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Published online by Cambridge University Press: 24 January 2025
McGinty v Western Australia is a significant indicator of present and prospective attitudes of the High Court to major issues of representative democracy, such as electoral representation and equality. In affirming by a majority that substantial numerical voter inequality in Western Australian state electorates did not infringe a concept of representative democracy in either the Commonwealth or the Western Australian constitutions, the court went beyond a refusal to overturn AG (Cth); Ex Rel McKinlay v Commonwealth of more than twenty years earlier.
In McKinlay, a voter had sought a declaration that s 19 of the Commonwealth Electoral Act 1918 (Cth), which permitted a variation of 10 per cent of the number of electors above or below the quota for a state's seats in the House of Representatives, was invalid on the grounds that it offended the first paragraph of s 24 of the Commonwealth Constitution. The High Courts held that s 24 did not require that the number of people or the number of electors in electoral divisions be equal. In other words, it was found that the Commonwealth Constitution did not mandate a principle of one vote, one value.
I would like to thank George Williams of the Law Program, Research School of Social Sciences, Australian National University and John McMillan and Nick Seddon of the Faculty of Law, Australian National University, for their comments on a draft of this paper.
1 (1996) 134 ALR 289. See also (1996) 186 CLR 140. [Editor's note: it was not possible to change the numerous references in this Comment to the authorised CLR report.]
2 Brennan CJ, Dawson, McHugh and Gummow JJ; Toohey and Gaudron JJ dissented.
3 (1975) 135 CLR 1.
4 “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators”.
5 Barwick CJ, McTiernan, Gibbs, Stephen, Mason and Jacobs JJ; Murphy J dissented.
6 InMcKinlay, the outer limits beyond which the exercise of a vote was no longer an act of direct choice by the people were canvassed. McTiernan and Jacobs JJ stated that “At some point choice by electors could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree. It cannot be determined in the abstract. It depends in part upon the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth”: (1975) 135 CLR 1 at 36; Stephen J described representative democracy as “descriptive ofa whole spectrum of political institutions ... The spectrum has finite limits and in a particular instance there may be absent some quality which is regarded as so essential to representative democracy as to place that instance outside those limits altogether”: ibid at 57; and Mason J thought “It is perhaps conceivable that variations in numbers of electors or people in single member electorates could become so grossly disproportionate as to raise a question whether an election held on boundaries so drawn would produce a House of Representatives composed of members chosen directly by the people of the Commonwealth.”: ibid at 61.
7 (1996) 134 ALR 400. The decisions in Langer and McGinty were both handed down on 20th February 1996.
8 Cf Goldsworthy, J, “Implications in Language, Law and the Constitution” in G Lindell (ed), Future Directions in Australian Constitutional Law at 170-182Google Scholar; Kirk, J, “Constitutional Implications From Representative Democracy” (1995) 23 FL Rev 37 at 66Google Scholar.
9 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1;Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106;Theophanous v Herald and Weekly Times Ltd and Another (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Cunliffe and Another v Commonwealth (1994) 182 CLR 272.
10 This is particularly so in the High Court's denial of further constitutional implications founded upon representative democracy. McHugh J cites the opinion of “the overwhelming majority of lawyers” and the role of the judiciary as factors supporting opposition to the development of the implied freedomof political communication to date: (1996) 134 ALR 289 at 348.
11 This accelerated movement away from a predominantly literalist approach to constitutional interpretation enunciated in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 is discussed by Zines, L, The High Court And The Constitution (4th ed 1997) esp 424-432Google Scholar and 444-449. See also Williams, G, “Civil Liberties and The Constitution Question of Interpretation” (1994) 5 PLR 82 at 86-88Google Scholar and 96-101 and Williams, G, “Engineers is Dead, Long Live the Engineers” (1995) 17 Syd LR 62 at 85-86Google Scholar.
12 Such an exercise had always been contemplated as necessary in the implied freedom of political communication cases: see Brennan, J in Australian Capital Television v Commonwealth (1992) 1771 CLR 106 at 150Google Scholar; Mason, CJ, Toohey, and Gaudron, JJ in Theophanous v Herald and Weekly Times (1994) 182 CLR 104 at 123Google Scholar and Deane, Jin Cunliffe v Commonwealth (1994) 182 CLR 272 at 337Google Scholar.
13 Cf Zines, L, “A Judicially Created Bill Of Rights?” (1994) 16 Syd LR 166 at 175-178Google Scholar; Toohey, J, “A Government of Laws, and Not of Men?” (1993) 4 PLR 158 at 169-174Google Scholar; J Kirk, above n 8 at 43-44 and 49-50.
14 Electoral Districts Act 1947 (WA), s 6(l)(a) ands 6(l)(b).
15 Electoral Districts Act 1947 (WA), s 6(2).
16 (1996) 134 ALR 289 at 292 per Brennan CJ.
17 At pages 33-34 of the High Court transcript (Matter no. P44 of 1993) Mr D Bennett QC, appearing for the plaintiffs, advised the court of a letter updating the electoral material indicating that the Wanneroo electorate now had 35,529 electors and the Ashburton electorate now had 8,587 electors. The difference between these two electorates, formerly 291 per cent, was now 414 per cent.
18 See the judgment of Brennan CJ (1996) 134 ALR 289 at 293.
19 Per McHugh J ibid at 340.
20 Emphasis added.
21 Sections 2A(2), 6 and 9.
22 (1996) 134 ALR 289 at 312.
23 Ibid at 293-294.
24 Ibid at 293.
25 Ibid.
26 (1975) 135 CLR 1.
27 (1996) 134 ALR 289 at 294.
28 Ibid.
29 Ibid at 303 per Brennan CJ, at 311 per Dawson J, at 363 per McHugh J and at 399 per GummowJ.
30 (1975) 135 CLR 1.
31 The dissentients Toohey and Gaudron JJ also found it unnecessary to overrule McKinlay. For a discussion of the approach of Toohey and Gaudron JJ on this point, see the section of this paper “The McKinlay exceptions: setting the boundaries of representative democracy”, below.
32 These aspects are discussed in the section of this paper “Government, democracy and representation: a choice of meanings: A broadening of McKinlay by the majority?”, below.
33 (1996) 134 ALR 289 at 332 per Toohey J.
34 Ibid at 339 per Gaudron J.
35 (1992) 177 CLR 1.
36 (1992) 177 CLR 106.
37 In Nationwide News Brennan and Gaudron JJ in separate judgments and Deane and Toohey JJ in a joint judgment founds 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) (which made it an offence for any person to use words calculated to bring a member of the Industrial Relations Commission, or the Commission, into disrepute), invalid as infringing the implied freedom of political communication. In separate judgments, Mason CJ, Dawson and McHugh JJ found the provisioninvalid as it could not be supported by the conciliation and arbitration power (s 51 xxxv) or the incidentals power (s 51 xxxix). In Australian Capital Televisionv Commonwealth the political advertising ban imposed by Part 111D of the Broadcasting Act 1942 (Cth) was held to be invalid by Mason CJ, Deane Toohey and GaudronJJ as offending the implied freedom of political communication and by McHugh J as offending a more limited freedom applicable during elections. Brennan J whilst recognising the implied freedom of political communication, dissented, finding that the legislation was within the margin of appreciation allowable to Parliament. Dawson J dissented on the grounds that no general implied freedom of political communication could be derived from the Commonwealth Constitution.
38 Williams, G, “Engineers is Dead, Long Live the Engineers” (1995) 17 Syd LR 62Google Scholar at footnote 7.
39 “Although there is some variation in the language in which the subject of the implied freedom was expressed in those statements, we do not detect any substantial difference between 'political discussion' (Mason CJ) and 'political discourse' (Gaudron J) on the one hand and discussion of 'political matters' (Deane and Toohey JJ, Brennan J) on the other hand ... the scope of the freedom as expressed by Mason CJ and Gaudron J is no less extensive than that expressed by Brennan, Deane and Toohey JJ'': Theophanous v Herald and Weekly Times (1994) 182 CLR 104 at 121 per Mason CJ , Toohey and Gaudron JJ (parentheses added). McHugh J's description of the implication was recognised as the narrowest, confined to the conduct of federal elections: ibid. See Jin, Toohey Cunliffe v Commonwealth(1994) 182 CLR 272 at 379Google Scholar for a similar identification of the descriptions of the implied freedom of political communication.
40 Coper, M, “The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?” (1994) 16 Syd LR 185 at 187Google Scholar.
41 The implied freedom operates within and is subject to an existing system of law, meaning that the freedom will vary with the subject matter of the law and the boundaries of the freedom cannot be pre-determined: see for example Australian Capital Television (1992) 177 CLR 106 at 142 per Mason CJ and at 217 per Gaudron J; and Nationwide News (1992) 177 CLR 1 at 52 per Brennan J and at 75 per Deane and Toohey JJ.
42 (1994) 182 CLR 272 at 300 per Mason CJ, at 339-340 per Deane J, at 377-378 and 381-383 per Toohey J and at 387-389 per GaudronJ.
43 Australian Capital Television (1992) 177 CLR 106 at 137-138 per Mason CJ, at 210-211 per Gaudron J and at 229-231 per McHugh J. In Nationwide News (1992) 177 CLR 1 at 46-47 per BrennanJ.
44 Emphasis added.
45 Emphasis added.
46 Nationwide News v Wills (1992) 177 CLR 1 at 69-70. The other doctrines were the doctrine of the federal system and the doctrine of the separation of legislative, executive and judicial powers: ibid at 70.
47 (1992) 177 CLR 1 at 72. These were an “ability of represented and representatives to communicate information, needs, views, explanations and advice” and an ability of the people of the Commonwealth to communicate among themselves “information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf”.
48 Ibid at 73.
49 This matter will be examined in the section of this paper, “Constitutional implications: methodology and revision in McGinty”, below.
50 (1994) 182 CLR 104.
51 (1994) 182 CLR 211.
52 Mason CJ, Toohey and Gaudron JJ formed a joint judgment in both cases. Deane J wrote a separate judgment.
53 A defendant would be liable for damages unless he or she could establish that he or she (1)was unaware of the falsity of the statement (2) had not published recklessly and that (3) the publication was reasonable in the circumstances: (1994) 182 CLR 104 at 137.
54 G Williams, above n 38 at 62. The implied freedom is viewed as an immunity on power,marking out in appropriate circumstances an area protected from encroachment of the law. It is not conceived as a positive constitutional right, from which exceptions to the right are judicially created.
55 (1994) 182 CLR 104.
56 (1994) 182 CLR 211.
57 See Brennan J in Theophanous (1994) 182 CLR 104 at 153 and at 156-157 and in Stephens (1994) 182 CLR 211 at 235; Dawson J and McHugh J (on the assumption of a very limited implication relating to the requirement and conduct of Federal elections) at (1994) 182 CLR 104 at 192-193 and (1994) 182 CLR 211 at 258 per Dawson J and (1994) 182 CLR 104 at 204 and (1994) 182 CLR 211 at 259 per McHugh J.
58 (1994) 182 CLR 272.
59 Brennan, Dawson, Toohey and McHugh JJ; Mason CJ, Deane and Gaudron JJ dissented,.finding that the legislation unacceptably infringed the implied freedom of political discussion.
60 Brennan J found that the legislation created no interference with an implied freedom of communication of a political kind: (1994) 182 CLR 272 at 329-330. Dawson J found that the legislation did not offend any freedom to communicate incorporated within a system of representative government prescribed by the Constitution:ibid at 363-364. McHugh J found that the Constitution contained no guarantee of freedom of expression that invalidated the relevant section of the Act: ibid at 395. Toohey J also upheld the legislation,finding the restrictions imposed were not disproportionate to the constitutional power exercised, for having regard to the need to protect aliens and regulate the giving of migration assistance, there was no undue restriction imposed upon the implied freedom of political communication: ibid at 381.
61 For example, Theophanous v Herald and Weekly Times (1994) 182 CLR 104 at 149-150 and at 153 per Brennan J, at 190 and 193-194 per Dawson J and at 197-199 per McHugh J.
62 (1996) 134 ALR 289 at 295.
63 Ibid at 307. Brennan CJ had also indicated that structural implications must be logically or practically necessary: ibid at 295.
64 Ibid at 307-308.
65 Ibid at 344.
66 “[S]ince the people have agreed to be governed by a constitution enacted by a British statute, it is surely right to conclude that its meaning must be determined by the ordinary techniques of statutory interpretation and by no other means. It must therefore be interpreted ... according to the accepted principles of interpretation”: (1996) 134 ALR 289 at 344.
67 The Amalgamated Society of Engineers v The Adelaide Steamship Company Ltd and Another (1920) 28 CLR 129.
68 (1996) 134 ALR 289 at 345.
69 Ibid at 391.
70 Brennan CJ noted that the Court was divided as to the finding of an implication in Nationwide News and that the “implication was expressed in different terms in the several judgments”: (1996) 134 ALR 289 at 295; Dawson J observed that “[t]he wider views expressed by other members of the court were based upon the notion that the Constitution ordains representative government from which an implication of freedom of communication is to be drawn”, and then mentioned the various expressions of the scope, purpose and sources of the implied freedom of political communication: ibid at 305.
71 Dawson J expressed his difficulty with the line of reasoning of Mason CJ, Deane, Toohey and Gaudron JJ in the implied freedom of political communication cases: (1996) 134 ALR 289 at 305; McHugh J was of the opinion that the method employed in the implied freedoms cases represented “[t]op down reasoning” and that it was impermissible “to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution orare not necessary implications from its structure”: ibid at 345; Gummow J expressed agreement with McHugh J that there was a departure from accepted methods of constitutional interpretation in those cases: ibid at 391.
72 Dawson J commented that the reasoning of the majority in the implied freedom of political communication cases resulted in that freedom extending beyondwhat the Constitution provided for, but in any event, it could not extend to support the current submission of electoral equality: (1996) 134 ALR 289 at 306-307; McHugh Jcriticised, at length, what he perceived as the expanding and uncertain nature of the implication: ibid at 346-347.
73 Brennan CJ found that the implied freedom of political communication cases “were concerned with the freedom of communication required to allow 'the people' to perform their constitutional function of choosing their parliamentary representatives. None of the cases was concerned with equality of voting power”: (1996) 134 ALR 289 at 296-297; Dawson J held to the view “that no guarantee of freedom of communication, other than that required by the prescription ofelections, could be read into the Constitution as an implication of representative government”: ibid at 306; McHugh J alluded to the preTheophanous position where “the precise implication might have been thought to be that no government ... can legislate in a way that undermines or interferes with the system of representative government so far as the Constitution sets it up”: ibid at 346; Gummow J described the “important proposition” established by Australian Capital Television as being “that legislation otherwise within power will be invalid if it attacks the structure of the government of the Commonwealth by infringing in the requisite sense freedom of communication on matters relevant to political discussion”: ibid at 387.
74 Section 73 of the Constitution Act 1889 (WA) prescribed restrictive procedures for a bill which “expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than the members chosen directly by the people” (emphasis added).
75 This model emphasises the forms and structures of political participation, through adult enfranchisement and voting in periodical elections, renewing the institutional mandate of Parliament and Executive.
76 This model assumes periodic electoral choice as a starting point, but inherent in that choice is a assumption of proximate equality of voting power andflowing from that equality, a deliberative and consultative relationship between electors and the institutions of government.
77 The minimum requirement in the view of Dawson J was that the people be “governed by representatives elected in free elections by those eligible to vote”: (1996) 134 ALR 289 at 306; McHugh J did not see equal representation for equal numbers as an indispensable element of representative democracy: ibid at 359-360.
78 For example, ss 29 and 30 of the Commonwealth Constitution.
79 (1975) 135 CLR 1
80 See the references above inn 6. See also (1975) 135 CLR 1 at 19 and at 21 per Barwick CJ; at 44-45 per Gibbs J, and at 68-69 and at 70-75 per Murphy J.
81 (1996) 134 ALR 289 at 299 per Brennan CJ, at 308 per Dawson J, at 379 and at 382 per GummowJ.
82 These decisions included Wesberry v Saunders 376 US 1 (1964), Reynolds v Sims 377 US 533(1964), Kirkpatrick v Preisler 394 US 526 (1969) and White v Weiser 412 US 783 (1973).
83 (1996) 134 ALR 289 at 310 per Dawson J, at 343 per McHugh J, and at 374 per Gummow J.
84 Dawson J identified an “irreducible minimum requirement” of representative democracy as comprising three characteristics outlined in Stephen J's judgment in McKinlay: 134 ALR 289 at 306; beyond this the characteristics were imprecise: ibid and at 358 per McHugh J.
85 For example, McHugh J cited Mason J's comments in McKinlay of the limited nature of the quota utilised in s 24 as evidence of a lack of intention to prescribe equal electorates: 134 ALR 289 at 352; ibid at 379 per Gummow J.
86 Ibid at 294 per Brennan CJ.
87 See the section of this paper “Constitutional implications: methodology and revision”, above.
88 (1996) 134 ALR 289 at 294 per Brennan J, at 304-305, 306, 310 per Dawson J, at 357 per McHugh J and at 379 and 382 per Gummow J.
89 (1996) 134 ALR 289 at 296 per Brennan J, and at 377 per Gummow J.
90 Reference may be made to the statements of McTiernan and Jacobs JJ, Stephen J and Mason Jin McKinlay, extracted at n 6, above.
91 (1996) 134 ALR 289 at 311.
92 (1975) 135 CLR 1 at 57 where Stephen J described representative democracy as a spectrum with finite limits, and went on to say there could be an instance where there is absent a quality which is regarded as so essential to representative democracy as to place that instance outside of the limits altogether.
93 (1996) 134 ALR 289 at 358.
94 Ibid at 388.
95 Ibid at 388-389. The other member of the majority, Brennan CJ, failed to address the important issue of the McKinlay exceptions: ibid at 299-300. All of the majority judgments failed to enter upon a full exposition of the relevant exceptions in the manner of Gaudron J in her dissenting judgment: ibid at333-336.
96 See the section of this paper “The background”, above.
97 Especially ss 29 and 30 of the Commonwealth Constitution, which respectively enable the Parliament to prescribe the divisions for members of the House of Representatives and the qualifications of electors of members of the House of Representatives.
98 Both ss 29 and 30 of the Commonwealth Constitution commence with the words “Until the Parliament ... otherwise provides”.
99 (1996) 134 ALR 289 at 343.
100 Ibid at 360. Even allowing for the fact that McHugh J considers electoral equality as a potentially separate, distinct (and ultimately impermissible) implication compared to the implied freedom of political communication, his Honour's approach stands in marked contrast with the potentially expansive nature of implication deriving from ss 7 and 24 of the Commonwealth Constitution during elections as expressed by him in Australian Capital Television v Commonwealth. There it was his Honour's view that the people possess “the right to participate, the right to associate and the right to communicate” in respect of electoral activities: (1992) 177 CLR 106 at 232.
101 McHugh J had examined a series of other issues to support his major proposition that it was for Parliament to implement the system of representative government, and to rebut the suggestion that the court should make an implication of electoral equality. These issues comprised the differential value of referendum votes as indicating no equality of voting power: (1996) 134 ALR 289 at 349-351; thats 24 shows no more than that there must be interstate proportionality of the number of electorates, rather than equality of electoral divisions within a state: ibid at 351-352; the history of unequal electoral distributions before Federation, the wide disparities in the numerical size of State electorates and the diversity of franchises at Federation: ibid at 352-354; and the evolutionary tradition of what is conceived as a tenet of representative democracy in Australia as not yet requiring numerical equality of electorates: ibid at 356-360. Gummow J canvassed a number of similar issues in a lengthy judgment: ibid at 374-378, 381 and 385. Brennan CJ limited his examination of related sections of the Commonwealth Constitution to show that any implication of electoral equality from the text of those sections was confined to the Commonwealth, and did not extend to the states: ibid at 300; Dawson J saw a variety of sections of the Commonwealth Constitution as confirmation of the fact that beyond the minimum requirements of representative government, Parliament is left to establish the details of electoral systems: ibid at 306-307.
102 From the particular characteristics of these provisions, dealing respectively with the differential value of Senate votes in the various states, representation for new states and for the territories on such terms as the Parliament thinks fit, and the veto capacity of the voters in smaller states over larger states because of the dual majority requirements of a referendum, McHugh J arrived at a general inference that the Commonwealth Constitution does not support electoral equality.
103 (1996) 134 ALR 289 at 349-350.
104 See especially (1996) 134 ALR 289 at 344-348.
105 Even Deane and Toohey JJ, the two justices McHugh J most directly criticised for their approach to the implied freedom of political communication, conceded in Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 168: “The fact that the implication is drawn from an underlying doctrine of the Constitution rather than from any express term means, however, that the implication will itself be overridden to the extent that either the nature of a particular legislative power contained in s 51 or the words in which it is conferred manifest an intention to that effect”.
106 See the discussion at n 102, above.
107 Identified by McHugh Jin Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 232 as “rights of participation, association and communication”.
108 (1994) 182 CLR 104 at 202-203.
109 In the form of these other freedoms, but only during elections.
110 McHugh J commented that “Interpreting the Constitution is a difficult task at any time. It is not made easier by asking the justices of this court to determine what representative democracy requires. That is a political question and, unless the Constitution turns it into a constitutional question for the judiciary, it should be left to be answered by the people and their elected representatives acting within the limits of their powers as prescribed by the Constitution”: (1996) 134 ALR 289 at 348.
111 Ibid at 345. These methods of interpretation are characterised by ascertaining the language and literal meaning of the text: see G Williams, “Civil Liberties and the Constitution - A Question of Interpretation”, above n 11 at 87.
112 (1992) 177 CLR 106 at 231-232.
113 see above n 107
114 Through the use of ss 29 and 31 of the Commonwealth Constitution, “Until the Parliament otherwise provides”.
115 (1996) 134 ALR 400 at 424-425: McHugh J stated that the exclusion of women and propertyless persons from the franchise could no longer be consistent with the provision; and that whilst ss 29 and 31 of the Commonwealth Constitution confer a wide choice of electoral systems on the Parliament, “Not every system that enables 'the people' to elect their member results in those members being 'chosen by the people"'.
116 Unlike in McGinty, McHugh J acknowledges the limits of what may constitute representative government by citing an extract from the judgment of McTiernan and Jacobs JJ in McKinlay: ibid at 425.
117 Ibid.
118 McGinty (1996) 134 ALR 289 at 294 and 295-296 per Brennan CJ; at 305-306 per Dawson J; at 347, 348-349 and 355 per McHugh J.
119 Ibid at 295. See also at 305-306 per Dawson J; at 347-348 per McHugh J and at 382 per GummowJ.
120 See the section of this paper, “Constitutional implications: methodology and revision”, above.
121 See especially (1996) 134 ALR 289 at 305 per Dawson J and at 348 per McHugh J.
122 The phrase is used by Toohey J to describe the limits of equality sought in the plaintiffs' submission: ibid at 324.
123 McHugh J acknowledged that prior to the 1992 freedom of political communication cases, “[C]ertain powers were seen as implied in the Commonwealth from 'the very nature and existence of the Commonwealth as a political institution' and certain restraints on the Commonwealth or the States were seen as implied from the structure of the Constitution”: ibid at 346.
124 For example, the implied power to protect the Commonwealth polity was recognised only by Dixon J and Fullagar J in Australian Communist Party v Commonwealth, and then only because it was preferable to base such an aspect upon the legislative power, rather than the executive power, of the Commonwealth: (1951) 83 CLR 1 at 187-188 per Dixon J and at 259- 260 per Fullagar J.
125 (1996) 134 ALR 289 at 346. This differentiation by McHugh J of those implications protective of the Commonwealth polity and of State functions from implications founded upon the liberal-democratic character of the Commonwealth polity embedded in the Commonwealth Constitution strangely omitted an earlier example of the latter, R v Smithers Ex Parle Benson (1912) 16 CLR 99, dealing with freedom of movement and access to Commonwealth officials and records. Interestingly, McHugh J had previously cited R v Smithers Ex parte Benson as an example of a broader communication right, of which the rights conferred by sections 7 and 24 of the Commonwealth Constitution were but examples: see Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 232.
126 The secondary sources used by their Honours are chiefly to be found in the footnotes to the judgments in (1996) 134 ALR 289 at 349-358 per McHugh J and at 376-385 per Gummow J. The secondary sources used are neither necessarily exhaustive nor contemporary.
127 As referred to inn 126, above.
128 See the section of this paper “A broadening of McKinlay by the majority?”, above. See also above nn 93, 115 and 116.
129 Referred to in above n 128.
130 Ibid.
131 Through legislation pursuant to sections 29 and 31 of the Commonwealth Constitution.
132 (1996) 134 ALR 400 at 411.
133 Ibid at 306 per Dawson J and at 354 per McHugh J. In the preceding implied freedom of political communication cases, these justices defined the limits of an implication from sections 7 and 24: see Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 184 per Dawson J and at 231-232 per McHugh J; Theophanous v Herald and Weekly Times (1994) 182 CLR 104 at 190 per Dawson J and at 203 per McHugh J; Stephens v West Australian Newspapers (1994) 182 CLR 211 at 258 per Dawson J and at 259 per McHugh J; and Cunliffe v Commonwealth (1994) 182 CLR 272 at 361 per Dawson J and at 395 per McHughJ.
134 (1994) 182 CLR 211
135 Ibid at 232 per Mason CJ, Toohey and Gaudron JJ; ibid at 236 per Brennan J.
136 “The implication of freedom of communication in the Commonwealth Constitution ... was made as a matter of necessity in order to protect the efficacious working of the system of representative government mandated by the Constitution. The basis of that implication has its counterpart in the Constitution of WesternAustralia ... a freedom of communication must necessarily be implied in that Constitution, just as it is implied in the Commonwealth Constitution, in order to protect theefficacious working of representative democracy and government”: (1994) 182 CLR 211 at 232-234 per Mason CJ, Toohey and Gaudron JJ.
137 (1996) 134 ALR 289 at 301-303. See also at 311 per Dawson J, at 363 per McHugh J, and at 398 per Gummow J.
138 Ibid at 361-362, quoting in part Mason CJ, Toohey and Gaudron JJ in Stephens (1994) 182 CLR 211 at 233.
139 See also Brennan CJ (1996) 134 ALR 289 at 301, at 307 per Dawson J, at 392 per Gummow J.
140 See the section of this paper “Constitutional implications: methodology and revision”, above.
141 (1994) 182 CLR 104. See Theophanous v Herald And Weekly Times (1994) 182 CLR 104 at 122 where Mason CJ, Toohey and Gaudron JJ state “The interrelationship of Commonwealth and State powers and the interaction between the various tiers of government in Australia,the constant flow of political information, ideas and debate across the tiers of government and the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament make unrealistic any attempt to confine the freedom to matters relating to Commonwealth government”; andat 164 per DeaneJ.
142 Ibid at 232 per Mason CJ, Toohey and Gaudron JJ, and at 257 per Deane J.
143 For a description of the plaintiffs' submissions on these points see Brennan CJ (1996) 134 ALR 289 at 300-301. Sir Gerard identifies both the argument based on “the principle of representative democracy implied in the text and structure of the Commonwealth Constitution [informing] the federal 'organic unity of the Commonwealth and the States', as well as the argument based on the transfer of the principle of representative democracy via s 106 of the Commonwealth Constitution to state constitutions. Section 106 of the Commonwealth Constitution states that “The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State”.
144 This argument had been accepted in the joint judgment of Mason CJ, Toohey and Gaudron JJ in Stephens on the basis that as the WesternAustralian Constitution mandated a system of representative democracy by direct choice of the people, then as in the Commonwealth Constitution, freedom of communication was necessarily implied in the Western Australian Constitution to protect the efficacious working of democracy and government. In its application to Western Australia, the implied freedom of communication derived from both the Commonwealth Constitution and the State constitution: (1994) 182 CLR 211 at 232. See also at 257 per Deane J.
145 (1996) 134 ALR 289 at 300.
146 Ibid.
147 Ibid at 300-301. See also at 311 per Dawson J who, though concluding that the words of s 24 of the Commonwealth Constitution could support nothing more than direct popular elections, expressed broad agreement with the reasons of Brennan CJ. McHugh J, in affirming his view that the Commonwealth Constitution did not require equality in federal electoral divisions, found no ground for the Commonwealth Constitution requiring that state electoral divisions be equal. Significantly, McHugh J responded to the plaintiffs' submission by foreshadowing a possible future response of the newly constituted High Court: “[T]he logic of the reasoning in Theophanous and Stephens would seem to imply that the principle of representative democracy applies generally throughout the Constitution andcould require equality of electorate divisions for State elections... If the logic of Theophanous and Stephens requires this result, it provides the strongest ground for overruling those decisions as soon as possible”: ibid at 360. Gummow J approved the explanation of McHugh J on the matter of equality of electoral divisions, and found that as the process of arriving at an implication of freedom of political communication was suspect, the submission of the plaintiffs was unacceptable, and in any event, “the present case does not involve any such principle of freedom of political discussion”: ibid at 391- 392.
148 Toohey J concentrated upon the submission made by the plaintiffs that s 15 of the Commonwealth Constitution, which deals with casual Senate vacancies, “presupposes that the States will have a system which in a general way corresponds with the Commonwealth system. The Commonwealth argued that the section reflected the assumption that State parliaments are predicated on the same basis as the Commonwealth Parliament”: (1996)134 ALR 289 at 325. Toohey J rejected this linchpinof the argument, describing s 15 as a remedial provision: ibid; distinguished the present case, involving an implication of electoral equality in the Commonwealth Constitution from the earlier cases treating “the implied freedom of political discussion in the Australian Constitution as necessitating a similar freedom at State level”: ibid at 324; and confined his previous assumption made jointly in Nationwide News (1992) 177 CLR 1 at 75 with Deane J that “the Constitution's doctrine of representative government is structured upon an assumption of representative government in the States” as having arisen only in the contextof an implied freedom of political discussion: ibid. Gaudron J was in general agreement with the reasons of Toohey J, adding that the Constitution Act 1889 (WA) was decisive in this case, not the Commonwealth Constitution: ibid at 333.
149 (1996) 134 ALR 289 at 324.
150 Brennan J found that “[T]he constitutional prohibition against unnecessary restriction on the freedom of discussion that is conducive to the formation and exercise of political judgments limits the powers of the Parliament of a State (s 107) in conformity with the State's Constitution (s 106) to make such laws as it deems to be for the peace, order and good government of the State”: (1994) 182 CLR 104 at 156. However, Brennan J also constrained the reach of the implied freedom of political communication upon state defamation law by holding that “the Constitution deals not with the rights and liabilities of individuals inter se but with the structure and powers of organs of government... No implication from the text or structure of the Constitution is inconsistent with the availability of a cause of action in defamation to members of Parliament, candidates for election or public figures generally”: ibid at 153. See also Stephens (1994) 182 CLR 211 at 235.
151 Deane J saw the concurrent legislative powers of the States, continued by s 107 of the Commonwealth Constitution, but derived from the state constitutions, as “subjugated to the [Commonwealth] Constitution as a whole bys 106”, and thats 107 “must be read in the context of that subjugation”: ibid at 165. It followed that “the law of defamation in our various State jurisdictions ... cannot ... override the operation or effect of the Constitution's implication of freedom of political communication and discussion to which ... State laws and legislative powers are subjected.”: ibid at 178. See also Stephens (1994) 182 CLR 211 at 257.
152 (1996) 134 ALR 289 at 300
153 Ibid at 297
154 Ibid.
155 Ibid at 298.
156 Ibid at 300.
157 Dawson J expressed the same view in his own words: (1996) 134 ALR 289 at 311; McHugh J saw the issue as largely redundant as representative democracy under the Commonwealth Constitution does not require equal representation for equal divisions in federal electorates. It therefore followed that the Commonwealth Constitution imposed no such obligation in State elections: ibid at 360; Gummow J cited the different systems of government developed for the Commonwealth and the states and cautioned against the “automatic translation to the States, through the prism of s 106 of the Constitution, of representative government as established for the Commonwealth”: ibid at 375. His Honour, whilst declining to express any complete view as to the scope of s 106 of the Constitution, held there was nothing in the Commonwealth Constitution to bind the States to any particular stage in the development of representative government: ibid at 393.
158 Brennan CJ, Dawson, McHugh and Gummow JJ.
159 In the context of the laws consistent with the attainment of representative government in the states and the Commonwealth, and the division of legislative power within the Commonwealth: see Theophanous (1994) 182 CLR 104 at 156-157 per Brennan J, at 192-193 per Dawson J and at 196 and 201-202 per McHugh J. McHugh J also explicitly raised the issue of federal balance: ibid at 205.
160 (1996) 134 ALR 289 at 348. See also at 305 per Dawson J and at 391 per Gummow J.
161 Both justices issued a joint judgment with Mason CJ. On this point see (1994) 182 CLR 104 at 122 and 136.
162 Ibid at 232 and 234.
163 Toohey J found an underlying general requirement of equality of voting power in the Commonwealth Constitution: (1996) 134 ALR 289 at 323-324; Gaudron J found that the words “chosen by the people” in s 24 of the Commonwealth Constitution mandated a democratic electoral system, one which did not require complete or even practical equality of electorate size. Section 24 permitted a “distinction which is reasonably capable as being viewed as an appropriate and adapted means of taking account of geographic boundaries, community or minority interests or some other matter which bears on effective parliamentary representation”: ibidat 336-337.
164 (1996) 134 ALR 289 at 327-328. Gaudron J was of the view that, though s 106 of the Commonwealth Constitution operates to require that the states, as components of the federation, “be and remain essentially democratic” (from the text and structure of the Commonwealth Constitution), that requirement of democracy fell well short of the proposition advanced by the plaintiffs that the Commonwealth Constitution prescribed state electoral equality: ibid at 333.
165 Of the four majority judges, McHugh J mounts the most blunt attack upon what he perceives to be an incorrect methodology of the implied freedom of political communication, and the inapplicability of aspects of that methodology to resolve the current issues.
166 McHugh J addressed this issue by first responding to the plaintiffs' submission that whilst the connotation of the concept of representative democracy “may be constant in terms of the purposes, goals and objectives that it entailed for the future of the people of Australia... its denotation has been capable of adapting in an evolutionary way to new situations and standards in accordance with the growth of the Australian people”: (1996) 134 ALR 289 at 347 (emphasis added). His Honour's view, which informs the denial of popular sovereignty in the sense demonstrated inn 167 below, was that no implied principle of representative democracy could be deduced from the Commonwealth Constitution.
167 For example, see Theophanous (1994) 182 CLR 104 at 171, per Deane J: “The present legitimacy of the Constitution as the compact and highest law of our nation lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people”. See also Deane and Toohey JJ in Nationwide News v Wills (1992) 177 CLR 1 at 72: “[T]he central thesis of the doctrine is that the powers of government belong to, and are derived from, the governed, that is to say, the people of the Commonwealth”; cfLeeth v Commonwealth (1992) 174 CLR 455at 486 where their Honours discuss the conceptual basis of the Constitution as founded upon the free agreement of “the people”; in Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 137-138 per Mason CJ, and at 210-211 per Gaudron J; and J Toohey, above n 13 especially at 170.
168 (1996) 134 ALR 289 at 349. McHugh J perceived a qualitative limit on that sovereignty, as the Australian people do not possess a power of citizens-initiated constitutional change: ibid at 349 (footnote 323). See also at 343-344.
169 Cf G J Lindell, “Why is Australia's Constitution Binding? -The Reasons in 1900 and Now,and the Effect of Independence” (1986) 16 FL Rev 29, 37 and 49.
170 (1996) 134 ALR 289 at 344.
171 Ibid at 358.
172 Ibid at 344-345.
173 See the section of this paper “Representative democracy: A freestanding principle?”, above. McHugh J's definitive application of “ordinary principles of statutory interpretation” devitalises the aspect of “the people” in constitutional interpretation and produces a result consistent with that application.
174 Gummow J distinguished between the legal and political meanings of popular sovereignty. His Honour observed that the former can only be understood by the circumstances in which the various Australia Acts were enacted and the mechanism for their amendment., neither of which involved the participation of the people: (1996) 134 ALR 289 at 379.
175 Ibid at 322.
176 This differentiation of “political questions” creates a highly artificial aspect when used as an interpretative device to eschew a judicial function in determining the broad boundaries of representative democracy. For a refreshingly candid approach by the High Court's most recent appointee to the inescapable political nature of constitutional interpretation, see “Mr Justice Kirby - Life After the Court of Appeal!” NSW Bar Association Bar News Winter 1996 5 at 9.
177 This approach emerges in different forms in the judgments. Dawson J considered that the “matter of electoral systems, and the size of electoral divisions, and indeed whether to have divisional representation at all is left to the parliament”: (1996) 134 ALR 289 at 307 and that the framers of the Constitution recognised the “political nature of such matters” as aspects of the electoral system, leaving them in their wisdom to parliament”: ibid at 309; McHugh J was of the opinion “that the context of s 24 is inconsistent with the notion that the numbers of electors in the electoral divisions of a State must be equal”: ibid at 351. His Honour also expressed the views that “[A]sking the justices of this court to determine what representative democracy requires ... is a political question and unless the Constitution turns it into a constitutional question for the judiciary, it should be left to be answered by the people and their elected representatives acting within the limits of their powers as prescribed by the Constitution”: ibid at 348 and that “Only if the court concluded that equal representation for equal numbers was an indispensable element of representative democracy would it be justified in holding that the parliaments of Australia cannot legislate inconsistently with that element... When such a division of opinion occurs about what is essentially a political question, this court should be slow to substitute its views for that of the parliaments as to what representative democracy requires”: ibid at 360: Gummow J warned against dissecting s 24 of the Commonwealth Constitution “so as to provide a distinct component 'chosen by the people' with its own operation ... independently of ss 29 and 30”: ibid at 382 and that the judicial branch should recognise that the legislative branch is in a better position to weigh the factors involved in effective representation: ibid at 389. These findings build upon the earlier views of McHugh J expressed in his article “The Law-making Function of the Judicial Process - Part II” (1988) 62 AL/ 116 at 122-124. Gummow J was of the further view that the role of the court was merely to exercise judicial review where legislation establishes a body or tribunal to weigh the various factors constituting effective representation in a system of representative democracy: (1996) 134 ALR 289 at 389.
178 Cf Dawson, D, “Intention and the Constitution - Whose Intent?” (1990) 6 Australian Bar Reviewat 93-95Google Scholar.
179 (1996) 134 ALR 289 at 319
180 Ibid at 337. See also at 338. These approaches should be contrasted to that of Gummow J, who viewed the recurrent use of the words “until the Parliament otherwise provides” as legislatively accommodating “the notion that representative government is a dynamic rather than a static institution and one that has developed in the course of this century”: ibid at 383.
181 Indeed, Toohey J was of the view that “It may be said that if the courts do not prescribe limits, the task of legislatures is made more difficult and the scope for challenging an electoral system is inevitably widened”: (1996) 134 ALR 289 at 330.
182 Toohey J indicated that it was inappropriate for the Court to provide instructions for the drawing of electoral boundaries or the specification of electorate ratios: (1996) 134 ALR 289 at 330. In examining the principle of representative democracy in the Constitution Act 1889 (WA) against the electoral legislation, the aim of facilitating representation of those living in remote areas was held to be a legitimate one, but the legislative means chosen towards that end were not proportionate to the aim: ibid at 331-332. Gaudron J was of the view that a “distinction which is reasonably capable of being viewed as an appropriate and adapted means of taking account of geographic boundaries, community or minority interests or some other matter which bears on effective parliamentary representation, such as the dispersed nature of the population in remote areas, would not, in my view, prevent it being said that members ... were 'chosen by the people'”: ibid at 337. The relevant Western Australian legislation, the Constitution Acts Amendment Act 1899 (WA) and the Electoral Districts Act 1947 (WA) as amended by the Acts Amendment (Electoral Reform) Act 1987 (WA) failed this test of proportionality. This was because, inter alia, “it cannot be justified on the basis that it is reasonably capable of being seen as appropriate and adapted to the dispersed nature of population in the remote regions of Western Australia or to any other matter or circumstance which might bear on effective parliamentary representation”: ibid at 338.
183 See the section of this paper “A broadening of McKinlay by the majority?”, above, where the judgments of Dawson, McHughand Gummow JJ on this point are discussed, as well as the comments regarding Brennan CJ at n 95, above. In McKinlay, the outer limits beyond which the exercise of a vote were no longer an act of direct choice by the people, as discussed by McTieman and Jacobs JJ, Stephen J and Mason J, are extracted at n 6, above.
184 See (1996) 134 ALR 289 at 324 per Toohey J and at 334-335 per Gaudron J. Gaudron J's judgment, whilst acknowledging that the majority in McKinlay rejected the submission that s 24 of the Commonwealth Constitution required electorates of equal numbers of people or voters, convincingly demonstrated the fact that, as four of the six majority judges conceived of circumstances inconsistent with a system of choice indicative of representative democracy in s 24, not all systems of direct popular choice would necessarily satisfy the constitutional requirement.
185 Ibid at 323 (and see Nationwide News v Wills (1992) 177 CLR 1 at 70 per Deane and Toohey JJ for an earlier exposition of this doctrine said to underlie the Commonwealth Constitution).
186 (1996) 134 ALR 289 at 335.
187 Ibid at 324 per Toohey J (emphasis added). Gaudron J observed that four of the six justices who constituted the majority in McKinlay “accepted that inequalities might be of such a magnitude that, at some point, members of the House of Representatives might not be 'chosen by the people"': ibid at 335.
188 Ibid at 332 per Toohey J and at 338 per Gaudron J.
189 In addition to the comments made by Justices Dawson, McHugh and Gummow in McGinty at 134 ALR 289, at 305, 348 and 360, and 391 respectively, this view is given credence by the High Court hearing the Levy and Lange applications to re-open and overrule the decisions in Theophanous and Stephens on 6 August 1996 and 3 to 9 March 1997 respectively. In August 1996, in a preliminary matter in the Levy litigation, Dawson J expressed the belief that the 1994 decisions no longer had a majority on the court: “Theophanous challenge to reopen case”, The Australian 8 August 1996, 5; “Lange challenges free speech rulings”, The Australian 14 September 1996, 7. The Commonwealth government also indicated its intention to intervene in these matters in support of a reopening and overturning of the freedom of political communication rulings: “Government reversal on free speech”, Sydney Morning Herald 2 October 1996, 1 and “Commonwealth to oppose free speech decision”, The Australian 2 October 1996, 1. A plausible, if speculative scenario for the Levy and Lange challenges is an initial retraction of the implied freedom to its original limits in Australian Capital Television and Nationwide News. The retirement of Sir Gerard Brennan as Chief Justice on reaching the age of 70 years on 22 May 1998, (aside from the early retirement of the senior puisne justice, Sir Daryl Dawson in August-September 1997) creates an opportunity for the Commonwealth to make an outside appointee Chief Justice, one who shares views broadly compatible with the Commonwealth's intervention in the Levy and Lange matters, instead of the then senior puisne judge, Justice Toohey, a consistent implied freedoms supporter. In time, the implication might well be further diminished to affect only the process of direct, popular elections, as advocated by the dissenting views of Dawson J and McHugh J in the earlier cases.
190 Indeed, this approach appears at odds with the more modern approach of the High Court to analyse the form and substance of an exercise of constitutional power under such sections as ss 90, 92 and 117 of the Commonwealth Constitution.
191 Of course, there is also the possibility that rights and freedoms issues will be increasingly litigated through the medium of judicial power, especially following the High Court's recent decision inKable v DPP (1996) 138 ALR 577, and as illustrated in the submissions made inKruger and Others v Commonwealth andBray and Others v Commonwealth (Matters M 021/95 and D005/95). Whether this is a desirable development, or will create anartificial, selective and distorted approach to rights and freedoms issues remains to be seen. However, the issues of judicial encroachment and diminution of legislative power, and the impact upon State constitutional responsibilities - matters formative in the reasoning of members of the court in McGinty are central to the prospective use of the separation of powers argument following Kable.
192 In particular, Australian Capital Television v Commonwealth (1992) 177 CLR 106 and Nationwide News v Wills (1992) 177 CLR 1.
193 For example, Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 212 per Gaudron J and at 232 per McHugh J.
194 (1994) 182 CLR 104 at 197 per McHugh J; see also Gummow J's recent endorsement of traditional legalism: NSW Bar Association Bar News Winter 1996 at 32-33.