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High Court of Australia |
ATTORNEY-GENERAL (N.S.W.); Ex Rel. McKELLAR v. THE COMMONWEALTH (1977) 139 CLR
527
Constitutional Law (Cth)
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4), Jacobs(5), Murphy(6) and
Aickin(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Parliament of the Commonwealth - House of Representatives - Elections - Number of members in States - Requirement of Constitution - Quota - Determined by dividing number of people of the Commonwealth by twice number of senators - People of the Commonwealth - Whether people of Territories included - Senators for Territories - Whether included in number of senators - Number of members to be as nearly as practicable twice number of senators - Number of members in each State - Determined by dividing number of people of the State by quota - Additional member to be chosen if remainder after division greater than one half of quota - Act providing that additional member to be chosen if any remainder after division - Validity - Amendment of Act - Consequence of invalidity of amendment - The Constitution (63 & 64 Vict. c. 12), ss. 7, 24, 122 - Representation Act 1905 (Cth), ss. 1A, 6, 7, 8, 9, 10 - Representation Act 1964 (Cth), s. 3 - Representation Act 1973 (Cth), s. 5.
HEARING
Sydney, 1976, November 2; 1977, February 1. 1:2:1977DECISION
1977, Feb. 1.
2. The questions referred to the Court in these proceedings by my brother
Gibbs are:
"(i) Whether s. 1A of the Representation Act 1905-1974 is a valid law of
the Parliament.
(ii) Whether s. 10 of the Representation Act 1905-1974 is a valid law of
the Parliament.
(iii) Whether ss. 6, 7, 8 and 9 of the Representation Act 1905- 1974 are
valid laws of the Parliament.
(iv) Whether s. 10 of the Representation Act 1905-1964 is a valid law of
the Parliament.
(v) Whether, if the answer to any of the preceding questions is 'No', the
number of members of the House of Representatives
in the several States should
be determined -
(a) In the manner provided by some one or more of the sections of the
Representation Act and, if so, which section or sections;
(b) In the manner provided by sub-pars (i) and (ii) of the second
paragraph of s. 24 of the Constitution; or
(c) In some other and, if so, what manner.of members of the House of Representatives to be chosen in the several States in the manner provided by sub-pars (i) and (ii) of the second paragraph of s. 24 of the Constitution -
(vi) If the answer to (v) (b) is 'yes' whether, in determining the number
3. But for the decision of the majority of the Court in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 , it could scarce have been possible with any show of reason, let alone practicality, to have asked questions (i), (iii), (vi) (a) or (b). One familiar with the Constitution and the history of its formation would have answered unequivocally and without doubt that "the people of the Commonwealth" in s. 24 included only the people of the several States and that it did not include the residents of the Territories. Further, there would have been no question that the number of senators mentioned in s. 24 of the Constitution included only those senators of whom, according to s. 7, the Senate should be composed: that is to say, senators elected by the people of the States. The Constitution speaks of no others. But the Court has decided that the federal nature of the Constitution notwithstanding, there can be territorial senators created under s. 122 with equal significance as the senators "for the States". It is this decision that has caused questions (i), (iii) and (vi) (a) and (b) to be raised. (at p532)
4. Before indicating my opinion as to the correct answers to these questions, it should be noted that two States during the argument of these proceedings questioned the propriety of the Court's decision in Western Australia v. The Commonwealth. However, unfortunately as I think, neither State proffered any argument in support of this questioning. I say unfortunately because, if the decision is to be reconsidered, that reconsideration should take place before what, with due respect to the opinion of others, appears to me to be a serious departure from the federal nature of the Constitution, becomes entrenched in constitutional practice by the mere passage of time. (at p533)
5. However, the present questions must be answered on the footing of the Court's decision in that case. Notwithstanding the introduction by that decision into the jurisprudence of the Constitution of another group of senators, to be styled, I suppose, "senators for the Territories", I have no doubt that the meaning and application of s. 24 remains unchanged. The people of the Commonwealth are the people of the States to whom s. 3 of the covering clauses refers and who were united in a federal Commonwealth. They did not, nor could they, include the people of territories surrendered to the Commonwealth or placed by the Queen under the authority of the Commonwealth or otherwise acquired by the Commonwealth. The very terms of s. 122 juxtapose the Commonwealth - that federal Commonwealth composed of the people of the States - to the territories possessed by that Commonwealth. (at p533)
6. The provision for distributing the membership of the House among the several States in proportion to the respective populations points strongly, if not indeed definitively, against the possibility of including the people of the Territories within the concept of the people of the Commonwealth for the purposes of s. 24. In my opinion, the people of the Commonwealth for the purposes of that section consist exclusively of the people of the several States and do not include the residents of the Territories. In this respect, as indeed in other respects, I am unable to find any relevant distinction between the so-called internal Territories and the external Territories. True it is the people who resided in the Northern Territory or in what is now the Australian Capital Territory at the date of the surrender of those areas respectively to the Commonwealth were residents of a State of the Commonwealth. But the surrender was constitutional. Section 122 authorized it. In the case of the area of the Australian Capital Territory, s. 125 in a sense required it. But what was both contemplated and effected was a change in the status of the area and of its residents. Commonwealth power, not federally circumscribed, was at that moment attracted both to the area and to its inhabitants. Though formerly part of the people of the Commonwealth, those residents became territorians and no longer part of that people as described in s. 24. (at p533)
7. Section 1A of the Act does no more than repeat the constitutional position and is, in my opinion, valid. Sections 6, 7 and 8 are in consequence also, on the hypothesis I have accepted for the purpose of these reasons, valid. Question (vi) should be answered: (a) No; (b) No. (at p534)
8. I turn now to the question raised as to s. 10. The answer to the relevant question is to be found in s. 24 of the Constitution. It is not to be found in the experience or experimentation of the United States in an endeavour to distribute the members of Congress amongst the States of the Union. I find no assistance in that experience in the resolution of the instant question. The Constitution of the United States has no provision comparable to s. 24 with its insistence on a numerical relationship between the membership of the House and that of the Senate: and it is in that relationship which I think the answer to the present question is to be found. (at p534)
9. Section 24 must, in my opinion, be read and applied as a whole. It is not composed of two disjointed and disparate parts. The numerical relationship of the membership of the House of Representatives to the number of senators is basic to all parts of the section. It is that mathematical relationship which determines the quota - the divisor to be used to effect the distribution of the number of members amongst the several States. That consequence derives both from the first and the second paragraphs of the section. I have no doubt that the use of the constitutional formula for that distribution will produce a result "as nearly as practicable", conforming to the precept of the first paragraph. To ignore a remainder of over fifty per cent would not, in my opinion, do so. (at p534)
10. The words "as nearly as practicable" in the first paragraph are in truth meaningless unless regard is had to the exercise prescribed by the second paragraph of the section. To multiply the number of senators by two yields no problem to which those words could be apposite. It is the difficulty recognized or implicit in effecting a distribution of members amongst the several States according to their respective populations which requires the inclusion of those words. They recognize that a perfect distribution is, in general, unattainable and that some approximation must in general be required. The adoption of the constitutional formula for distribution with its use of a remainder of more than fifty per cent of the quota and its provision for a minimum number of members for Tasmania underlines the place the words "as nearly as practicable" have in the constitutional scheme. They relate to the ultimate result of the use of the formula. Amethod of distribution which does not necessarily secure that ultimate result will not conform to the constitutional imperative. (at p534)
11. I now turn to s. 10 in the Act as it now stands. It provides that if there is any remainder in relation to any State, an extra member is to be chosen for that State. No evidence was tendered as to the mathematical effect of this provision in securing or denying the attainment of the ultimate situation of a House of Representatives composed as nearly as practicable of twice as many members as the number of senators. But, in my opinion, the Court is not so devoid of mathematical knowledge as to be unable to conclude that if a member is added for each remainder, however small, the result will not necessarily be a number of members as nearly as practicable twice the number of senators. The divisor results from the division of the total number of the people of Australia by twice the number of senators. To add a member for any remainder must mean - quite unusual considerations apart - that the ultimate figure is not a membership twice the number of senators. It just would not necessarily produce that result or as near to that result as practicable. A likely though perhaps not a necessary result is a membership of twice the number of senators plus five or, if the addition for Tasmania be made, plus more than five. But it is evident that a result nearer to the desired number of twice the number of senators can practically be obtained by use of the constitutional formula. So to state the matter is, in my opinion, to deny that the addition of a member for any remainder does necessarily produce a membership of the House, as nearly as practicable, twice the number of senators. (at p535)
12. I have indicated in earlier decisions that the question whether the statutory provision for distribution of the membership of the House amongst the several States does produce the imperative result "as nearly as practicable" is a question for this Court. It is a question as to the validity of the Act as an exercise of the legislative power given to the Parliament by s. 24 and s. 51 (xxxvi.). Consequently, if the Court is not satisfied that the use of the statutory method does necessarily achieve the result prescribed by the first paragraph of s. 24, it must declare the statute invalid, thus making the constitutional formula operative as upon a failure of the Parliament validly otherwise to provide. I am clearly of opinion that s. 10 of the Act does not provide a method of distributing the membership of the House amongst the several States so as to provide a House of Representatives composed of members as nearly as practicable twice in number as the number of senators. Accordingly, in my opinion, s. 10 as now enacted is invalid. (at p535)
13. I apprehend that it has been thought that such a conclusion as to the invalidity of the method of distribution now provided by s. 10 ought to lead to the conclusion that only the Representation Act 1964 ("the amending Act"), amending s. 10 to its present form, is invalid: and that striking down the amendment only, the former s. 10, being in terms of the constitutional formula, would stand valid. This course savours somewhat of the doctrine of dependent relative revocation in another sphere of the law. I doubt if it has any place in the case of a statute repealed and replaced by a new provision. There would seem to be no parliamentary intention that if its amendment should be invalid, the former provision should continue to operate. (at p536)
14. But the particular form of s. 3 of the amending Act, in merely omitting from s. 10 the words "greater than one half of the quota", may seem to raise a different consideration. If that amendment is void, the words are not omitted. It would be sufficient on this view in this instance to declare the amending Act void, though in truth in itself and divorced from the terms of s. 10, the words omitted by the amendment have little meaning. I find it unnecessary to decide the formal question. (at p536)
15. But however that may be, it is of little consequence whether as a result of a decision that the method of distribution presently provided in invalid, the distribution is to be effected directly under the constitutional formula in s. 24 or indirectly under that formula by reason of its repetition in s. 10 of the Representation Act 1905-1938 ("the former Act"). The result is, in either case, precisely the same. (at p536)
16. On the basis of the view that the whole of the Act was not invalid for reasons derived from the reasons for judgment in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 , I would answer the questions: (i) Yes. (ii) As a section of the Act, No. (iii) Sections 6, 7 and 8 are valid. Section 9 is invalid, in so far as it directs a distribution according to s. 10 of the Act. (iv) Assuming it to have remained operative and to have been unaffected by the amending Act, Yes. (v) (a), (b) and (c) The distribution should be effected in terms of the formula provided in s. 24, whether by reason of that constitutional provision or by reason of s. 10 of the former Act. (vi) Whether the distribution be effected by reason of s. 24 or by reason of s. 10 of the former Act, the number of the people of the Commonwealth does not include the people of the Northern Territory nor the people of the Australian Capital Territory: and the number of the senators does not include senators not elected by and for a State of the Commonwealth. (at p536)
GIBBS J. In these proceedings a challenge is raised to the validity of
certain sections of the Representation Act 1905 (Cth),
as amended. That Act
was passed in intended exercise of the power conferred by ss. 24 and 51
(xxxvi.) of the Constitution. Section 24 contains four important requirements
as to the composition of the House of Representatives. The first is that the
House of Representatives
"shall be composed of members directly chosen by the
people of the Commonwealth". Secondly, "the number of such members shall be,
as nearly as practicable, twice the number of the senators". Thirdly, "The
number of members chosen in the several States shall
be in proportion to the
respective numbers of their people". Section 24 goes on to enact that "until
the Parliament otherwise provides", the number of members chosen in the
several States shall
"be determined, whenever necessary, in the following manner:the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators;
(i) A quota shall be ascertained by dividing the number of the people of
2. The provisions of s. 24 as to the manner in which the number of members chosen in the several States is to be determined until the Parliament otherwise provides are silent as to certain important matters of practical detail. The section does not say by whom the determination is to be made. It does not say who is to decide when a determination is necessary. And it does not say from what sources "the latest statistics of the Commonwealth" are to be obtained. (at p537)
3. The Representation Act 1905, in its original form, was designed to remedy these deficiences, rather than to vary the manner in which the apportionment was to be effected. It required the Chief Electoral Officer of the Commonwealth to ascertain the numbers of the people of the Commonwealth and the numbers of the people of the several States as on Enumeration Day, to certify to the numbers so ascertained and to determine the number of members to be chosen in the several States. I have referred in more detail to the effect of these provisions (in their amended form) in my judgment in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR, at pp 48-50 , and need not repeat what I there said. But the procedure that the Representation Act 1905, as first enacted, required the Chief Electoral Officer to follow in making his determination was stated, in s. 10 of the Act, in the very words of s. 24 of the Constitution, except that a reference to "the certificate (for the time being in force) of the Chief Electoral Officer" was substituted for "the latest statistics of the Commonwealth". (at p538)
4. By the Representation Act 1964, s. 10 was amended so as to vary the method
by which the apportionment of members was to be
determined. After that
amendment the section was in the following terms:
"For the purpose of determining the number of Members of the House of
Representatives to be chosen in the several States,
the following procedure
shall be followed: -
(a) A quota shall be ascertained by dividing the number of people of the
Commonwealth, as shown by the certificate (for the
time being in force) of the
Chief Electoral Officer, by twice the number of Senators.
(b) The number of Members to be chosen in each State shall, subject to the
Constitution, be determined by dividing the number of the people of the State,
as shown by the certificate (for the time being in force) of the
Chief
Electoral Officer, by the quota; and if on such division there is a remainder,
one more Member shall be chosen in the State."
The effect of the amendment is that if, on the division which the section
requires to be made, there is a remainder, one more member
shall be chosen in
the State, even though the remainder is less than one-half of the quota. One
of the questions for our consideration
is whether the section, as so amended,
is valid. (at p538)
5. Further amendments were made by the Representation Act 1973. That Act was
one of the statutes passed at the joint sitting of
the members of both Houses
of Parliament in 1974. The Senate (Representation of Territories) Act 1973,
which was also passed at
the joint sitting, provided, for the first time, for
the representation of the Australian Capital Territory
and the Northern
Territory
by senators chosen by the people of those respective Territories.
The amendments effected by the Representation Act 1973, so far
as they are
material, were apparently intended to remove doubts that might have arisen in
the operation of the Representation
Act
1905 by reason of the existence of
senators for the Territories. The Representation Act 1905 was amended by
inserting the following
new section:
"1A. In this Act, 'the people of the Commonwealth' does not include the
people of any Territory."
and by omitting from par. (a) of s. 10 the word "Senators" and substituting
the words "the Senators for the States". The validity
of those amendments is
also called in question in the present case. (at p539)
6. In Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR 1 this Court held that ss. 3, 4 and 12 (a) of the Representation Act 1905, as amended, are invalid. Sections 3 and 4 are invalid because they provide for a determination to be made only after every census and not before every regular general election. Section 12 (a) is invalid because under its provisions a determination might possibly never become effective. The reasons for judgment in that case do not deal with the questions that now arise, but Barwick C.J. did say (1975) 135 CLR, at p 34 that s. 10 would in itself be valid, whereas Murphy J., on the other hand, said (1975) 135 CLR, at p 78 that s. 10 does not seem to be consistent with the nexus provision of s. 24. It was not argued in that case that s. 10 was invalid and these remarks were obiter. (at p539)
7. The fact that these vital sections of the Representation Act were invalid no doubt meant that the remainder of the Act became a dead letter. In Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR, at p 34 , Barwick C.J. expressed the opinion that the invalidity of these sections rendered the Act as a whole invalid. It might possibly be suggested that a short answer to the questions raised in the present case is that the whole Act is invalid. To dispose of the matter by so holding would be to evade the real questions that fall for decision. If the Parliament decides to legislate so as to replace ss. 3, 4 and 12 (a) by valid provisions, and a challenge is then raised to ss. 1A and 10, and is successful, insufficient time may remain to allow further legislation to be passed and any necessary apportionment and redistribution to be effected thereafter, before the term of the present House of Representatives expires on 16th February 1979. The question whether ss. 1A and 10 are in themselves valid is squarely raised for decision in the present case, and the public interest demands that it be answered. (at p539)
8. I turn first to consider the amendments made by the Representation Act 1973 (1975) 135 CLR, at p 78 , whose effect is that in making an apportionment in the manner prescribed by s. 10 regard is to be had only to the numbers of people living in the States and to the number of senators for the States, so that no account is to be taken of the people of, or senators for, the Territories. (at p540)
9. I have already stated the four constitutional principles that are embodied in s. 24. The meaning of the first, that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, was considered in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 For present purposes it is only necessary to note that members of the House of Representatives to whom s. 24 refers must be chosen directly by popular vote (1975) 135 CLR, at pp 21, 44, 56, 61 . The requirement that five members at least should be chosen for each original State requires no elaboration, although it does of course have a practical effect on the working of the other rules. The questions in the present case call for a closer consideration of the other two requirements of s. 24. The so-called nexus - the provision that the number of members of the House of Representatives shall be, as nearly as practicable, twice the number of the senators - is not an absolute requirement. The rule is qualified by the words "as nearly as practicable". I shall later discuss the effect of those words. No similar qualification is attached to the requirement that the number of members chosen in the several States shall be in proportion to the respective numbers of their people. That rule is stated absolutely. However, in the nature of things it is impossible, except as the result of a most unlikely coincidence, that the number of members in the various States can be in exact mathematical proportion to the respective numbers of their people. An exact mathematical proportion would in almost every situation have the absurd result that a State's representation would be expressed in fractions of representatives. There is no doubt, therefore, that the proportion mentioned is not intended to be exact. The words "as nearly as practicable", which are expressed in the nexus provision, may have been omitted from the provision relating to the proportionate representation of the people of the States, simply because they or similar words must necessarily be implied. (at p540)
10. The governing provisions of the second paragraph of s. 24 do not in themselves provide the least support for the notion that in determining the number of members of the House of Representatives to be chosen in the several States any consideration should be given to the position of the Territories. The requirement made by those provisions is that the number of members chosen in the several States shall be in proportion to the respective numbers of their people. The proportionate relationship to be determined is that which exists between the populations of the respective States. To determine the required proportion all that need be known is the population of each of the States. To introduce the number of the people of the Territories into any calculation made to determine the required proportion is to introduce an extraneous factor, which can only serve to distort the result. It is possible that if the population of the Territories is comparatively small the distortion will be small, and I do not need to decide whether the Representation Act 1905 would necessarily be invalid if it required the population of the Territories to be included in "the people of the Commonwealth" for the purpose of making the determination for which s. 10 provides. However, in my opinion the Representation Act 1905 will not contravene the governing words of the second paragraph of s. 24 if it expressly excludes the population of the Territories from the calculation. (at p541)
11. It is clear that to find a result that will satisfy the requirement of the first part of the second paragraph of s. 24 it is unnecessary to consider the number of senators, whether they be senators for the States for the Territories. The number of senators has no relationship to the proportion required to be established. When twice the number of senators is taken as a divisor, as it is in the procedure which s. 24 indicates is an acceptable method of achieving a constitutional result, that is done for the purpose of ensuring that the determination satisfies the requirement that there shall be, as nearly as practicable, a nexus between the number of members of the two Houses of the Parliament as well as the requirement that there shall be a proportionate relationship between the members chosen in the several States. In the present case it will be necessary to decide whether the senators for the Territories are to be taken into account for the purposes of the nexus provision. (at p541)
12. The argument that the amendments were invalid, as advanced on behalf of the Attorney-General for New South Wales, depended on the indications said to be provided by the use in s. 24 of the expressions "the people of the Commonwealth" and "the senators". Neither expression occurs in the governing words of the second paragraph but it is said that they provide the context in which those words have to be construed. Moreover, the concluding words of the second paragraph of s. 24 describe one way in which a determination may validly be made and to that extent throw some light on the meaning of the governing words of the second paragraph. The argument put on behalf of the Attorney-General for New South Wales was that the words "the people of the Commonwealth" in s. 24 include the people of the Territories as well as those of the States, and that the words "the senators" mean all the senators, those for the Territories as well as those for the States. (at p542)
13. Before I turn to consider the meaning of the words in s. 24 upon which counsel for the Attorney-General relied, it is necessary to say a few words as to the representation of the Territories in the two Houses of the Parliament. In Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 this Court decided, by a majority, that the Senate (Representation of Territories) Act 1973 was a valid law of the Commonwealth. Counsel for the States of Western Australia and Queensland, who were given leave to intervene in the present case, indicated that they would wish to submit, if the occasion arose, that that case was wrongly decided. For present purposes I find it enough to assume that Western Australia v. The Commonwealth should be followed, without indicating any concluded view one way or the other on that question. It is clear from the judgments of the majority in that case that the power to appoint senators for the Territories is derived solely from s. 122 of the Constitution. It was not doubted that the provisions of Pt II of Ch. I of the Constitution, including s. 7, relate only to senators for the States. Similarly, in my opinion, if the Parliament has power to provide for the representation of the Territories by members of the House of Representatives, that power is derived from s. 122. There is of course a difference between the words of s. 7, which speaks of "senators for each State", and those of s. 24, which uses the words "members directly chosen by the people of the Commonwealth". I do not doubt that the latter words are capable in an appropriate context of including the people of a Territory. However, in my opinion other provisions of s. 24, and of related sections in Pt III of Ch. I (and particularly ss. 25, 27, 30, 31 and 34) indicate that s. 24 is concerned only with members of the House of Representatives chosen in the States. It cannot be doubted that the requirements laid down by the second and third paragraphs of s. 24 apply only to members chosen in the States. Further there can be no doubt that when the first paragraph uses the words "the people of the Commonwealth" it is not intending to decree that any persons, not being the people of a particular State, are entitled to take part in the choice of members for that State. So far as the opening words of the first paragraph relate to members chosen in a State, they must mean that such members shall be chosen by the people of the Commonwealth in that State. If the opening words of s. 24 had any application to the representatives of the Territories, their effect could only be to require that members of the House of Representatives chosen in the Territories be elected directly, and not, e.g., either appointed or selected by an electoral college. If s. 24 had that effect, it would operate to fetter the power given to the Parliament by s. 122, contrary to what I understand to be the reasoning of the majority in Western Australia v. The Commonwealth (1975) 134 CLR, at pp 269-270, 272-273, 281-282 . For these reasons I conclude that the words "the people of the Commonwealth" in the first paragraph of s. 24 do not include the people of the Territories. In this context it should further be concluded that the second part of the first paragraph of s. 24, the nexus provision, relates only to the number of members chosen in, and to the senators chosen for, the States. Two main reasons may be suggested for the insertion of this provision - first, to prevent a proportionately large increase in the size of the House of Representatives which might tend to diminish the status of the Senate, and second, to maintain some relationship between the size of the two Houses on a double dissolution. To some extent these reasons still exist even when the Territories are represented in the Parliament. However, there is no requirement that the Territories shall have equal representation in the Senate, or that the number of members of the House of Representatives chosen in the several Territories shall be in proportion to their respective populations, or that the number of such members chosen in the Territories shall bear any relation to the number of senators for the Territories. If the Parliament enacted that there should be more senators for the Territories than members of the House of Representatives chosen in the Territories (as is the case under the existing legislation), and the nexus provision were not limited to members and senators in and for the States, the result would be that additional members of the House of Representatives would have to be chosen in the States. An even more anomalous result would follow if the Parliament provided that some members of the House of Representatives should be chosen in the Territories but made no provision for senators for the Territories. The nexus provision, if not limited to members and senators in and for the States, would require the number of members of the House of Representatives chosen in the States to be reduced simply because some such members had been chosen in the Territories. These anomalies strengthen the view, based on a consideration of s. 24 as a whole, that the nexus provision in s. 24 refers only to members and senators chosen in and for the States. (at p543)
14. If s. 24 has nothing to do with members chosen to represent the Territories it is clear that the general expressions contained in that section must if necessary be limited accordingly, to make them sensible in the context in which they appear. The words "the people of the Commonwealth" must therefore be understood as meaning the people of the States, and the words "the senators" contained in the second paragraph of s. 24 must mean the senators for the States. (at p544)
15. For these reasons I conclude that there is nothing in s. 24 that makes it necessary to take account either of the number of people in the Territories or the number of senators for the Territories in effecting the apportionment which s. 24 requires - an apportionment which, as I have said, is to be based on the respective numbers of the people of the States, and is not in any way related to the population of the Territories or to the number of their senators. The provisions of the Representation Act 1973, which inserted the new s. 1A and amended s. 10, are in my opinion valid. (at p544)
16. I must then consider the question whether the procedure introduced by the amendment made to s. 10 in 1964, whereby an additional member is to be chosen in a State if, on a division, there is any remainder, satisfies the requirements of s. 24 as to the proportion which the numbers chosen in the several States must bear to the respective numbers of their people, and as to the nexus between the size of the House of Representatives and that of the Senate. (at p544)
17. The Constitution of the United States, which the framers of our
Constitution had before them as a model, provides that representatives shall
be apportioned among the several States according to their respective
numbers,
but that each State shall have at least one representative (Art. 1, s. 2,
sub-s. 3, and the Fourteenth Amendment). It did not, however, provide that
there should be a nexus between the size of the Senate
and that of the House
of Representatives. By the time of federation Congress, by its legislation,
had already made provision for
apportionment by three different methods; since
that time two other methods have received Congressional approval, and more
have
been suggested. The matters to which I am about to refer will be found
discussed in Foster, Commentaries on the Constitution of the United States
(1896), vol. 1, pp. 369-446; and Schmeckebier, Congressional Apportionment
(1941), pp. 73-76, 107-126. The
first Apportionment Act which became law
(after an earlier Bill had been vetoed by the President) allowed each State
one representative
for every 33,000 persons, and left the remaining fractions
in each State unrepresented. The quota (or ratio as it is usually called
in
the United States) was altered from time to time but the method remained the
same until 1842. In 1832 Daniel Webster made his
memorable report to the
Senate attacking the injustice of this system and suggesting its reform. I
mentioned in Attorney-General
(Cth); Ex rel. McKinlay v. The Commonwealth
(1975) 135 CLR, at pp 50-51 , a passage from Webster's report which is quoted
by Quick
and Garran, in their Annotated Constitution of the Australian
Commonwealth (1901), p. 453, but may add a reference to Webster's views on the
presentation of fractions less
than one-half. He said:
"Let it always be remembered that the case here supposed provides only
for a fraction exceeding the moiety of the ratio;
for the committee admit at
once that the representation of fractions, less than a moiety, is
unconstitutional; because, should
a member be allowed to a State for such a
fraction, it would be certain that her representation would not be so near her
exact
right as it was before. But the allowance for a member for a major
fraction is a direct approximation towards justice and equality."
(Cited Foster, op. cit., p. 442).In 1842 effect was given to some of Webster's proposals. The method then adopted was to determine the number of representatives to be chosen in each State by dividing the population of the State by the selected ratio, and to allow an additional member to each State having a remainder greater than one-half of the ratio. This method was in substance adopted by sub-par. (ii) of the second paragraph of s. 24. However, it was soon discarded in the United States. In 1850 a new method (the Vinton method) came into use. The desired size of the House was first fixed. The population of the United States was then divided by the total number of representatives to give a ratio, and the population of each State was divided by the ratio. The quotient so obtained (apart from any remainder) was the number of members to be chosen in each State, except of course that each State was entitled to at least one member. The additional members necessary to bring the size of the House up to the predetermined number were then assigned in order to the States having the largest remaining fractions (which might not necessarily include all fractions exceeding one-half and which might on the other hand include fractions of less than one-half). A very similar method was adopted in Canada in 1943, and is still in force in that Dominion: see British North America Act, as amended, s. 51. It remained in use in the United States until a new method of apportionment, known as the method of major fractions, was adopted in 1911. That method is described and exemplified (although in its application to counties of a State rather than to States) in Shaw v. Adkins (1941) 153 SW (2d) 415 as well as in Schmeckebier, op. cit., pp. 12-21. The method requires a priority list of States to which representatives in excess of one per State are to be allocated to be obtained by dividing the population of each State successively by the arithmetic mean between succeeding representatives. During the 1920s studies made by experts suggested that the most satisfactory method of apportionment was the method of equal proportions. That method, which is also described in Shaw v. Adkins, and in Schmeckebier, op. cit., pp. 21-32, differs from the method of major fractions in that the geometric mean is used as the divisor. After some controversy, Congress in effect approved of the use of both methods. Legislation passed by Congress in 1929 required that apportionments made respectively by the method used in the last preceding apportionment, and by the method of major fractions, and by the method of equal proportions should be transmitted to Congress; if Congress did not then enact a law apportioning the representatives among the States each State should be entitled to the number of representatives shown in the statement based upon the method used in the last preceding apportionment. That was still the position when Schmeckebier wrote, but soon afterwards, in 1941, the Act was amended to provide that the apportionment was to be made by the method of equal proportions only (see 55 Stat. 761). (at p546)
18. This history may seem remote from the question we have to decide but to
my mind it is not altogether without significance.
In the first place it shows
that in 1900 there was no opinion, universally held, as to the fairest way in
which an apportionment
should be made on the basis of population. Secondly it
shows that as mathematical theories are developed and applied to a practical
situation, a method, originally espoused as fair, comes to be regarded as
unsatisfactory. These considerations support the view
that since it is
impossible to adopt any method which will ensure that the number of members
chosen in each State is in exact mathematical
proportion to the respective
numbers of its people, the Constitution leaves a discretion to the Parliament
to determine a method which will achieve that result as nearly as practicable,
and that this
Court should not interfere with an exercise of that discretion
unless it is clearly shown to have violated the constitutional requirements.
In an opinion read in Parliament in 1922, Professor Harrison Moore said:
"The end is the proportionate distribution according to population: the
means of attaining that end is committed to Parliament,
and in accordance with
well-established principle, any means conducive to that end is within the
discretion of the Legislature;
nor will the Courts usurp that discretion by
considering the merits of various schemes as better or worse means to that
end."
(Parliamentary Debates (1922), vol. C, P. 1869).With all respect, I do not think that the Constitution allows to the Parliament quite the freedom which Professor Harrison Moore would suggest. In my opinion, if it were shown that a method of apportionment provided by a law made by the Parliament would have a result less fair and accurate than that which would be reached by the provisional method provided by s. 24 - less fair and accurate in that it would be less successful in bringing about the proportion which s. 24 requires - this Court would intervene. It is natural to think that the method of allowing one additional representative for each fraction over one-half would bring about a more equal apportionment than the method of allowing one extra representative for each fraction however small. That was, as I have shown, Daniel Webster's view. No material, such as the evidence of experts in mathematics, has been placed before us to substantiate that view. However, I do not need to decide whether s. 10 will fail to bring about the result that the number of members chosen in the several States will be in proportion to the respective numbers of their people, and whether the section is invalid for that reason alone. In my opinion, s. 10 as amended in 1964 is invalid for another reason, namely that if the method which it prescribes is applied, the number of members of the House of Representatives will not be, as nearly as practicable, twice the number of senators. (at p547)
19. The necessity for the inclusion in s. 24 of the words "as nearly as practicable" arose in my opinion from the difficulty of ensuring that the House of Representatives would be exactly twice the size of the Senate, consistently with observing the other requirements, that the people of the States should be proportionately represented, and that no original State should have less than five members. Indeed, if the provisional method indicated in the second part of the second paragraph of s. 24 were adopted, it would be impossible always to ensure that result. Distinguished commentators have expressed different views as to the effect of the provision. Quick and Garran, in their Annotated Constitution of the Australian Commonwealth, p. 450, denied that the words are intended to allow the Parliament a discretionary latitude; they considered that "the absolute ratio should only be departed from, so far as may be necessary to adjust fractional and minimal representation". Professor Harrison Moore took a less rigid view. He was of opinion that "the governing principle is the proportionate distribution of membership among the States; that in the determination of the means to that end, Parliament is not required to sacrifice a scheme reasonably conducive to that end, merely because it might be demonstrable that some other system, not securing the proportionate distribution so accurately, would give a closer approximation to 72" (the Senate then had thirty-six members). He added that in his opinion the expression "imports the consideration that the provision for twice the number of senators is subject to the fractions of whole numbers, and to the provision for minimum representation of original States". So far I am in general agreement. However, Professor Harrison Moore went on: "It is, however, not limited by these specific matters. It imports that the requirement of twice the number of senators is subject to all the circumstances of the case . . . What is reasonably practicable in such conditions rests so much on an appreciation of facts, and, therefore, is so much a political question that the judgment of Parliament is entitled to peculiar weight" (see Parliamentary Debates (1922), vol. C, p. 1870). With the greatest respect, I am unable to see what matters, other than those mentioned in s. 24 itself, would need to be considered in deciding whether it is practicable to make the number of members of the House of Representatives twice the number of senators. Obviously conditions of political expediency are not intended to be relevant. Nothing else but the need to comply with the other requirements of s. 24 could render it impracticable to make the House of Representatives twice the size of the Senate. (at p548)
20. It appears from tables with which the Court was supplied that the application of the provisional method contained in s. 24 has in fact had the result that the number of members of the House of Representatives has always exceeded twice the number of senators - it has never been found practicable to achieve what I shall for convenience call "a precise nexus". That is not to say that a precise nexus could never be achieved by following the provisional method of s. 24. In fact a determination made in 1961 did produce a total of 120 members, at a time when there were sixty senators. However, this determination was rendered ineffective by the Representation Act 1964, and when, in its place, a fresh determination was made in accordance with s. 10, as amended, the number of members became 124 (see Parliamentary Debates (1964), vol. H. of R. 44 (N.S.), pp. 1978-1979). The tables further show that if determinations had been made on the two different bases, at various dates between 1900 and 1972, as statistics became available, more members would usually have resulted from the method provided by s. 10 than from the provisional method of s. 24. In other words, the deviation from the precise nexus would usually have been greater if the method provided by s. 10 had been used than if the provisional method of s. 24 had been used - the difference would most usually have been two members, although it might have been as small as one or as large as four, and on one occasion there would have been no difference. This material supports the conclusion that would in any case have appeared probable, viz., that the tendency of both methods is to cause the number of members of the House of Representatives to exceed twice the number of senators, but the method provided by s. 10 tends to do this to a greater extent. It is estimated that if a determination were made now in accordance with the provisional method of s. 24 the result would be 120, whereas the method provided by s. 10 would produce 124. These figures (which do not include representatives for the Territories) are of course not necessarily exact. (at p549)
21. It must be therefore clear, and indeed was not controverted in argument, that it is possible, by adhering to the provisional method provided by s. 24, to achieve a result nearer to a precise nexus than that achieved by s. 10, while at the same time observing the other requirements of s. 24. It is not impracticable to make a determination by the method provided by s. 24. It follows, in my opinion, that a determination made on the basis of s. 10 would not satisfy the nexus requirement "as nearly as practicable". Counsel for all parties joined to support the validity of s. 10, and the essence of their submission was that the deviation produced by s. 10 was so small that it could not be said to be outside the discretion of the Parliament to legislate in that manner. However, the deviation was one that it was practicable to avoid. The Parliament did not amend s. 10 for the purpose of better ensuring that the number of members chosen in the several States will be in proportion to the respective numbers of their people, for the amendment does not have that result. The amendment was not made for the purpose of ensuring that each State should have five members. What the Parliament did by the Representation Act 1964 was to modify the provisional method provided by s. 24, and re-enacted in s. 10, in a way that did not lead to the number of members chosen in the several States being more exactly in proportion to the respective numbers of their people, but did lead to the number of members of the House of Representatives exceeding twice the number of the senators to a greater extent than would have been the case if the provisional method had not been modified. It is practicable to ensure that the number of members of the House of Representatives will be more nearly twice the number of senators than will be the case if s. 10 (as amended) is applied. In other words, s. 10 (as amended) has the result that the number of members of the House of Representatives is not as nearly as practicable twice the number of the senators. (at p550)
22. I have discussed the effect of the Representation Act 1964 on s. 10, but I have not referred to its form. The Representation Act 1964 did not repeal s. 10 and replace it by a new provision. It simply amended the section by omitting from par. (b) the words "greater than one-half of the quota". For the reasons given, s. 10, as so amended, would be contrary to s. 24 of the Constitution and invalid. It was therefore not within the competence of the Parliament to enact the amendment, and the amendment never became part of the Representation Act 1905: cf. Federal Commissioner of Taxation v. Clyne (1958) [1958] HCA 10; 100 CLR 246, at pp 266-267 . Section 10 remains valid, unaffected by the amendment attempted to be made in 1964. (at p550)
23. A question was also asked as to the validity of ss. 6, 7, 8 and 9 of the Representation Act 1905. No one suggested that there was anything constitutionally objectionable in those provisions themselves. Plainly they are in themselves valid. The question whether they are invalid as a consequence of the invalidity of ss. 3, 4 and 12 (a) of the Act does not in my opinion need to be decided. No doubt it will not be practicable to give any operation to ss. 6 to 9 unless the invalid parts of the Act are replaced by valid provisions. (at p550)
24. I would answer the questions asked as follows:
(i) Whether s. 1A of the Representation Act 1905-1973 is a valid law of the
Parliament: A. Yes.
(ii) Whether s. 10 of the Representation Act 1905-1973 is a valid law of the
Parliament: A. Yes, but the amendment attempted
to be made by the
Representation Act 1964 never became part of the section.
(iii) Whether ss. 6, 7, 8 and 9 of the Representation Act 1905- 1973 are
valid laws of the Parliament: A. Yes.
(iv) Whether s. 10 of the Representation Act 1905-1964 is a valid law of the
Parliament: A. See answer to question (ii).
Questions (v) and (vi) (which arise only if the answer to (iv) is "No") are
unnecessary to answer. (at p551)
STEPHEN J. In these proceedings the Court is called on to answer six questions concerned with the mode of composition of the House of Representatives so far as concerns those of its members who are chosen in the several States of the Commonwealth. (at p551)
2. The first three questions inquire as to the validity of various provisions of the Representation Act 1905-1973, including s. 10. The fourth question is whether s. 10 of the Act as it stood before amendment by the Representation Act 1973 is valid; it assumes that its amendment brought with it invalidity and in effect asks whether before amendment the section was valid and if so whether, despite the invalidating amendment, it remains in effect as it stood before amendment. The fifth question assumes the invalidity of one or more of the sections of the Act and asks how, in those circumstances, the number of members of the House to be chosen in the several States is to be determined. The sixth and last question proceeds upon the assumption that, because of invalidity of the Act, determination of the number of members of the House is to be by reference to s. 24 of the Constitution; on that assumption it seeks an interpretation of the expressions "people of the Commonwealth" and "senators" in s. 24. (at p551)
3. The Representation Act purports to "otherwise provide" as contemplated by s. 24 of the Constitution; that is to say, to prescribe the manner in which the number of members of the House of Representatives to be chosen in each State is to be determined. While contemplating that Parliament may make its own prescription, section 24 not only supplies a provision to operate in the meanwhile but also quite narrowly confines that which Parliament may prescribe. It does so by imposing three requirements: that the number of the members of the House of Representatives "shall be, as nearly as practicable, twice the number of senators", that the number of members "chosen in the several States shall be in proportion to the respective numbers of their people" and that "five members at least shall be chosen in each Original State". It is against the background of these constitutional requirements that the validity of the challenged provisions of the Representation Act is to be judged. (at p551)
4. The Constitution does not directly determine the number of members of the House; instead it employs the membership of the Senate as a measure. By s. 7 it requires that there shall be six senators for each Original State, which number Parliament may increase but not decrease. Whatever may be the total number of senators, starting with a minimum of at least thirty-six, the number of members of the House must be as nearly as practicable twice that number (s. 24, first paragraph). Parliament's power to enact laws altering the number of the members of the House is expressed to be "subject to this Constitution" (s. 27); that is, subject to this two-to-one formula contained in the first paragraph of s. 24. (at p552)
5. It will be necessary to look again at that first paragraph but, for the moment, I pass to the second paragraph of s. 24. It is not directly concerned with the total number of members but with the determination of the number to be chosen in each State. This is to be proportionate to population and it is solely with the attainment of proportionality that the paragraph is directly concerned. This requirement of proportionality is a curious one; it arises from the use of States, even in the so-called "national" or popular lower chamber, as forms of electoral unit, a use which reflects the essentially federal nature of the Constitution. Having determined that the Senate should be a federal chamber, or House of the States, the lower House might then have been constituted without reference to State boundaries or State representation. Once the number of members had been determined all that would then have been required would be the creation of a corresponding number of electorates, each returning a member having no overt connexion with any State and whose electorate might have extended across State boundaries. (at p552)
6. That this was not done is not simply to be attributed to the short-term convenience of using existing State electoral systems, as is done by ss. 29-31 of the Constitution. The last paragraph of s. 24, requiring that each Original State should have at least five members, and the last paragraph of s. 128, requiring a quite special majority at a referendum before the proportionality or minimum number of "representatives of a State" in the lower House may be reduced, demonstrates that the lower House is not to be wholly "national" in concept but is to possess a carefully entrenched measure of State representation so that there shall be "proportionate representation of" States in both Houses - s. 128 (and see s. 121), each State forming one electorate in the absence of legislative provision to the contrary (s. 29). Hence the provision for proportionality in s. 24. This is calculated to reflect within the lower House the relative population strengths of the several Original States, qualified only by the requirement that, as populations were then distributed in 1900, the sparsely populated States of Western Australia and Tasmania should nevertheless send five members to the House. (at p553)
7. This essential element of proportionality s. 24 seeks to attain by allocating the total number of seats in the lower House among the States by reference to population, subject only to a minimum representation of five members per State. The second paragraph of s. 24 achieves this in what is, perhaps, the most obvious fashion, by the establishment of a quota of population per available seat and the apportionment of numbers of seats accordingly. The inevitable occurrence of remainders when quotas are applied to State populations is resolved in a manner which seeks to provide relatively accurate proportionality, the nearest whole number of seats being the number to be filled by members to be chosen in the State in question. (at p553)
8. In such a process, concerned exclusively with the States, the population figures of entities other than the States would seem to have no part to play, any more than would the number of representatives of those populations. Each appears to be wholly irrelevant to the subject matter of the second paragraph of s. 24, the ensuring of proportionality of representation for each State. The subject matter of the second paragraph, "the number of members to be chosen in the several States", being devoted exclusively to a subject matter of concern only to the States, one would expect that in any formula devised for the ascertainment of those numbers its components would comprise matters exclusively relevant to the States. On this view the "people of the Commonwealth" referred to in sub-par. (i) would be confined to people of the States and the reference to senators would be similarly restricted. (at p553)
9. Of course, whatever number is arrived at as the quota under sub-par. (i), proportionality between the States will not thereby be affected in any predeterminable way. Thus if Territory populations or, for that matter, world populations, were included in the dividend and Territory senators or, if one wished, United States senators, were included in the divisor the resultant quota would, when applied to the respective State populations, still accurately enough reflect proportionality between the population size of each State and the number of members to which it is entitled. The only significance of the quota figure is that the larger the quota, the smaller will be the whole number produced by its division into a State's population. (at p553)
10. It is not, then, proportionality which may be impaired by the identity of the components of the quota calculation but, rather, the usefulness of the figure resulting from the application of the quota to State populations. What is desired is a quota figure as divisor which, when applied to the dividend, the State populations, will produce quotients for the States which will together equal the total number of available seats in the lower chamber; that is the ideal. (at p554)
11. A quota derived by dividing the aggregate populations of the States by the number of seats available to those members to be chosen in the States will best fulfil that requirement. To introduce Territory seats and Territory populations into the quota calculation will, unless by chance they bear precisely the correct proportion the one to the other, distort the final result; to introduce the one and not the other will certainly lead to such distortion. (at p554)
12. For these reasons I would regard the second paragraph as manifestly requiring that the phrases "the people of the Commonwealth" and "twice the number of the senators" be understood as referring to people of the States and to senators for the States. (at p554)
13. It follows that when the legislature, by the Representation Act, seeks to provide a statutory substitute for the two numbered subparagraphs of the second paragraph of s. 24 and is confronted with the existence of Territory populations and Territory representatives it is wholly appropriate that it should expressly exclude them from the calculations with which it deals. It is just this which s. 1A and s. 10 of the Representation Act 1905-1973 now do as a result of amendments made by the Representation Act 1973. I would accordingly uphold in this respect their validity as appropriate exercises of the legislative power as contemplated by s. 24. I accordingly answer question 1 in the affirmative. (at p554)
14. There is a quite distinct feature of s. 10 of the Act, introduced in 1964, which is also said to affect its validity. Section 10 represents the legislative replacement of sub-pars. (i) and (ii) of s. 24 of the Constitution. Before 1964 the section echoed the terms of the two subparagraphs of s. 24. Since 1964 it has in some measure departed from the model they created by providing that if, upon the calculated quota being divided into a State's population, a remainder results "one more Member shall be chosen in the State". This is to occur regardless of the size of the remainder and may be contrasted with the operation both of the constitutional model and of s. 10 as it stood before 1964, when it still adhered to that model. In each the consequence of a remainder depended upon its size; only if it was "greater than one-half of the quota" would it involve the choice of one more member in a State. (at p555)
15. The question is whether in its present, post-1964, form s. 10 conforms to the two constitutional requirements of s. 24, first that the number of members of the House of Representatives "shall be, as nearly as practicable, twice the number of senators" and, secondly, the proportionality requirement, that "the members chosen in the several States shall be in proportion to the respective numbers of their people". Of these two requirements the latter is absolute in form while the former is stated in qualified terms. It will be by reference to these requirements that the validity of s. 10 in its present form can be determined. (at p555)
16. The pre-1964 method of dealing with remainders necessarily maintained with greater accuracy the principle of proportionality. I have so far referred in general terms to proportionality and to its importance in ensuring a just share of representation in the lower House as between one State and another, having regard to their respective populations. The quota system provided by s. 24 of the Constitution requires that a particular ratio of representatives to population should be observed, that ratio being one representative for every quota's worth of population in a State. This is the proportionality of which s. 24 speaks, the proportion which a State's population bears to its representation. It results in each State being accorded its just share of representation, subject always to a minimum representation of five, because the same ratio or quota is to be applied in the case of each State. (at p555)
17. However, because representatives must be whole men or women, proportionality creates a problem of fractions, to be resolved by some rule of approximation of which s. 24 (ii.) provides an example. The rule which it provides and which, until 1964, s. 10 of the Act also adopted, provides, in effect, that the nearest whole number shall prevail. By doing so it ensures that no violence is done to the principle of proportionality. In contrast, the present rule of approximation, introduced by the amendment made to s. 10 in 1964, under which any fraction earns fruther representation, does not preserve to the same degree the principle of proportionality. (at p555)
18. The problem posed by the impossibility of fractional representation in a legislature has long been recognized as intractable. Daniel Webster, in his report of the United States Senate on the apportionment of 1832 (Foster on the Constitution (1896), vol. 1, 430-446, at p. 434), observed that "of representation, there can be nothing less than one representative". Faced with this fact and the imperfect reflections of proportionality to which it gave rise, the report concluded that nevertheless "Congress is not absolved from all rule, merely because the rule of perfect justice cannot be applied. In such a case, approximation becomes a rule; . . . The nearest approximation to exact truth or exact right . . . prevails . . . not as a matter of discretion, but as an intelligible and definite rule" (p. 435). This is a rule to which s. 10 originally conformed but which, in its present form, it ignores. (at p556)
19. This may be seen from the following illustration. Assume a ratio of one representative to 10,000 inhabitants and imagine a multi-storied building served by a staircase having 10,000 steps between each floor, up which staircase winds a queue of the State's population, one to each step. The attaining of each floor entitles the State to one more representative. As the State's population increases, the head of the queue proceeds up the staircase from floor to floor, its representation increasing by one representative for each floor attained. If population numbers jumped 10,000 at a time there would be no problem, but in fact the queue lengthens or shortens, step by step, not floor by floor, and only by some rule of approximation can entitlement to representation be determined at any particular state of the queue. That rule should be one that best conforms to the constitutional requirement that representation be proportionate to numbers of the people. If the queue extends, say, up past floors one and two, the State's entitlement will then be at least two representatives and if it reaches only a few steps above the second floor an entitlement to two representatives will ensure close approximation to the ratio of 1: 10,000. However, once the queue lengthens so that its head is closer to the third than to the second floor, a closer approximation to the ratio will result from an entitlement to three, rather than two, representatives. (at p556)
20. The rule of the nearest whole number will provide these results. Proportionality will be well maintained, consistently with the need for approximation, by adopting, as a State's entitlement, that floor number, that is to say that whole number of representatives, to which the head of the queue is closest. This is precisely the way in which the pre-1964 rule of approximation operated. (at p556)
21. The post-1964 rule departs from this. Under it, as soon as the first step above the second floor is attained, representing a population of 20,001, the State is, as it were, deemed to have extended its queue up to the third floor, thereby entitling it to a third member although in fact its population has barely risen above the second floor. (at p557)
22. Since it is with approximation that these rules are dealing, their application will always be subject to that degree of departure from the maintenance of true proportionality inherent in any rule of approximation. However if the mid-point in the quota or ratio (with a quota of 10,000, or a ratio of 1:10,000, the mid-point is 5,000) represents the point of true proportionality, where the head of the notional queue has just reached the landing of a particular floor, the scope for disproportionality is confined to a minimum since it will never exceed half the quota or ratio, in the example, 5,000; add 5,001 people to the queue and the floor above becomes the nearest to the head of the queue; the State becomes entitled to one more representative and the departure from true proportionality drops to 4,999. In the case of the post-1964 rule the point of true proportionality is not at mid-point but right at one end of the range. Accordingly it provides scope for far greater departure from true proportionality. In its case as soon as the head of the queue rises one step above the second floor an entitlement to a third representative arises, although the third floor is still 9,999 steps above. The scope for lack of proportionality is thus virtually double that under the pre-1964 rule. (at p557)
23. This feature of the post-1964 rule of approximation remains a defect despite the fact that, whichever rule of approximation is applied, the maximum extent of relative inequality of representation which may occur as between any two States when fractions remain after dividing the quota into a State's population, will always be the quota minus one. As already observed, it is proportionality in the sense of the maintenance of a specific quota or ratio of inhabitants of a State per representative that s. 24 requires; it is only consequential upon this requirement, and because the same quota or ratio is applied in all States, that equity with respect to representation in the House of Representatives, is achieved as between States. (at p557)
24. I turn now to the question of the nexus between membership of the two chambers, the relationship, as nearly as practicable, of two-to-one between House and Senate. Before its amendment in 1964, s. 10 provided a more perfect mode than it now does of attaining this. Both modes, pre- and post-1964, began with a quota; the Senate now numbers sixty senators chosen in the States and the quota is derived by dividing total population by one hundred and twenty, twice the number of such senators. That quota is then applied to State populations and the effect of allowing an extra member only when the remainder exceeds one-half the quota, as was done before 1964, will be more closely to adhere to the two-to-one relationship than has been the case since 1964, when an extra member is allowed whenever any remainder, no matter how small, is produced. In two situations - one where there are no remainders at all and the other where all remainders are greater than one-half - the two methods will give the same result. The first situation is extremely unlikely to occur, and in fact has never occurred. The second has occurred once, in the 1954 determination; in those circumstances the post-1964 method would have produced the same number of representatives as the pre-1964 method - 122. Otherwise, the post-1964 method would always have produced a less perfect result and has, since its adoption, done just this, the nexus having been departed from to a far greater extent than had the first method, the pre-1964 method, been retained. (at p558)
25. Whether or not the size of the House of Representatives should be linked by formula to numbers in the Senate was a matter of high controversy and much debate when the Constitution was being framed; once a nexus was decided upon the need for some flexibility was obvious and this was achieved by a criterion of practicability. By the 1890s extensive United States experience in the apportioning of representatives between States in a federation had demonstrated the difficulty of attaining anything approaching fair proportionality of representation if at the same time the total number of representatives was to be fixed in advance. This was a difficulty which would be heightened, in Australia's case, by the requirement that, regardless of population, there should be a minimum of as many as five representatives per State. It was no doubt with such difficulties in mind that the nexus provision was expressed as it is, in terms of "as nearly as practicable". (at p558)
26. It would seem from the words of the nexus provision that "practicable" should bear its ordinary meaning, descriptive of tthe quality of being "capable of being carried out in action; feasible" (Shorter Oxford English Dictionary). The number of members of the House is, then, to be as nearly twice the number of the senators as is capable of being carried out in action, as is feasible. (at p558)
27. However it is one thing to require the concept of a perfect nexus between the numbers in the two chambers to give way to the extent necessary for the attainment of more perfect proportionality of representation; it is quite another to sacrifice both proportionality and nexus at one and the same time and to do so without promoting any purpose which has been accorded any constitutional recognition. Yet this is what the 1964 amendment to the Representation Act has done. By attributing to the existence of a remainder, however small, the consequence that an additional member shall be added to a State's representation in the House the only two relevant constitutional injunctions, those directed to proportionality of representation and to nexus, have been prejudiced. (at p559)
28. When Parliament was empowered to substitute for the method specified in s. 24 of the Constitution its own method for determining the number of members to be chosen in the several States it did not become entitled to disregard these two governing injunctions which, in s. 24 precede that grant of power. If a purported exercise of the power results in an enactment which ensures that, when compared with the model created by s. 24, there will be both less perfect proportionality and also less perfect attainment of the nexus it will be no good exercise and will be unconstitutional. (at p559)
29. In saying this I am aware that there exist more perfect methods of apportioning members in the House of Representatives between States in proportion to their respective populations than that provided for in s. 24 of the Constitution and in the pre-1964 Representation Act. A reading of the American experience (Harvard Law Review, vol. 42 (1929), pp. 1021-1038 and Schmeckebier's Congressional Apportionment (1941), pp. 107-126) demonstrates the variety of possible modes of apportionment and the defects to which a number are prone. Had s. 24 of the Constitution not served to give to the method prescribed in sub-pars (i) and (ii) of its second paragraph the imprimatur of constitutionality there might be little reason for concluding that that method, which was also the pre-1964 statutory method, necessarily satisfied the constitutional requirements of nexus and proportionality. There would in that event have been much to be said for the view that, since a number of methods existed, of varying merits, this Court should not strike down legislation which chose one of those methods in preference to others, even if it seemed to be less perfect than another which was known to the Court. (at p559)
30. However that is not the position with which the Court is confronted. Instead it knows of one method, assigned constitutional validity by its inclusion in the Constitution itself, and can see for itself that the present statutory method is less perfect in the two relevant respects, the maintenance of proportionality and of nexus, as nearly as practicable. There may be added to this the fact that the undoubtedly constitutional method has not been shown to involve any peculiar practical difficulties. (at p559)
31. Although the parties to these proceedings and each of the several States who were given leave to intervene were unanimous in urging the validity of the present form of s. 10, the Court, having had the issue squarely raised before it by the questions which have been asked of it, is bound to determine the matter in the light of its own understanding of the Constitution. (at p560)
32. In my view the amendment made to s. 10 by s. 3 of the Representation Act
1964 is invalid. That is not to say that s. 10 is wholly invalid. On the
contrary it is, in my
view, valid and currently operative
in the form it took
before the purported amendment in 1964. As already mentioned, the section,
in
its pre-1964 form, precisely
echoed the provisions of sub-par. (ii) of the
second paragraph of s. 24 of the Constitution and was clearly valid. The form
of the purported amendment made in 1964 is of high significance. Section 3 of
the Representation Act 1964 was as follows:
"3. Section ten of the Principal Act is amended by omitting from
paragraph (b) the words 'greater than one-half of the quota'."
There was, then, no repeal of the original s. 10, no substitution of an entire
new section in its place; had that been done the
invalidity affecting the
purported amendment may not necessarily have extended to its repealing
provisions. The point need not
now be decided since the effect of s. 3 of the
1964 Act was quite different, it was restricted to the striking out of those
words
in s. 10 the retention of which I regard as essential to validity. (at
p560)
33. In those circumstances I see no reason why s. 3 of the 1964 Act should not be regarded, to borrow the language of Dixon C.J. in Federal Commissioner of Taxation v. Clyne [1958] HCA 10; (1958) 100 CLR 246, at p 267 as "invalid ab initio", as a measure which "it never was within the competence of the Parliament to enact" and which must therefore be treated as void. The Representation Act is then to be read not "as it is written" but "as it validly exists" (1958) 100 CLR, at p 268 ; that is to say, it is to be read as it would stand if the amendment purportedly made by s. 3 of the 1964 Act be disregarded. It is to the Act as so understood that the later amendments made by the Representation Act 1973 are applicable. Although dealing with a rather different statutory situation I do, I hope, no violence to the words of the Chief Justice in seeking to apply to the present circumstances what he said in Clyne's Case. (at p560)
34. The conclusions which I have expressed to date provide answers to three of the first four questions which are posed, concerning the validity of legislation. I have held valid s. 1A, and invalid the amendment made to s. 10 by s. 3 of the Representation Act 1964; s. 10 of the Act as it stood before 1964 remains valid and operative, amended only by the express terms of s. 5 of the Representation Act 1973 and affected in its operation by the terms of the new s. 1A which that Act introduced. (at p561)
35. The remaining question of legislative validity concerns ss. 6 to 9 of the Representation Act 1905-1974. This was a matter but little argued; the sections are themselves in no way unconstitutional although their effective operation may have been affected by the conclusions arrived at by this Court in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR 1 . I would answer the question concerning them in the affirmative. (at p561)
36. The remaining two questions may be disposed of quite shortly. The first, question 5, may be answered, consistently with what I have already said, by saying that s. 10 of the Representation Act will validly govern the determination of the number of members of the House of Representatives in the several States, that section being read as unaffected by s. 3 of the 1964 Act but as amended by the 1973 Act. (at p561)
37. Question 6 presupposes that recourse must be had to s. 24 of the Constitution for the determination of numbers in the lower House; since that is not my view this question is unnecessary to answer. (at p561)
38. I have so far said little of the first paragraph of s. 24 other than to give effect to its nexus requirement, treating it as involving a ratio of sixty senators to one hundred and twenty members. The questions asked do not strictly require me to go further. However, having referred to the existence of senators and representatives for territories of the Commonwealth and having given to the phrases "people of the Commonwealth" and "senators" in the second paragraph of s. 24 a meaning exclusive of territorial populations and senators, I should, I think, go on to state how, consistently with all this, I understand the operation of the first paragraph of s. 24; in particular, what application, if any, the nexus requirement has to senators and representatives of territories and what is the meaning of "the people of the Commonwealth" in that paragraph. (at p561)
39. The judgments of the majority in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 , as I understand them, treat the provisions of s. 122 of the Constitution as a proviso or exception to ss. 7 and 24. Jacobs J. expressly says so (1975) 134 CLR, at p 273 , Murphy J. uses similar language (1975) 134 CLR, at p 282 and I would not understand Mason J. (with whom McTiernan J. agreed) to be expressing any different view. (at p561)
40. If s. 122 is to be understood as an exception engrafted on to s. 24, it would seem that the particular form of representation of a territory which Parliament may allow need in no way conform to the requirements of the first paragraph of s. 24. The mode of representation might be otherwise than by "members directly chosen" by the people of a Territory and, in the case of the House of Representatives, need not be such that, when combined with the numbers of members chosen in the several States, the total is, "as nearly as practicable", twice the number of senators. The nexus requirement of s. 24 is then seen to be applicable only as between senators for States and members chosen in the States and "the people of the Commonwealth" in the first paragraph of s. 24 describes only the people of the States of the Commonwealth. Indeed the latter conclusion seems necessarily to follow from the terms of s. 122; Parliament is in no way obliged to make any provision whatever for representation of a Territory in either House and for long did not do so. External Territories of the Commonwealth are still unrepresented although, as Mason J., with whom three other Justices agreed, observed in Berwick Ltd. v. Gray [1976] HCA 12; (1976) 133 CLR 603, at p 608 those "external Territories form part of the Commonwealth of Australia". Were the "people of the Commonwealth" in the first paragraph of s. 24 taken to mean other than "the people of the States" there would have been a long-standing disregard of the requirements of s. 24, still persisting in the case of external Territories such as Norfolk Island and Christmas Island. (at p562)
41. The result, then, of the decision in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 is that the nexus requirement operates only in the case of members of the House of Representatives elected in the States and then only in relation to senators for the States. Once Territories are accorded representation the nexus requirement will no longer necessarily dictate the strengths of the two chambers when meeting together in joint sittings under s. 57. Representatives of Territories may be made full members of Parliament although not necessarily "directly chosen" by their populations. (at p562)
42. I would answer the questions asked as follows:
Question (i) - Yes. Questions (ii) and (iv) - Yes, but the amendment
attempted to be made by s. 3 of the Representation Act 1964
never became part
of the section. Question (iii) - Yes. Questions (v) and (vi) (which arise only
if the answer to question (iv)
is "No") are unnecessary to answer. (at p562)
MASON J. I agree with the reasons for judgment which have been prepared by Stephen J. (at p563)
2. I would only add that specifically I agree with the statement that the majority decision in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 treats that part of s. 122 which provides for Territory representation in each House of the Parliament as a proviso or exception to ss. 7 and 24 of the Constitution. Certainly that is the view which I expressed (1975) 134 CLR, at p 270 and I see no reason to depart from it. The plaintiff placed some reliance on the sentence which appears later, "If paramount effect is also to be given to the language of s. 24 it is not easy to perceive why the citizens of the Northern Territory and the Australian Capital Territory are not presently to be numbered among 'the people of the Commonwealth', although they would fall within that description in the event that the Territories were to be admitted as States" (1975) 134 CLR, at p 271 . However, this was a comment addressed to the consequences which might flow from the acceptance of a contrary view, that is, a view which treated ss. 7 and 24 as paramount to s. 122 and to the possibility that a distinction might be drawn between the Senate and the House in terms of representation of the Territories. (at p563)
3. Accordingly, I would answer the questions asked in the manner proposed by Stephen J. (at p563)
JACOBS J. The action is a relator's action claiming, inter alia, in the
indorsement to the writ of summons:
"(b) a declaration that s. 1A of the Representation Act 1905- 1974
inserted by Act No. 40, 1974 s. 3 is invalid and ultra vires
the legislative
power of the Parliament of the Commonwealth of Australia;
(c) a declaration that s. 10 of the Representation Act 1905- 1974 (as
amended by Act No. 40, 1974 s. 5) is invalid and ultra
vires the legislative
powers of the Parliament of the Commonwealth of Australia;
(f) a declaration that ss. 6-9 inclusive of the Representation Act
1905-1974 are invalid and ultra vires the legislative powers
of the
Commonwealth of Australia;
(g) a declaration that the procedure and/or manner for determining the
number of members of the House of Representatives shall
be in accordance with
s. 10 of the Representation Act 1905-1964." (at p563)
2. References to the Representation Act 1905-1974 in the above quoted
paragraphs and in the questions set out hereunder should
be references to the
Representation Act 1905-1973. Pursuant to s. 18 of the Judiciary Act 1903
(Cth) the following questions were
directed by Gibbs J. to be argued before a
Full Court:
"(i) Whether s. 1A of the Representation Act 1905-1974 is a valid law of
the Parliament.
(ii) Whether s. 10 of the Representation Act 1905-1974 is a valid law of
the Parliament.
(iii) Whether ss. 6, 7, 8 and 9 of the Representation Act 1905- 1974 are
valid laws of the Parliament.
(iv) Whether s. 10 of the Representation Act 1905-1964 is a valid law of
the Parliament.
(v) Whether, if the answer to any of the preceding questions is 'No', the
number of Members of the House of Representatives
in the several States should
be determined -
(a) In the manner provided by some one or more of the sections of the
Representation Act and, if so, which section or sections;
(b) In the manner provided by sub-pars (i) and (ii) of the second
paragraph of s. 24 of the Constitution; or
(c) In some other and, if so, what manner.of Members of the House of Representatives to be chosen in the several States in the manner provided by sub-pars (i) and (ii) of the second paragraph of s. 24 of the Constitution -
(vi) If the answer to (v) (b) is 'yes' whether, in determining the number
3. For the relator it was submitted that questions (i) and (ii) should be
answered "No" whilst the defendants sought an affirmative
answer. But both
relator and defendants, as well as all the States which intervened, concurred
in seeking an affirmative answer
to question (iii). (at p564)
4. The argument for the relator is that s. 24 of the Constitution requires:
(1) that the manner of ascertaining the number of members of the House of
Representatives ("members") chosen in the several States
in proportion to the
respective numbers of their people must take account of all the people of the
Commonwealth (including Territories)
and not merely the total number of the
people in the States of the Commonwealth; and
(2) that for the purpose of determining the number of senators in order to
fulfil the requirement that the number of members
of the House of
Representatives shall be as nearly as practicable twice the number of
senators, there must be included in the number
of the senators representatives
in the Senate of any Territory pursuant to a law of the Parliament made under
s. 122. (at p565)
5. I shall deal with this second submission first. The submission does not go so far as to say that any such representative would in all circumstances need to be included in the number of senators for the purposes of s. 24 but is limited to saying that where, as is the case under the Senate (Representation of Territories) Act 1973 (Cth), representatives of Territories in the Senate have all the powers, immunities and privileges of senators representing States, then such representatives must be included. If this submission were accepted, s. 24 would be a very strange section indeed. A representative of a Territory in the Senate might or might not be a senator within the meaning of that word in s. 24 and, presumably, in Ch. I generally, depending on the nature of the representation which under s. 122 the Parliament allowed. I do not think that that can possibly be right. In my opinion s. 24 and the rest of Pt III of Ch. I deal only with the House of Representatives so far as it is constituted by representatives from the States. The representatives of a Territory in the Senate do not come within the langauge of Ch. I by force of the provisions of Ch. I itself but may do so as a result of the exercise and the manner of exercise of the powers of the Parliament under s. 122. In so far as the operation of the provisions in Ch. I may be affected by the presence in either House of Parliament of representatives of Territories, that effect flows from the exercise by Parliament of the power under s. 122. In this way s. 122 may be described, as I described it in Western Australia v. The Commonwealth (1975) 134 CLR, at p 273 , as a proviso or exception to and an extension of the earlier provisions of the Constitution which deal with the Senate and the House of Representatives. I do not find it at all surprising that the Constitution should repose the discretion in the Parliament to affect what would otherwise be the operation of many provisions in Ch. I, as I explained in Western Australia v. The Commonwealth. But it would be suprising if the power of the Parliament to allow representation of a Territory in either House of Parliament "to the extent and on the terms which it thinks fit" should extend beyond matters of "extent" and "terms" to a power to affect the two-to-one ratio required by s. 24, a section which of its own force applies only to the States. Though the operation of Pt III of Ch. I may be affected by laws passed under s. 122 in so far as those laws deal with extent and terms of representation, a law which affected the operation of s. 24, in particular the first paragraph thereof, would not be such a law. Section 24 therefore remains a provision dealing with the representation of the States in the House of Representatives despite any law passed under s. 122, and howsoever representatives of the Territories may be designated and whatever be the manner and extent of their representation. (at p566)
6. I return now to the submission that the manner of ascertaining the number of members of the House of Representatives chosen in the several States in proportion to the respective numbers of their people must take account of all the people of the Commonwealth, including Territories. The submission is founded on the opening words of s. 24 - the requirement that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth. I have expressed my views on the concept and notion conveyed by these words in my reasons given jointly with McTiernan J. in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR, at pp 36-37 . They do not require that all people of the Commonwealth participate in the choice. Further, my view that s. 122 is the provision which wholly governs representation of Territories leads to the conclusion that s. 24 is not directed to such representation. Thus the first paragraph of s. 24 does not require choice of representatives by the people of the Territories. The paragraph does not refer to such people. It and succeeding paragraphs of s. 24 refer to the people of the States of the Commonwealth. (at p566)
7. It strongly reinforces this conclusion, which I have reached on broader grounds, that if "people of the Commonwealth" is given a meaning other than "people of the States of the Commonwealth" the manner of determining the number of members of the House of Representatives chosen in the separate States, which s. 24 requires until the Parliament otherwise provides, could become unworkable if there were not a corresponding representation of Territories in the Senate by persons who could be described as senators. It would become unworkable if the population of the Territories substantially increased; for the quota under s. 24 (i) would be ascertained with twice the number of senators from the States as the divisor and the total population, including Territory population, as the dividend. Then under s. 24 (ii) the number of people in the State would be divided by this quota. The result would not necessarily give twice the number of senators. A simple, if extreme, example proves this. Assume the population of each State to be 3,000,000. Assume the population of the Territories to be 6,000,000. On the relator's argument "the people of the Commonwealth" would be 24,000,000. Assume the number of senators to be sixty and the number of members of the House of Representatives therefore one hundred and twenty. The quota under s. 24 (i) would be 200,000. The number of members for each State pursuant to s. 24 (ii) would be 3,000,000 divided by 200,000, viz. fifteen per State, or ninety in all, not the one hundred and twenty members predicated. No such difficulty can arise if the dividend under s. 24 (i) is the number of the people of the States of the Commonwealth. (at p567)
8. The 1974 amendments to the Representation Act were thus no more than declaratory of the constitutional requirement. As such, they might validly be enacted for purposes of clarity. I would answer questions (i) and (ii) in the manner proposed by Gibbs J. and Stephen J. An affirmative answer to question (iii) is consequential. (at p567)
9. The Court is placed in an unusual situation in relation to question (iv) in that no argument to the contrary of an affirmative answer has been presented. It might be arguable on the present state of authority (In re Judiciary Act and Navigation Act [1921] HCA 20; (1921) 29 CLR 257 that there is no "matter" before the Court which raises this question, but I would be loath to reach such a conclusion. It is most convenient that this Court should be able to be called on and should have a discretion to determine questions of this kind respecting the validity of legislation and in many ways I regard the conclusion in In re Judiciary Act and Navigation Act as regrettable, unless it does no more than affect the manner of bringing such questions before the Court. I would here refer to my remarks in The Commonwealth v. Queensland [1975] HCA 43; (1975) 134 CLR 298, at p 326 . (at p567)
10. There has been no application to amend the writ by deleting par. g. of the relief claimed and therefore the consequential question ordered to be argued before a Full Court should be answered. I would give the same answer to question (iv) as to question (ii). I wish to add little to what has been said by Gibbs J. and Stephen J. in their reasons for judgment. In accord with the approach which I have expressed earlier in these reasons, the number of members of the House of Representatives means the number of members representing the States in the House of Representatives. That the number of such members of the House of Representatives should be twice the number of the senators "as nearly as practicable" means as nearly as practicable when the two following requirements are met - first, that the number of members chosen in the several States shall be in proportion to the respective numbers of their people and, secondly, that at least five members shall be chosen in each Original State. The first of these two requirements may, but is not likely to, prevent the number of members being twice the number of senators, although an exact proportion of members to the respective numbers of the people of the several States is extremely unlikely. The closest to an exact proportion is the allowing of an extra member where there is a remainder greater than one-half of the quota. This is a matter of necessity through the virtual impossibility of exact proportions. However, except in so far as a failure to attain an exact proportion is cured or ameliorated by altering the ratio in numbers between members of the House of Representatives and senators such an alteration is not permissible. It is not permissible to call in aid "practicality" vis-a-vis ratio in attempted solution of a problem which breaking the ratio does not solve. An additional member on any remainder does not keep the proportions as closely as an additional member on a remainder greater than one-half of the quota. It does not tend to cure or ameliorate a failure otherwise to attain an exact proportion. (at p568)
11. However, it may not be possible to give five members at least to each Original State and at the same time to keep both the ratio of two-to-one between members and senators and the required proportion of members between the States. If it is not possible then the ratio of members to senators gives way and there may be an additional member or additional members in any Original State added to the number of members in the House of Representatives without any alteration of the number of senators. The ratio will then have been kept "as nearly as practicable". (at p568)
12. I would answer the questions in the manner proposed by Gibbs J. and Stephen J. (at p568)
MURPHY J. Six questions have been argued pursuant to s. 18 of the Judiciary
Act 1904:
(i) Whether s. 1A of the Representation Act 1905-1973 is a valid law of the
Parliament? (at p568)
2. My understanding is that the majority in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 were of the opinion that s. 24 was concerned only with representation of the people of the States. (at p568)
3. My view was (1975) 135 CLR, at p 69 : "Apart from Territorial members (who are provided for under s. 122) the members are to be chosen by the people of the Commonwealth in the several States." The two-to-one nexus of representatives and senators in s. 24 is between the representatives of the States and the senators for the States. Representatives of the Territories in either House are there by an exercise of the discretionary power of Parliament under s. 122 which is quite outside the nexus provisions and, whatever their powers, privileges or description, are not to be taken into account for the purposes of s. 24. Representatives of the Territories in the Senate, although called senators (Senate (Representation of Territories) Act 1973) are obviously not senators for the States and are probably not to be regarded as senators for the purposes of certain sections of the Constitution. (For example, s. 17: it is questionable whether a senator for a Territory may be chosen as President of the Senate.) (at p569)
4. The discretionary power in s. 122 is a proviso or exception to s. 24 but not an unlimited discretion. Suggestions that Parliament could swamp either or both Houses by gross over-representation of the Territories have no substance. They are not compatible with the democratic theme of the Constitution. (at p569)
5. Section 1A of the Representation Act 1905-1973 correctly excludes representatives of the Territories from the determination of the number of representatives to satisfy the nexus and is valid. Answer. Yes. (at p569)
6. (ii) Whether s. 10 of the Representation Act 1905-1973 is a valid law of the Parliament. (at p569)
7. In Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth I said
(1975) 135 CLR, at p 78 :
"Section 10 of the Representation Act which provides for the
determination of the number of members of the House of Representatives,
was
amended in 1964 to provide that if, after division of the number of the people
of the State by the quota, there is a remainder,
one more member shall be
chosen in the State. That does not seem to be consistent with the nexus
provision of s. 24 of the Constitution, but its validity was not questioned in
these proceedings."
The legislative provision for remainders inserted by the 1964 Act is invalid.
It is calculated to defeat the command in s. 24:
its fatal flaw is that
whenever there is a remainder, the two-to-one ratio can not be attained. A law
which provided that all remainders
should be discarded would be equally
invalid: there would always be less representatives than the two-to-one ratio
required (except
where there was no remainder, the possibility of which is
quite remote). A law designed to ensure that the two-to-one ratio will
never
be achieved is not a compliance with but an evasion of the command in s. 24
and therefore beyond the limits of the discretion
granted to Parliament in s.
24 of the Constitution. (at p570)
8. Section 3 of the Representation Act 1964 is clearly invalid and the manner of dealing with remainders in s. 24 of the Constitution has remained in force. This means that a number of elections since 1964 for the House of Representatives have been conducted unconstitutionally. If the Parliament desires to make some other provision, as s. 24 allows, there is no difficulty in framing a law which will always achieve the two-to-one ratio. (at p570)
9. I agree to the proposed answer: "Yes, but the amendment attempted by s. 3 of the Representation Act 1964 never became part of the section". (at p570)
10. (iii) Whether ss. 6, 7, 8 and 9 of the Representation Act 1905- 1973 are valid laws of the Parliament. (at p570)
11. Yes, these sections are clearly within the competence of the Parliament and are valid. Yes. (at p570)
12. (iv) Whether s. 10 of the Representation Act 1905-1964 is a valid law of the Parliament. (at p570)
13. Yes, but it does not include the amendment made by s. 3 of the Representation Act 1964. (at p570)
14. Questions (v) and (vi) do not require an answer. (at p570)
AICKIN J. In this action Gibbs J. referred to the Full Court certain questions of law concerning the validity of certain provisions in the Representation Act 1905-1973 and matters consequential thereon. The sections concerned are ss. 1A, 6, 7, 9 and 10 of that Act. (at p570)
2. Those sections provide as follows:
"1A. In this Act, 'the people of the Commonwealth' does not include the
people of any Territory.
. . .the numbers of the people in accordance with this Act, make and forward to the Minister a certificate, in accordance with the form prescribed in Schedule B or by the regulations, setting forth the numbers of people of the Commonwealth and of the several States as on Enumeration Day.
6. The Chief Electoral Officer shall forthwith, after he has ascertained
. . .foregoing certificate, determine the number of Members of the House of Representatives to be chosen in the several States in the manner hereinafter mentioned.
9. The Chief Electoral Officer shall, immediately after the issue of the
3. Section 1A was inserted by s. 3 of the Representation Act 1973 (No. 40 of
1974) and s. 10 of the Representation Act 1905-1964
was amended by s. 5 by
deleting from par. (a) the word "Senators"
and substituting the words "the
Senators for the States". The
Representation Act 1964 (No. 97 of 1964) had
itself amended s. 10
of the Representation Act 1905-1938 by omitting from par.
(b)
the words "greater than one half of the quota" which had followed
after
the words "if on such division there is a remainder". (at
p571)
4. The principal basis for the allegations of invalidity is that the
provisions are in conflict with ss. 7 and 24 of the Constitution. Those
sections provide as follows:
"7. The Senate shall be composed of senators for each State, directly
chosen by the people of the State, voting, until the
Parliament otherwise
provides, as one electorate.
. . .each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.
Until the Parliament otherwise provides there shall be six senators for
. . .chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.
24. The House of Representatives shall be composed of members directly
5. The resolution of these questions depends at least in part on two recent
decisions of this Court. They are Western Australia
v. The Commonwealth (1975)
[1975] HCA 46; 134 CLR 201 and Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth
[1975]
HCA 53; (1975) 135 CLR 1 and an
understanding of the basis of the decision in each of
those cases is a necessary beginning to the
consideration
of this case. (at
p572)
6. It is convenient to consider first the validity of s. 10 (a). In Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 a number of constitutional questions arose. Amongst them was the validity of the Senate (Representation of Territories) Act 1973. A majority of this Court held that that Act was valid. Section 4 of that Act provided that each of the Australian Capital Territory (including the Jervis Bay Territory) and the Northern Territory of Australia shall be represented in the Senate by two senators directly chosen by the people of the Territory voting as one electorate. Section 5 (1) provided that each such senator shall have all the powers, immunities and privileges of a senator for a State and shall be included in the whole of the numbers of senators for the purpose of a quorum, and be counted when present for determining a quorum and shall have a vote on all questions arising in the Senate. By s. 5 (2) certain specific provisions of the Constitution are applied to such senators. It is further provided that the term of such senators is to commence on election and to expire on the day before polling day for the next succeeding general election for the House of Representatives. The validity of this provision depended in substance upon the relation between s. 24 and s. 122 of the Constitution. (at p572)
7. The majority of the Court comprised McTiernan, Mason, Jacobs and Murphy
JJ., with Barwick C.J., Gibbs and Stephen JJ. dissenting.
McTiernan J. agreed
with the reasons of Mason J. Mason J. said (1975) 134 CLR, at p 268 :
"A senator for the Territory is then in all important respects equal to
a senator for a State. Therein lies the principal
objection to the validity of
this Act. The question is whether s. 122 does allow the Parliament to provide
for the election of
senators for a territory having full voting rights in the
House."
His Honour said that it was urged that s. 7 of the Constitution exhaustively
defines the composition of the Senate in providing that it "shall be composed
of Senators for each State, directly
chosen by the people of the State" and
that that section and other provisions of Pt II of Ch. I reinforce the notion
that the Senate is a States' house and that a senator is necessarily a senator
from a State. His
Honour continued "But for the presence of s. 122 these
arguments would have overwhelming force", but he went on to say (1975) 134
CLR, at pp 269-270 :
"Just as s. 122 requires to be read with Ch. I so also account must be
taken of s. 122 in the interpretation of ss. 7 and 24. If they are to be read
as limiting the composition of each House for all time to representatives of
the States, it follows that
the power given to Parliament by s. 122 to 'allow
the representation of such Territory in either House of the Parliament to the
extent and on the terms which it thinks
fit' must be confined to a power to
provide for the appointment of representatives of the Territories who are
voteless, if not
voiceless. To so construe the power is to deprive it of
significant content, notwithstanding the wide and general words by which
it is
conferred."
He further said (1975) 134 CLR, at pp 270-271 :
"The apparent opposition which arises from the reference to
representation of the territories in s. 122 and the absence of any such
reference in ss. 7 and 24 is irreconcilable only if it be assumed that Ch. I
in making provision for the composition of the Senate and the House is
necessarily
speaking for all time. To my mind this assumption is misconceived.
Sections 7 and 24 should be regarded as making provision for the composition
of each House which nevertheless, in the shape of s. 122, takes account of the
prospective, possibility that Parliament might deem it expedient, having
regard to the stage which a Territory
might reach in the course of its future
development, to give it representation in either House by allowing it to elect
members
of that House. To the framers of the Constitution in 1900 the existing
condition of the Territories was not such as to suggest the immediate
likelihood of their securing representation
in either House, but the
possibility of such a development occurring in the future was undeniable. The
prospect of its occurrence
was foreseen and in my view it found expression in
s. 122.
Understood in this light, ss. 7 and 24 make exhaustive provision for the
composition of each House until such time as Parliament might see fit to allow
representation
to a territory under s. 122. This interpretation not only gives
full scope to the language of that section but it supports and gives authority
to the course
of constitutional development by which in recent years
Parliament has seen fit to provide for representation of the Northern
Territory
in the House of Representatives, first by a member without voting
rights, then by a member with qualified voting rights and finally
by a member
with unqualified voting rights. . . .
The contrary view is that representation by membership can only be
accorded to the people of a Territory on its admission as
a State, a view
which is assisted by the provision in s. 7 that the senators shall be chosen
by the people of the States, that is, new States as well as original States.
However, it is a
view which encounters difficulties when it is applied to the
House of Representatives. If paramount effect is also to be given to
the
language of s. 24 it is not easy to perceive why the citizens of the Northern
Territory and the Australian Capital Territory are not presently to
be
numbered among 'the people of the Commonwealth', although they would fall
within that description in the event that the Territories
were to be admitted
as States. To my mind it is not a convincing answer to this difficulty to say
that the House stands in a different
position from the Senate, that the
Territories may be accorded representation by membership in the House but not
in the Senate,
for s. 122 contemplates no such distinction. The power which it
confers on Parliament to allow representation of the Territories 'on the terms
it thinks fit' applies specifically 'in either House of the Parliament'."
Jacobs J. said (1975) 134 CLR, at p 273 :
"If one goes from the actual words used to the circumstances in which
they were so used I do not find it at all surprising
that s. 122 should
contain a provision which operates by way of proviso or exception to and by
way of extension of s. 7. In the main the framers of the Constitution looked
to the uniting of the States of the Australian mainland and Tasmania. But
their vision was not limited to this concept of
the Commonwealth. The preamble
to the Constitution Act, following the recital of the agreement of New South
Wales, Victoria, South Australia, Queensland and Tasmania to unite in one
indissoluble Federal Commonwealth, recites that it is expedient to provide for
the admission into the Commonwealth of other Australian
colonies and
possessions of the Queen."
He then concluded that (1975) 134 CLR, at pp 274-275 :
"There is therefore no reason to think that full representation in
Parliament of one at least of the Pacific possessions
would not have been
envisaged as a distinct possibility in the future. There must be added to this
the intention disclosed by the
Constitution that there would be an Australian
Capital Territory of no mean size and the lack of any suggestion that the
inhabitants thereof
should be disenfranchised. But against this it is said
that the admission of Territories to the full franchise would upset the
delicate balance of State power intended in the constitution of the Senate.
This is not correct. The intention was that the Original
States, large and
small, would have equal representation. The purpose was to ensure that the
larger States did not overbear the
smaller States. Neither full representation
of new States nor full representation of Territories in the Senate would
affect this
objective unless the numbers of new senators completely submerged
the original intention."
He then said that the plain terms of the Constitution (1975) 134 CLR, at p 275
:
" . . . allow the Parliament to make laws respecting the extent and
terms of representation of Territories in either House
of the Parliament. The
Senate is one such House and the language of s. 7, designed to establish the
Senate in the federation of the Original States, cannot override the specific
language of s. 122 with its vision of a future Commonwealth".
Murphy J. said of ss. 7 and 24 (1975) 134 CLR, at pp 281-282 :
"The symmetry of this scheme was imperfect. It was marred by the
provision that at least five members of the House of Representatives
shall be
chosen in each original State. Thus, the number of members chosen from the
States was not, and is not now, strictly proportional
to their population.
Therefore, though an increase in the number of senators for each original
State would mean a proportionate
increase in the House of Representatives, it
would not necessarily result in a proportionate increase in each State.
Again it appears from s. 7 and s. 121 that the constitutional guarantee
of equal representation of States in the Senate and the minimum number of six
Senators for each
State is applicable only to original States and not to new
States.
Section 122 provides another exception. The task is to arrive at its
meaning. The language of s. 122 is extremely wide and the powers it confers
are plenary."
He examined other sections of the Constitution containing the word
"representation" and said (1975) 134 CLR, at p 283 :
"Thus, using the Constitution as a dictionary, the word 'representation'
in s. 122 plainly means 'membership' which accords with its ordinary meaning.
The plenary nature of the power in s. 122, including the power of the
Parliament to allow representation in each House to the extent and on the
terms which it thinks fit,
suggests that the Parliament may allow each
Territory to be represented by members; the number of members and the terms of
membership
are within its discretion." (at p576)
8. The validity and operation of s. 10 (a) of the Representation Act appears
to me to depend primarily on the true effect of that
decision. No application
was made to the Court to reopen that case and it must therefore govern this
matter. It appears to me that
the majority decision in that case involves the
conclusion that s. 7 is to be read substantially as if the first paragraph
began
with some such words as "Subject to any laws of the Commonwealth enacted
under s. 122, the Senate shall be composed of senators
for each State etc." or
as if it were followed by some proviso referring to s. 122. (at p576)
9. It follows from the reasoning in those judgments that senators elected pursuant to the Senate (Representation of Territories) Act 1973 are senators for all purposes, differing only from senators for each of the States in the period for which they are elected, and that the words in the last paragraph of s. 7 "The senators shall be chosen for a term of six years" are also to be read subject to any law made pursuant to s. 122. The senators elected under the 1973 Act are, as I read those judgments, amongst those of which the Senate is composed within the meaning of s. 7 as so read and that, save where otherwise expressly provided (e.g. in the last paragraph of s. 7), they are in an identical position with the senators for the States, and are senators properly so-called. (at p576)
10. In so far as s. 10 (a) of the Representation Act 1905-1973 now provides that senators for the Territories shall not be taken into consideration for the purpose of determining the number of members of the House of Representatives under s. 24 which provides that "the number of such members shall be, as nearly as practicable, twice the number of the Senators", it is in direct conflict with ss. 7 and 24 of the Constitution as read in the light of those judgments. The words "the number of the Senators" must in my opinion mean "the number of the Senators from time to time" in order to accommodate the power of the Parliament under s. 7 to "increase or diminish the number of senators for each State". However, that power can, in the light of the decision in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 , no longer be read as being the exclusive power to increase the number of senators of which the Senate is composed. I can see no basis upon which the Parliament can, consistently with the decision in Western Australia v. The Commonwealth exclude from the computation required by s. 24 of the Constitution those members of the Senate who have been held by this Court to be senators properly so-called and to be amongst the persons of which, now that the power under s. 122 has been exercised, the Senate is "composed". Accordingly, I am of opinion that in its present form s. 10 (a) is invalid. (at p577)
11. A further question arises from this conclusion. Section 10 (a) in its previous form was not invalid because it would then have operated upon whatever number of senators there might be from time to time, whether for the States or otherwise. If it had been originally enacted in its present form it would in my opinion have been invalid and the offending words not severable. However, its invalidity now flows from the amendment made by s. 5 of the Representation Act 1973 which substituted for the word "Senators", the words "Senators for the States". It is that substitution which is contrary to the Constitution as it is to be construed in the light of the decision in Western Australia v. The Commonwealth and s. 5 is therefore invalid and ineffective to amend s. 10 (a) of the Representation Act 1905-1964, which continues in operation in its old form cf. Federal Commissioner of Taxation v. Clyne (1958) [1958] HCA 10; 100 CLR 246 , especially per Dixon C.J. (1958) 100 CLR, at p 267 . (at p577)
12. In Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) [1975] HCA 53; 135 CLR 1 this Court dealt with a challenge to the validity of the provisions of the Commonwealth Electoral Act 1918-1975 in so far as it made provision for constituting electoral districts for the purpose of elections to the House of Representatives, and the provisions of the Representation Act 1905-1973. The questions relating to the Electoral Act which were there decided are not material for present purposes. Barwick C.J. took the view that the whole of the Representation Act was invalid but the other members of the Court dealt only with ss. 3, 4 and 12 (a). (at p577)
13. The Representation Act 1905-1973 is evidently to be regarded as an Act
within the powers given by s. 24 and s. 51 (xxxvi.) of the Constitution. The
latter provision gives to the Parliament legislative power to make laws with
respect to "matters in respect of which this
Constitution makes provision
until the Parliament otherwise provides" and as Barwick C.J. pointed out
(1975) 135 CLR, at p 27 :
"The question to ask, in order to determine the subject matter of the
legislative power, is in my opinion, what is the matter
in respect of which
the Constitution has made provision until the Parliament otherwise provides?
It seems to me that the answer to that question is that the matter in
respect
of which the Constitution so makes provision is the manner of determining the
number of members chosen in the several States in proportion to the respective
numbers of their people. There is no warrant, in my opinion, for the view that
the Parliament may alter the terms of the first
sentence of the second
paragraph of s. 24. The constitutional provision that the number of members
chosen in the several States shall be in proportion to the respective numbers
of people, whatever is the proper construction of those words, must stand and
it is not within the competence of the Parliament
to alter it. Further, the
final words of the first paragraph of s. 24 namely 'whenever necessary' is not
a matter which the Parliament may alter or decide."
He then said (1975) 135 CLR, at p 28 :
"The second paragraph of s. 24 provides for determining the number of
members to be chosen in the several States 'whenever necessary'. In my
opinion, this provision
does not commit to the Parliament to determine when it
is necessary to determine that number of members. If no valid law has been
passed by the Parliament otherwise providing, the quota will be employed to
determine the number of members chosen whenever it
is, in fact, necessary.
This Court must determine what that expression means and in the last resort
must decide the result of applying
that meaning to any given factual
situation".
Barwick C.J. also said (1975) 135 CLR, at p 30 :
"There is, clearly, no obligation on the Parliament 'otherwise to
provide'. But if the Parliament attempts otherwise to provide,
it must do so
by a law which is valid. Its validity will depend upon whether or not it is an
exercise of the legislative power
attracted by s. 51 (xxxvi.) and the terms of
s. 24 of the Constitution."
He concluded that because the Representation Act as it then stood made the
effectiveness of the determination of the number of
members to be chosen in
the several States and any
redistribution depend upon the census, it failed to
provide that there should
be a determination of the number of members in the
several States in proportion to their respective population because the
expression
"whenever it is necessary so to do" means in
time for an ordinary
general election of the House of Representatives. Accordingly,
he regarded ss.
3, 4 and 12 of the Representation Act and ss. 24 and 25 of the Electoral Act
as invalid as being not within the
power given by s. 51 (xxxvi.) and s. 24. He
concluded that the Representation Act as a whole was invalid as the remaining
sections
were dependent upon the invalid provision. (at p578)
14. McTiernan and Jacobs JJ. dealt only with s. 12. They were, however, of opinion that that section could not validly operate "in so far as by such an operation the number of members chosen in the several States would not be in proportion to the respective numbers of their people" (1975) 135 CLR, at p 41 . (at p579)
15. Gibbs J. regarded ss. 3 and 4 as invalid because their effect is to require a determination to be made only when the census is taken and not before every regular election. He regarded s. 12 (b) as valid but said that s. 12 (a) would have been valid if it "went on to provide a procedure, or if it operated in a context, which ensured that re-distribution would take place with all due diligence should the need for it become manifest as a result of the furnishing of a certificate under s. 6 of the Representation Act and of the determination under s. 9 that follows from it. However, the combined effect of s. 12 (a) of the Representation Act and ss. 24 and 25 of the Commonwealth Electoral Act is that no re-distribution need ever be made and that the determination might never take effect. For this reason, in my opinion, s. 12 (a) is invalid" (1975) 135 CLR, at p 53 . Stephen J. agreed with Gibbs J. with respect to provisions of the Representation Act. (at p579)
16. Other questions arise from the decision in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 when one comes to apply the formula in s. 24 of the Constitution to the distribution among the States of the numbers of members of the House of Representatives ascertained by multiplying the number of senators by two. This aspect concerns also the validity of s. 1A of the Act and it will be convenient to deal with that before proceeding to consider s. 10 (b). The words "the people of the Commonwealth" in the first paragraph of s. 24 are not included in the part of s. 24 as to which the Parliament may otherwise provide. The like words in sub-par. (i) of the second paragraph are within that part but could not be altered in a manner which conflicted with the earlier parts of s. 24. Moreover it is difficult to see how a wider power to affect or alter could be derived from s. 122 in this respect. To substitute a different figure for the "number of the people of the Commonwealth" in sub-par. (i) would not be within either aspect of s. 122. The fundamental requirement of the second paragraph of s. 24 is that the number of members chosen in the several States shall be in proportion to the respective number of their people. This requirement is not disturbed by using the total of the people of all States as the figure to be divided by double the number of senators, whether as a matter of construction, or as a matter of other legislative provision. (at p579)
17. It would be odd indeed if the words "the people of the Commonwealth" in the first paragraph had a different meaning from that in the second. Moreover the decision in Western Australia v. The Commonwealth appears to proceed on the basis that s. 122 would enable representation in the House of Representatives by persons not chosen by the people of a Territory, and consistently with that view those words in the first paragraph must be read as referring to the people of the States as a matter of construction. On that view s. 1A of the Act does not disturb what is already provided in s. 24 itself. Accordingly I regard s. 1A as valid. (at p580)
18. The next problem arises in this way. Paragraph (a) of s. 10 and sub-par. (i) of s. 24 require that the quota is to be ascertained by dividing the number of the people of the Commonwealth by twice the number of the senators. Then par. (b) requires the number of members to be chosen in each State to be determined by dividing the number of the people of the State by the quota. If contrary to all probabilities that process would produce six whole numbers that would exhaust the available number of members. If it did not, either the original adjustment contemplated by s. 24 for getting as near as practicable, or some valid substitute enacted by the Parliament, would produce a figure either equal of "as nealy as practicable" equal, to twice the number of senators. Thus prima facie the total of the members of which the House is composed will be used up by those chosen in the States. (at p580)
19. The Parliament has however enacted that there shall be representation of the Territories in the House of Representatives by persons who have all the powers, rights and privileges of members and who are therefore "members". Are such members additional members over and above the figure ascertained under s. 24 or is the number of members to be allocated among the States to be reduced? (at p580)
20. It will be seen that this problem arises whatever view one takes of the meaning of the expression "the number of senators" and "the people of the Commonwealth" in s. 24. (at p580)
21. Is one to conclude that s. 122 in enabling provision to be made for members of the House of Representatives representing Territories authorizes what is in effect a variation of the basic objective of s. 24 in fixing the number of members of the House and allocating them among the States? The reasoning in Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 requires the conclusion that the Parliament may provide members for Territories. There would appear to be two possible solutions. The first would be to use the process of s. 10, or of the second paragraph of s. 24 of the Constitution, without regard to the number of members for the Territories and having done so simply to add the number of members required under other legislation under s. 122 dealing with representation of the Territories. The alternative would be to let the number be fixed by the basic calculation under the first paragraph of s. 24 but to reduce that number by the number of "members for territories" and to use that reduced figure as the divisor in the calculationof the quota. This is left to implication by the Constitution, as it must be construed in the light of the decision in Western Australia v. The Commonwealth. (at p581)
22. The Parliament itself has not sought expressly to solve this problem and no solution appears to be available which does not do some violence to the language of s. 24 and to do it by implication rather than by some legislatively chosen course. (at p581)
23. In the end the question must depend on the proper construction of the Australian Capital Territories Representation (House of Representatives) Act 1973 and the Northern Territory Representation Act 1922-1968, and upon the extent of the power conferred by s. 122. Section 5 of the former Act provides that "The Representation of the Territory in the House of Representatives shall be by two members elected in accordance with the Act" and s. 3 of the latter Act provides that "The representation of the Northern Territory in the Parliament of the Commonwealth shall consist of one member of the House of Representatives elected in accordance with this Act". There are no other relevant provisions. Those Acts therefore leave this question to implication from the nature of the power under s. 122. In my view that power does not extend to the alteration of the operation of s. 24 in so far as the number of members to be chosen in the States is concerned. In so far as s. 122 authorizes representation of Territories by their having members of either House, it must be by providing for additional members over and above those provided for elsewhere in the Constitution, and not by reduction of the numbers ascertained by the proper application of ss. 7 and 24. In the result therefore s. 24 requires the ascertainment of the "target" figure of members to be chosen in the respective States by doubling the number for the time being of (all) senators. Representatives of Territories will thus be additional to the total arrived at under s. 24 and the Chief Electoral Officer will take no account of them in the course of the process required by the second paragraph of s. 24 or by the Representation Act. The legislation providing for members of the House to represent Territories must therefore be read in the light of those considerations as providing for additional members over and above those provided for in s. 24. (at p582)
24. I turn now to the attack on the validity of s. 10 (b) of the Act. I have had the advantage of reading the judgments of Gibbs J. and Stephen J. and on this point I agree with their conclusion that the Representation Act 1964 was invalid in so far as it attempted to amend s. 10 (b) of the Representation Act 1905-1938 and that s. 10 (b) remains valid and in force in the form in which it stood prior to 1964. (at p582)
25. There remains the question of the validity of ss. 6, 7, 8 and 9 of the Act, a point to which little argument was directed. The majority in McKinlay's Case [1975] HCA 53; (1975) 135 CLR 1 appear to have regarded them as valid, or at least as of such incidental operation that it was not necessary to decide their validity. By themselves they have little or no operative effect. In so far as they provide machinery provisions for giving effect to other sections, their operation will depend on the validity of those other sections. In the light of the previous decision I think that no declaration of invalidity should be made as to ss. 6, 7 and 8. Section 9 embodies a direction to the Chief Electoral Officer to proceed in accordance with a section which is on its face invalid, but since the source of that invalidity lies in attempted amendments which were ineffective, s. 9 must be treated as referring to a valid provision i.e.s. 10 as it stood prior to 1964 and as not being infected with invalidity by the invalid amendments in 1964 and 1973. (at p582)
26. In the light of the above reasons, I would answer the questions referred
by Gibbs J. to the Full Court as follows:
(i) Yes.of the Representation Act 1973 leaves the paragraph valid in its previous form. (at p582)
(ii) As to par. (a), No, not in its present form, but the invalidity of s. 5
27. As to par. (b), No, not in its present form, but the invalidity of s. 3
of the Representation Act 1964 leaves the paragraph
valid in its previous
form.
(iii) Yes.
(iv) No, see the answer to question 2 (b).
(v) In accordance with the answer to question 2 and question 4.
(vi) (a) No. (b) Yes. (at p582)
ORDER
The questions directed to be argued to be answered as follows:(i) Whether s. 1A of the Representation Act 1905-1973 is a valid law of the Parliament?
Answer: Unnecessary to answer.
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