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Attorney-General for Australia (at the Relation of McKinlay) and others v. the Commonwealth and Others

Published online by Cambridge University Press:  24 January 2025

Allan Murray-Jones
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Type
Case Notes
Information
Federal Law Review , Volume 7 , Issue 2 , June 1976 , pp. 242 - 253
Copyright
Copyright © 1976 The Australian National University

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Footnotes

1

(1975) 7 A.L.R. 593. High Court of Australia; Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

References

2 The Commonwealth v. Australian Commonwealth Shipping Board (1926) 39 C.L.R. 1.

3 (1703) 2 Ld. Raym. 938, 92 E.R. 126.

4 [1953] V.L.R. 411, 420 per Gavan Duffy J., 427 per Martin J., 438-439 per O'Bryan J.

5 [1962] W.A.R. 2, 14 per Wolff C.J., 19 per Jackson S.P.J., 21 per Hale J.

6 This is pointed out by Beasley, “A Constitutional Extravaganza” (1962) 5 University of Western Australia Law Review 591, 601.Google Scholar

7 Lindell, “Judicial Review and the Composition of the House of Representatives” (1974) 6 F.L. Rev. 84.Google Scholar

8 (1975) 7 A.LR. 593, 648.

9 Id. 607.

10 (1965) 112 C.L.R. 177, 188 per Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

11 (1932) 47 C.L.R. 50.

12 (1963) 114 C.L.R. 582. See also British Medical Association v. The Commonwealth (1949) 79 C.L.R. 201; Attorney-General for N.S.W. v. Brewery Employees Union of N.S.W. (1908) 6 C.L.R. 469; and note by Lane, (1968) 42A.L.J. 139.

13 (1975) 7 A.L.R. 593, 620-621.

14 In Campbell, “Suits between the Governments of a Federation” (1971) 6 Sydney Law Review 309Google Scholar, the learned author says, with understatement, “The terms “justiciable” and “non-justiciable” are not terms of art.”

15 (1975) 7 A.L.R. 593, 636.

16 (1964) 376 U.S. 1. See also Wells v. Rockefeller (1969) 394 U.S. 542; Kirk-patrick v. Preisler (1969) 394 U.S. 526 and White v. Weiser (1973) 412 U.S. 783. These cases were all preceded by Baker v. Carr (1962) 369 U.S. 186 which dealt only with the distribution in one State for the State legislature.

17 (1975) 7 A.L.R. 593, 600.

18 Id. 601.

19 Id. 602.

20 Ibid.

21 Id. 603.

22 Id. 606. Evidently, in the light of his earlier comments he is referring toss. 29-31 of the Constitution.

23 Article 1, Section 4, Clause 1 provides that “The Times Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of Chusing Senators.”

24 (1975) 7 A.L.R. 593, 605-606.

25 (1906) 4 C.L.R. 356, 358-359.

26 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 C.L.R. 129, 146. Both of these cases rely on the mystique of “responsible government” for the basis of a distinction between the U.S. and the Australian constitutions.

27 (1975) 7 A.L.R. 593, 606.

28 Id. 607.

29 Id. 615.

30 Id. 616.

31 Ibid.

32 Id. 633 per Stephen J., 636 per Mason J.

33 Id. 617.

34 Ibid.

35 This is the assumption upon which Lindell proceeds, op. cit. 104-106.

36 (1975) 7 A.L.R. 593, 618.

37 The Fourteenth Amendment is divided into five parts, the last three of which are obviously not relevant. Section 1, aimed at the States, deals with citizenship, privileges and immunities, due process and equal protection. Section 2 deals with the apportionment of Representatives between the States. The amendment was a post Civil War measure connected with the abolition of slavery and ensuring that the States gave their citizens equal rights. Section 2 reflected the decision to count former slaves as members of the population in the distribution of seats between States.

38 (1964) 376 U.S. 1, 20-49; cited at (1975) 7 A.L.R. 593, 624.

39 In many ways this is best pointed out in the powerful dissent of Frankfurter J. in Baker v. Carr (1962) 369 U.S. 186, 302-318.

40 (1975) 7 A.L.R. 593, 625.

41 Id. 643.

42 Id. 644-645.

43 The issues raised here were discussed by Paterson, in “Federal Electorates and Proportionate Distribution” (1968) 42 A.L.J. 127Google Scholar. At 133 he predicted that “[t]he quinquennial census may be the harbinger of serious constitutional headaches for the Commonwealth Parliament in the years ahead”.

44 Representation Act, s. 4.

45 S. 12(a).

46 Electoral Act, s. 25(1).

47 S. 25(2).

48 (1975) 7 A.L.R. 593, 626.

49 Id. 628.

50 Id. 629.

51 Ibid.

52 Ibid.

53 Id. 629-630.

54 Id. 608.

55 Id. 609-610. He appears to have relied on section 61 of the Constitution (the executive power) to support this conclusion.

56 Id. 619.

57 Apparently an unsuccessful attempt was made to amend the pleadings to allege an actual breach: see (1976) 50 A.L.J. 185, 188.

58 Id. 620.

59 Id. 650.