McGinty v Western Australia

The questions to be resolved in

"(i) Is Section 6 of the Constitution Acts Amendment Act 1899 (WA) invalid?

(ii) Are Sections 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (WA), or any of them, invalid?

(iii) If any of the Sections 2A(2), 6 or 9 of the Electoral Distribution Act 1947 (WA) is or are invalid, is it or are they severable and, if so, to what extent?"[1]

The Plaintiffs argument rested on two primary grounds;

Representative democracy requires,

1. That every person with capacity have the right to vote; and
2. That each vote should be equal in importance.[1]

The nature of this definition implies that there must be some restriction on voting, the determination of capacity is left to the legislature. The Plaintiffs argued that both the Commonwealth and Western Australian constitutions required that representative democracy be the starting point of any government structure in Australia.[1] Brennan CJ noted that;

"In this century, the age of legal adulthood has been reduced from 21 to 18 and the legal incapacity of women to vote has been removed. Aborigines, who were once constitutionally disqualified from the franchise, are no longer so disqualified. But age, sex and race are not the only qualifications that have governed an adult's right to vote. Other qualifications have related to ownership of property and education or a period of residence within the electoral district. Disqualifications still include the status of convicted criminal and mental infirmity or absence from registered address. In view of the fact that the franchise has historically expanded in scope, it is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote."[1][3]

The High Court had already accepted the general proposition that the Commonwealth Constitution did not require a 'one man one vote' test in Attorney General; Ex Rel McKinlay v The Commonwealth (1975) 135 CLR 1.[4]

Alternatively, Western Australia argued that prior precedent weighed to the view that the proper construction of both the Western Australian Constitution and the Commonwealth Constitution did not require an equality of voting power. Western Australia also advanced the argument that a disparity in voting power did not necessarily preclude fairness in elections, as relying on strict majoritarianism can result in bad outcomes for minorities.[1][3]

The 5-1 result in favour of The State of Western Australia answered question (i) (Is section 6 of the Constitution Acts Amendment Act 1899 (WA) invalid?) in the negative.[1] Question (ii) (Are Sections 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (WA), or any of them, invalid?) was similarly rejected, and question (iii) (If any of the Sections 2A(2), 6 or 9 of the Electoral Distribution Act 1947 (WA) is or are invalid, is it or are they severable and, if so, to what extent?) was unnecessary to consider.[1] By ruling against the case, the High Court set the precedent that the phrase "directly chosen by the people" in ss 7 and 24 of the Constitution could not be construed to incorporate a principle of one vote, one value.[10] The court has thus far declined to consider any other state constitutional amendments, or state parliaments, that have entrenched malapportioned electoral districts in their electoral map.[10] The role of malapportionment in Australian politics remains strong, and the impact on states such as Western Australia remains difficult to fully value. The lack of population densi

McHugh J's judgment also extended a line of jurisprudence that had flowed from a series of cases in the 1980s and 1990s dealing with implied freedoms of political communication, that ‘the political and legal sovereignty of Australia now resides in the people of Australia’.[1][11] A distinction between the 'political' conception of sovereignty, and the legal definition, was a concept first elucidated by James Bryce in the early 20th century.[11][12] The concept of the political, or popular, version of sovereignty could be defined as ‘the notion that the ultimate source of all authority exercised through the public institutions of the state originates in the people."[11] A consequence of this decision could be viewed as to what extent this judgment adopts the view that the sovereignty of the nation now resides in the Australian population and how that could impact on prior constitutional law. George Duke suggests that this judgment doesn't clear up entirely the position of the High Court and; "taken as a whole, the dicta of the High Court on popular sovereignty suggest a preference for a weak conception tied to elective parliamentary representation. The relevant High Court dicta on popular sovereignty are far from uniform".[11] The basis of this argument is that the Australian Constitution has been popularly affirmed prior to enaction, and that following the termination of links with the United Kingdom via the Australia Acts the continuing effectiveness of the Constitution has been by the 'acquiescence of the people'.[11] McGinty v Western Australia directly impacted this by adding definition to the words 'directly chosen by the people' and considering what impact the idea of representative democracy should have on subsequent constitutional interpretation. Gummow J's consdieration of the role of the population was also particularly interesting, he noted that the extent of the population's control over the Commonwealth Constitution was limited only to an affirmative or negative vote on a proposition, the actual substance of alteration is decided by the parliament.[1] Even the people's control over the governance of the nation is only limited to the election of representatives who are periodically up for re-election.[11]