United States’ (2013) 41 Capital University Law Review 999, 1004.Google Scholar
201 Wesberry et al v Sanders, Governor of Georgia, et al 376 US 1 (1964) (‘Wesberry’).
202 Ibid 7–8 (Black J, for Warren CJ Douglas Brennan Stewart White and Goldberg JJ).
203 Ibid 8.
204 Ibid 15; for historical explanation see Gardner, James, ‘Representation Without Party: Lessons from State Constitutional Attempts to Control Gerrymandering’ (2006) 37 Rutgers Law Journal 881, 934–5.Google Scholar
205 Wesberry, 376 US 1 (1964), 17.
206 Ibid 17; Reynolds v Sims, 377 US 533, 562 (1964) (Warren CJ, for Black, Douglas, Brennan, White and Goldberg JJ) (‘Reynolds’).
207 Robert Behrman, ‘Equal or Effective Representation: Redistricting Jurisprudence in Canada and the United States’ 51 (2011) American Journal of Legal History 277, 278.
208 McKinlay (1975) 135 CLR 1, 40 (McTiernan and Jacobs JJ).
209 I have made this argument in Gray, Anthony, ‘Constitutional Right of Access to Courts in Australia: The Case of Prisoners’ (2015) 24 Journal of Judicial Administration 236, 247–8Google Scholar; detailed consideration here is beyond current scope.
210 Reynolds, 377 US 533, 555 (1964) (Warren CJ, for Black, Douglas, Brennan, White and Goldberg JJ).
211 Ibid 565 (Warren CJ, for Black, Douglas, Brennan, White and Goldberg JJ); ‘as long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system’: 562.
212 Ibid 567.
213 Ibid 562.
214 In Reynolds, 377 US 533 (1964), the range for senate districts was between 15 417 and 634 864 and for the house of representatives 6731 to 104 767; in Wesberry, 376 US 1 (1964) some districts had more than double the population of other districts.
215 Kirkpatrick, Secretary of State of Missouri et al v Preisler et al, 394 US 526, 533 (1969), where such variations (three per cent) could not be satisfactorily justified. Historic, economic or other group interest reasons were not generally sufficient. The State had to make a ‘good faith’ effort to achieve equality; stated cut-off points of permissible variation would be arbitrary: 531; White v Secretary of State of Texas v Weiser et al, 412 US 783 (1973) (maximum deviation of 2.5 per cent above and 1.7 per cent below the average unconstitutional); 0.7 per cent deviation struck down in Karcher v Daggett, 462 US 725 (1983). The Court has found geographical arguments, that malapportionment was necessary to avoid electoral districts of unmanageable size, unconvincing given ‘modern developments and improvements in transport and communication’ (Reynolds, 377 US 533, 580 (1964)).
216 Evenwel v Abbott (14-940), 4 April 2016, 7–8 (Ginsburg J, with whom Roberts CJ, Kennedy Breyer, Sotomayor and Kagan JJ agreed); the 10% rule has been criticised: Cirkovich, Stephanie, ‘Abandoning the Ten Percent Rule and Reclaiming One Person, One Vote’ (2010) 31 Cardozo Law Review 1823.Google Scholar On the Canadian approach, see Attorney-General for Saskatchewan v Carter [1991] 2 SCR 158.