The Protection of Voting Equality in Australia

DOI10.1177/0067205X1604400309
Publication Date01 September 2016
Date01 September 2016
AuthorAnthony Gray
SubjectArticle
THE PROTECTION OF VOTING EQUALITY IN AUSTRALIA
Anthony Gray*
ABSTRACT
This paper argues that the High Court should accept that the Commonwealth Constitution
embraces the concept of voter equality, such that systems of malapportionment may be
liable to constitutional challenge. Specifically, it argues that ss 7 and 24 of the Constitution
create a system of representative government and representative democracy which
require that elections be free and fair, and that a malapportionment could potentially
interfere with the system of representative democracy which the Constitution requires.
Recent case law reinforces notions of equality in ss 7 and 24, which can be applied in the
context of voter equality.
I INTRODUCTION
There have been recent moves by independents and a major political party in
Queensland to increase the number of members of Parliament, and change the
‘weighting’ given to rural electorates in the calculation of electoral boundaries and
voting numbers. Such moves raise the question of the extent to which constitutional
protection exists in Australia, including the states, for equality of voting power
(sometimes simplified to ‘one vote, one value’).1 This reminds us of past egregious
practice in some states, particularly Queensland, Western Australia and South Australia,
involving drawing district lines in unusual places in order to ‘rig’ results (gerrymander),
and/or significant disparity in voter numbers across seats (malapportionment), even if
the new examples (mercifully) pale in scale compared with past iterations.2 It ought not
be forgotten that the electoral system in place during the Bjelke-Petersen era in
Queensland created some electorates containing four times the number of voters in other
electorates.3 Further, that even in 2001, non-metropolitan voters had roughly twice the

*
Professor of Law, USQ School of Law and Justice. Thanks to two anonymous referees for
helpful comments on an earlier draft.
1 Electoral (Redistribution Commission) and Another Act Amendment Bill 2015 (Qld). Parliament
subsequently passed laws providing for an increase in seats, and other changes not presently
relevant: Electoral (Improving Representation) and Other Legislation Amendment Act 2016 (Qld).
2 Clause 15 of the Electoral (Redistribution Commission) and Another Act Amendment Bill 2015
(Qld) proposed an increase in allowance given to large-scale (remote) electorates from 2% to
4%.
3 Graeme Orr and Ron Levy, ‘Electoral Malapportionment: Partisanship, Rhetoric and Reform
in the Shadow of the Agrarian Strong Man’ (2009) 18 Griffith Law Review 638, 642.

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voting power of Perth voters in Western Australia.4 Electoral malapportionment also
had a lengthy history in England, with amendments in 1884 heralded as a vast
improvement, reducing disparity in voter numbers among electorates from up to 40
times to a (mere) seven times.5
Today, in practice there is much greater equality, with variations among electorates
usually permitted up to 10 per cent.6 Specifically, New South Wales permits up to 10 per
cent variation, and malapportionment is deemed where there is a variation of more than
five per cent between the number of electors on the roll in any particular electorate and
the average.7 Redistribution is mandatory where at least 25 per cent of seats meet the
definition of malapportionment. 8 South Australia, 9 Victoria, 10 Queensland, 11 and
Western Australia recognise a tolerance of up to 10 per cent variation, 12 as does the
Commonwealth, 13 although legislation in that jurisdiction states that as far as
practicable deviation should not exceed 3.5 per cent.14 A review is currently under way
in Queensland, after the state attorney-general conceded the current boundaries were
not proportional.15 As at 30 June 2016, 16 Queensland electorates deviated from the
average elector enrolment by more than 10 per cent. Electorates ranged in size from 27
113 (Warrego) to 42 941 (Murrumba).
Recent data from the Australian Electoral Commission (available at aec.gov.au,
accessed 19 August 2016) indicates wide disparity in the number of enrolled electors
across federal seats. Excluding Tasmania and the territories, where special rules apply,
the number of electors as at the date of the recent federal election ranges from 95 008
(Oxley) to 130 591 (McEwen),16 obviously well above the 10 per cent tolerance level.
Data from the New South Wales Electoral Commission website at March 2016 indicates
some state seats with enrolments approximately eight per cent over the average
(Shellharbour and Wollongong), and some with 3–4 per cent under average
(Cootamundra, Campbelltown, Bankstown). Victorian Electoral Commission figures for
the 2014 state election indicate large disparities in enrolment, from Rowville (38 834) to
Altona (48 044). The South Australian Electoral Commission indicates the number of

4 Kirsten Robinson, ‘One Vote, One Value: The Western Australian Experience’ in Graeme Orr,
Bryan Mercurio and George Williams (eds) Realising Democracy: Electoral Law in Australia
(Federation Press, 2003) 100, 106.
5 A H Birch, Representative and Responsible Government (University of Toronto Press, 1964) 67;
subsequently further amendments were made to reduce the disparity to two times, with a
commitment to regular review: at 71.
6 Graeme Orr, The Law of Politics: Elections, Parties and Money in Australia (Federation Press,
2010) 29–30.
7 Constitution Act 1902 (NSW) s 28.
8 Ibid s 28A.
9 Constitution Act 1934 (SA) s 77.
10 Electoral Boundaries Commission Act 1982 (Vic) s 9(2).
11 Electoral Act 1992 (Qld) s 45.
12 Electoral Act 1907 (WA) s 16G(2). Tasmania uses the Hare-Clark proportional representation
system.
13 Commonwealth Electoral Act 1918 (Cth) s 73(4).
14 Ibid s 73(4)(a).
15 Queensland, Parliamentary Debates, Parliament, 21 April 2016, 1364 (Yvette D’ath).
16 Australian Electoral Commission, Elector Count by Division, Age Groups and Gender for All
States and Territories, (18 July 2016) Australian Electoral Commission
.

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The Protection of Voting Equality in Australia
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electors enrolled for the 2014 election varied from the seat of Giles (22 712) to the seat of
Lee (25 971). In Western Australia, which maintains a zonal system and has a generous
large district allowance, after a 2015 redistribution seats ranged in size from 10 510 voters
(North West Central) to 26 987 (Swan Hills). Tasmania uses the federal seat boundaries
for the purposes of state elections. As at 2 July 2016, enrolment numbers varied from 72
519 (Braddon) to 76 797 (Franklin). For the recent Northern Territory elections, numbers
varied from 4 848 (Arafura) to 5 998 (Braitling). A redistribution was completed in the
Australian Capital Territory in 2015. That report indicated that as at April 2015, there
was a variation in the number of electors in each electorate of 52 868 (Brindabella) to 56
713 (Kurrajong).
The following table summarises these findings:

Lowest
Highest
Relation highest
Jurisdiction
voter
voter
Absolute voter enrolment/
enrolment enrolment disparity lowest voter
enrolment
Commonwealth
95 008
130 591
35 583
137.45%
New South Wales
53 076
59 596
6 520
112.28%
Victoria
38 834
48 044
9 210
123.72%
Queensland
27 113
42 941
15 828
158.38%
South Australia
27 712
25 971
3 259
114.35%
Western Australia
10 510
26 987
16 477
256.77%
Tasmania
72 519
76 797
4 278
105.90%
Northern Territory
4 848
5 998
1 150
123.72%
Australian Capital
Territory
52 868
56 713
3 845
107.27%

The United States Supreme Court recently re-confirmed its system of representative
government required ‘as close to perfect equality as possible’ between voting districts.17
Recent talk of changes in Queensland raises the question of the extent to which
Australian constitutions, federal or state, protect the principle of ‘voter equality’. If the
principle is accepted at federal level, it ought also to be applied at state level. Though
the detail differs, essentially each state constitution reflects a system of representative
government.18 The dissentients in McGinty v Western Australia found the principle of
representative government was inherent in the Western Australian Constitution.19 In the
alternative, it can be argued s 106 of the Commonwealth Constitution means that
fundamental principles of that Constitution, like representative government, apply to

17 Evenwel v Abbott (14-940), 4 April 2016).
18 Constitution Act 1902 (NSW) s 28; Constitution Act 1975 (Vic) s 34; Constitution of Queensland
Act 2001 (Qld) s 10; Constitution Act 1934 (SA) s 27; Constitution Act 1889 (WA) s 73(2)(c); and
Constitution Act 1934 (Tas) s 28.
19 (1996) 186 CLR 140, 211 (Toohey J), 223 (Gaudron J) (‘McGinty’).

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state constitutions, as Gaudron J also found in McGinty.20 In the further alternative, to
the extent that infringements on voting equality breach the implied freedom of political
communication (see Part III(B)), it is accepted that this freedom (derived from ss 7 and
24 of the Commonwealth Constitution) applies both
...

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