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Published online by Cambridge University Press: 24 January 2025
Through an examination of the relevant authorities, including American and Australian cases, Mr Lindell comments on the justiciability of, and nature of the duty imposed on the legislature by, sections 24 and 29 of the Commonwealth Constitution. The main conclusion is that if the House of Representatives did not conform with the constitutional requirements concerning the number of members to be chosen from each State and electoral redistribution, the House may no longer legally exist. The High Court would naturally be reluctant to reach such a conclusion without first providing the opportunity for defects to be rectified and Mr Lindell suggests that measures could be adopted by the Court which would enforce compliance with the relevant provisions without invalidating previous actions of the Parliament. Mr Lindell also deals with the related issues of locus standi and jurisdiction, concluding than an action could lie in the High Court to enforce compliance with the relevant constitutional and other provisions concerning the composition of the House of Representatives.
The views in this article are expressed as the personal views of the author, and are not necessarily those of the Department.
1 This article is based on a chapter of the author's thesis, “Justiciability of Political Questions under the Australian and United States Constitutions” which was presented for the Degree of Master of Laws in the University of Adelaide. For other writing on the subject dealt with in this article, Lane, “Note on Commonwealth Electors' Constitutional Voting Rights” (1968) 42 A.L.J. 139Google Scholar; Paterson, “Federal Electorates and Proportionate Distribution” (1968) 42 A.L.J. 127Google Scholar, and Else Mitchell, (ed.), Essays on the Australian Constitution (2nd ed. 1961) Ch.IIGoogle Scholar, “The Parliament of the Commonwealth” by F. R. Beasley.
2 The powers and duties previously performed by the “Chief Electoral Officer of the Commonwealth” are now performed by the above-mentioned officer: Australian Electoral Office Act 1973, s. 5 (Cth).
3 Ss. 2, 3, 4.
4 Ss. 6, 7.
5 Ss. 9, 10, 11.
6 S. 12.
7 The source of constitutional authority to pass the statutory provisions is to be found in s. 51(xxxvi) of the Constitution read in conjunction with s. 29.
8 S. 15.
9 In the provisions of Part III of the Commonwealth Electoral Act the term “Governor-General” means the Governor-General acting with the advice of the Executive Council: Acts Interpretation Act 1901-1973, s. 16A (Cth).
10 S 25.
11 S. 16.
12 S. 19. In 1973 the Federal Government introduced in the Commonwealth Parliament legislation designed to reduce the allowable margin to one tenth less or one tenth more than the quota. The legislation in question, namely, the Commonwealth Electoral Bill (No. 2) 1973, was twice rejected by the Senate and formed one of the grounds of the double dissolution of Parliament granted by the Governor-General on 11 April 1974. The Bill has now been passed by a joint sitting of both Houses of Parliament in accordance with the special deadlock procedure set out in section 57 of the Commonwealth Constitution.
13 S. 24.
14 S. 24.
15 Wesberry v. Sanders (1964) 376 U.S. 1, 8; 11 L.Ed. 2d 481, 486-487.
16 One of the proposals to amend the Commonwealth Constitution which was defeated at the referendums held on 18 May 1974 sought to expressly provide for equality of electoral divisions. The proposal, known as the Constitution Alteration (Democratic Elections) 1974 sought to deal with the electoral divisions of the State legislatures, as well as those of the House of Representatives: clauses 4 and 7.
17 Paterson, op. cit 130, 131 and generally Sawer, Australian Federal Politics and Law 1929-1949 (1963) 63, 64, 65, and H.R.Deb. Vol. 144, 193 (4 July 1934).
18 Id. 204.
19 Ibid.
20 Ibid.
21 Sawer, op. cit. 63, 64.
22 The observations made by Isaacs J. in Vardon v. O'Loghlin (1907) 5 C.L.R. 201, 212-216 and Barton A-C.J. in Buchanan v. The Commonwealth (1913) 16 C.L.R. 315, 327-328, were of a purely incidental character, not specifically related to the issue here under consideration.
23 Cases involving electoral redistribution are McDonald v. Cain [1953] V.L.R. 411 and Tonkin v. Brand [1962] W.A.R. 2. There are also the cases where the High Court dealt with the abolition of State Upper Houses: Taylor v. Attorney-General of Queensland (1917) 23 C.L.R. 457; Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394 and Clayton v. Heffron (1960) 105 C.L.R. 214.
24 Attorney-General for the Province of Prince Edward Island v. Attorney-General for Canada [1905] A.C. 37 and Attorney-General for Nova Scotia v. Legislative Council of Nova Scotia [1928] A.C. 107. The former case is of particular interest because it involved the interpretation of provisions in the British North America Act which are similar to those of s. 24 of the Common-wealth Constitution. However both cases were decided pursuant to legislation which permits Canadian Courts to give advisory opinions without regard to the rules relating to locus standi: Strayer, Judicial Review of Legislation in Canada (1968) 111-113CrossRefGoogle Scholar. In Australia it has of course been held that the High Court cannot be vested with jurisdiction to give advisory opinions: In re Judiciary and Navigation Acts (1921) 29 C.L.R. 257.
25 In Katikiro of Buganda v. Attorney-General [1961) 1 W.L.R. 119 the Privy Council dealt with the composition of the Legislative Council of Uganda and in Harris v. The Minister of the Interior 1952(2) S.A. 428 [A.D.] Sub. nom. Harris v. Donges [1952] T.L.R. 1245 the Supreme Court of South Africa dealt with the composition of a sovereign legislative body in the sense that it was, in effect, determining what constituted the body having the power to pass laws in South Africa for two distinct purposes, namely laws for dealing with the representation of Cape Coloured Voters and laws for dealing with any other matters. In Gladys Petrie v. Attorney-General (1968) 14 W.I.R. 292 it was held that because of certain provisions in the Constitution of Guyana the High Court did not have jurisdiction to entertain certain questions relating to elections for the Guyana National Assembly except by way of election petitions taken out in the Court after the result of the elections were known.
26 Infra p. 93.
27 [1962) W.A.R. 2.
28 The case had some novel procedural aspects. In The King v. Governor of South Australia (1907) 4 C.L.R. 1497 the High Court made it clear that mandamus does not lie against a Governor of a State. However, the Governor of Western Australia was not cited as a defendant in the case and the only relief sought was a declaration against the defendants who were Ministers of the Crown and members of the Executive Council. The declaration granted by the Court was that the defendants were under a legal duty to advise and consent to the Governor issuing a Proclamation under s. 12 of the Electoral Districts Act, 1947-1955 for the purpose of setting in motion the machinery for a redistribution.
29 [1955) 1 Ch. 238.
30 Id. 251.
31 Marshall, and Moodie, Some Problems of the Constitution (4th ed. 1967) 81-89Google Scholar.
32 In The Queen v. Secretary of State for the Home Department; Ex parte McWhirter[1969] C.L.Y. 2636 it was asserted that the Home Secretary was under a legal obligation to table the report of the Boundary Commission in Parliament. However, the Court did not determine whether the House of Commons (Redistribution of Seats) Act, 1949 gave rise to the legal obligation asserted by the plaintiff because the action was dismissed with the consent of both parties after an undertaking to table the report was given, even though the existence of the legal obligation was denied by the Home Secretary.
33 (1962) 369 U.S. 186; 7 L.Ed. 2d 663. The case was a landmark in American constitutional law since it departed from earlier decisions that had held that matters of this kind were “political” and non-justiciable.
34 In the case of the House of Representatives the requirement is based on Article 1 Section 2 clause 1 of the United States Constitution while in the case of State legislatures it is based on the “Equal Protection Clause” of the Fourteenth Amendment of the same Constitution: Gray v. Sanders (1963) 372 U.S. 368; 9 L.Ed. 2d 821 (State); Wesberry v. Sanders (1964) 376 U.S. 1; 11 L.Ed. 2d 481 (Congressional); since these cases were decided there have been a number of other cases decided by the Supreme Court which have applied and elaborated the requirement: e.g. Kirkpatrick v. Preisler (1969) 394 U.S. 526; 22 L.Ed. 2d 519 (Congressional) and Mahan v. Powell (1972) 35 L.Ed. 2d 320 (State). As was made clear in the latter case a stricter test of equality is applied for the reapportionment of Congressional districts than that applied for the reapportionment of electoral districts of State legislatures.
35 E.g. Reynolds v. Sims (1964) 377 U.S. 533, 585-587; 12 L.Ed. 2d 506, 541-542; W.M.C.A., Inc. v. Lomenzo (1964) 377 U.S. 633, 654-655; 12 L.Ed. 2d 568,581; Davis v. Mann (1964) 377 U.S. 678, 692-693; 12 L.Ed. 2d 609; 618-619; Roman v. Sincock (1964) 377 U.S. 695, 710-712; 12 L.Ed. 2d 620, 630-631; Lucas v. Colorado General Assembly (1964) 377 U.S. 713, 739; 12 L.Ed. 2d 632, 649.
36 E.g. Scott v. Germano (1966) 381 U.S. 407; 14 L.Ed. 2d 477; Parsons v. Buckley (1965) 379 U.S. 359; 13 L.Ed. 2d 352; Burns v. Richardson (1966) 384 U.S. 73; 16 L.Ed. 2d 376; also note in (1966) 79 Harvard Law Review 1226, 1226-1229 on remedies generally.
37 [1955] N.Z.L.R. 271 and see the note of this case entitled “Annulment of a General Election” (1955) 18 M.L.R. 495. The same reluctance in relation to the existence of lawful authority in general is evident in the cases cited by the Supreme Court in Baker v. Carr (1962) 369 U.S. 186, 223-225; 7 L.Ed. 2d 663, 689-690; which dealt with the effect of a failure to comply with the guarantee of a “Republican Form of Government” contained in Article IV Section 4 of the United States Constitution.
38 [1917] A.C. 170.
39 It is significant to note that the proposed Constitution Alteration (Democratic Elections) 1974 referred to in n. 16 supra included provisions designed to ensure that the High Court would have jurisdiction to deal with matters arising under sections 24 and 29 of the Constitution and the same provisions also sought to ensure that an elector of the Commonwealth would have sufficient standing to invoke this jurisdiction: clause 6.
40 Diplock L.J. in Buck v. Attorney-General [1965] Ch. 745, 770 citing Garth-waite v. Garthwaite [1964] P. 356, 387.
41 Infra pp. 97-99.
42 S. 47 reads as follows:
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
But see Gladys Petrie v. Attorney-General (1968) 14 W.I.R. 292 where the contrary view may have been taken by the High Court of Guyana. It was held in that case that provisions in the Constitution of Guyana, which were not unlike those of the foregoing, had the effect of depriving the Court of jurisdiction to deal with challenges to the validity of the Acts of Parliament and regulations which dealt with elections and electoral divisions, where the judicial relief sought was to prevent elections for the National Assembly of Guyana from being held. However, the constitutional provisions were not identical with those of section 47 of the Commonwealth Constitution and in any event it seems to have been assumed that the provisions allowed the Court to entertain such challenges by way of election petitions lodged after the elections were held.
43 The relevant provisions are to be found in Article I Section 5 clause 1. Rutledge J. in Colegrove v. Green (1945) 328 U.S. 549, 564; 90 L.Ed. 1432, 1442.
44 (1907) 4 C.L.R. 1497.
45 As a result of the decision the Disputed Elections and Qualifications Act 1907 (Cth) was passed and the question of the vacancy was subsequently resolved by the High Court in the case of Vardon v. O'Loghlin (1907) 5 C.L.R. 201. See now Commonwealth Electoral Act 1918-1973, ss. 183(2), 203 (Cth).
46 [1953] V.L.R. 411.
47 The case was decided on grounds that were not relevant to the issues discussed in this article except in so far as they relate to locus standi.
48 Id. 420 per Gavan Duffy J., 427 per Martin J. and 438-439 per O'Bryan J.
49 Supra n. 27.
50 Supra p. 91.
51 [1962] W.A.R. 2, 14-15.
52 Id. 21.
53 Id. 19.
54 This writer is not persuaded by the criticism of the decision in Tonkin v. Brand made in the note by Beasley, “A Constitutional Extravaganza” (1962) 5 University of Western Australia Law Review 591Google Scholar.
55 E.g. The Commonwealth v. Australian Commonwealth Shipping Board (1926) 39 C.L.R. 1.
56 De Smith, Judicial Review of Administrative Action (2nd ed. 1968) 446-451Google Scholar for the discussion of the Crown's special interest in matters arising out of the exercise of the equitable jurisdiction of the courts. It appears that “Certiorari issues as of course when applied for by the Attorney-General”, id. 432 and that he also had standing to apply for the writ of Quo Warranto to challenge the usurpation of a public office, id. 479. The view is expressed by the same learned author that:
On principle it would seem that the Attorney-General should be able to obtain a mandatory injunction ex proprio motu or in a relator action to secure the performance of a public duty in a case where an application for mandamus might have been brought … Id. 458.
However there appears to be no discussion about his standing to apply for mandamus in either this work or the exhaustive article by Thio, “Locus Standi in relation to Mandamus” [1966] Public Law 133.
57 Wynes, , Legislative, Executive and Judicial Powers in Australia (4th ed. 1970) 419-420Google Scholar.
58 lnfra p. 104.
59 (1953) 88 C.L.R. 158, 161, 163.
60 Faussett v. Carol (1917) 15 W.N. (N.S.W.) No. 12 Cover Note (14th August 1917) and Morrison v. Thwaites (1969) 43 A.L.J.R. 452 (note of unreported decision) for the procedural means by which the High Court has sought to discourage litigants from invoking this jurisdiction.
61 Cowen, Federal Jurisdiction in Australia (1959) 68-73Google Scholar; Barwick, “The Australian Judicial System: The Proposed New Federal Court” (1964) 1 F.L. Rev. 1, 9-15Google Scholar; Sawer, Australian Federalism in the Courts (1967) 39Google Scholar; Howard, Australian Federal Constitutional Law (2nd ed. 1972) 193-197Google Scholar. Although the question was not discussed in Quick, and Garran, , The Annotated Constitution of the Australian Commonwealth (1901)Google Scholar there are passages in the book which suggest that the authors assumed the existence of the duty of the High Court to exercise its jurisdiction, id. 784, 791.
62 Dicta in Ashby v. White (1703) 2 Ld.Raym. 938, 953; 92 E.R. 126, 137-138; Ex part Mylecharane (1898) 19 N.S.W.L.R. 7; The Queen v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (1960) 103 C.L.R. 368, 378, 382; The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 C.L.R. 389, 398. The view expressed in the text seems to have the support of Professors Cowen and Sawer and also, perhaps, Quick and Garran. In the United States, the remarks of Marshall C.J. in Cohens v. Virginia (1821) 6 Wheat 264, 404, 5 L.Ed. 257, 291 are usually referred to as supporting the view that the Supreme Court is under an obligation to exercise its jurisdiction, in the absence of express provision to the contrary. At the same time Judge Learned Hand has argued that the function of judicial review is essentially discretionary in nature: The Bill of Rights (1958) Ch.2 Cf. Wechsler, “Towards Neutral Principles of Constitutional Law” (1959) 73 Harvard Law Review 1CrossRefGoogle Scholar who disagreed with that view.
63 Halsbury's Laws of England (3rd ed.) xi, 96 cases cited in note (y) and xxv, 320 cases cited in note (c). Also Ah Yick v. Lehmert (1905) 2 C.L.R. 593.
64 However Lane, “Judicial Review or Government by the High Court” (1966) 5 Sydney Law Review 203, 203-208Google Scholar stated that he was unable to find a constitutional basis for the doctrine of judicial review, also Sawer, op. cit. 76, n. 61. A further discussion of Lane's views appears in his book, The Australian Federal System with United States Analogues (1972) 914-919. Space does not permit a full examination of the issues in this article.
65 lnfra p. 105.
66 Supra p. 89.
67 In fact it appears that early in the history of the Commonwealth one government sought to take the necessary steps itself without Parliamentary action or approval. Paterson, “Federal Electorates and Proportionate Distribution” (1968) 42 A.L.J. 127, 128Google Scholar.
68 Supra p. 86.
69 (1940) 63 C.L.R. 209, 226-227.
70 Supra n. 35. Also Kilgarlin v. Hill (1967) 386 U.S. 120; 17 L.Ed. 2d 771 and Connor v. Williams (1972) 404 U.S. 549; 30 L.Ed. 2d 704. In both of these cases the Supreme Court assumed the validity of elections even though the electoral districts may not have been validly apportioned.
71 Paterson, op. cit. 132-133.