parliamentary representation constitution of house of representatives: method of determining number of members representing states: criteria

Constitution ss 24, 27: Representation Act 1905 ss 6, 10

The following memorandum, asking for my advice, has been forwarded by the Chief Electoral Officer of the Commonwealth by direction of the Minister for the Interior:

I am directed to submit for favour of advice of the Rt. Hon. the Attorney-General, the question of whether Parliament has power, in view of the provisions of sections 24 and 27 of the Constitution, to amend section 10 of the Representation Act 1905, to provide—

- a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the certificate (for the time being in force) of the Chief Electoral Officer, by twice the number of Senators, plus one.
- The number of Members to be chosen in each State shall, subject to the Constitution, be determined by dividing the number of the people of the State, as shown by the certificate (for the time being in force) of the Chief Electoral Office, by the quota; and if on such division there is a remainder greater than one-fourth of the quota, one more Member shall be chosen in that State.
Note. The effect desired is that population shall be divided by 73 instead of 72 and that where the remainder is greater than .25 one more Member shall be chosen in the State.

or to provide—

(b) The number of Members to be chosen in each State shall, subject to the Constitution, be determined by dividing the number of the people of the State, as shown by the certificate (for the time being in force) of the Chief Electoral Officer, by the quota; and if on such division there is a remainder greater than decimal .3, one more Member shall be chosen in the State.

Note. The effect desired is that population shall be divided by 72, i.e. twice the number of Senators and that where the reminder is greater than .3, one more Member shall be chosen in the State.

The certificate referred to in section 6 was forwarded to the Minister on the 10th November, 1933, has been published in the Gazette and copies laid before both Houses of the Parliament. Under the first suggested amendment the membership of the House would be 77 and under the second alternative suggestion, 76.

A statement showing the distribution of Members—

- under the provisions of the existing law,
- if the suggestion that 73 be used as divisor and a remainder greater than one-fourth entitle the State to an additional Member were adopted, and
- if the further suggestion that the population be divided by twice the number of Senators, as under the present law, but that if there is a remainder greater than .3 an additional Member shall be chosen in the State, were adopted,
is forwarded herewith for your information.

Section 24 of the Constitution is as follows:

24. 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 the senators.

The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

- A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators;
- The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.
But notwithstanding anything in this section, five members at least shall be chosen in each Original State.

It will be seen that this section contains two main principles, in so far as the number of members of the House of Representatives are concerned:

- that the number of members shall be, as nearly as practicable, twice the number of the Senators; and
- that the number of members chosen in the several States shall be in proportion to the respective numbers of their people,

together with an overriding provision to be mentioned hereafter.

Of these two the former contains the words ‘as nearly as practicable’, while no such words are to be found in the latter. It follows, therefore, that compliance with the requirement of proportionate representation is essential to any scheme enacted by Parliament, while as between two schemes complying with that requirement, preference should be given to that scheme which most nearly results in the number of members of the House being twice the number of the Senators.

The last paragraph of section twenty-four expressly permits, and in the present circumstances of distribution of population among the States, compels a departure from the foregoing requirements. It is that five members at least shall be chosen in each original State.

The Constitution does not require that a new method of determining the total number of members of the House and their distribution among the States shall be adopted for each election. It is contemplated that Parliament may substitute some generally applicable method for that provided in section 24, which, with a variation not material to the present question, has been adopted in the Representation Act 1905, section 10, which is in the following terms:

For the purpose of determining the number of Members of the House of Representatives to be chosen in the several States, the following procedure shall be followed:

- A quota shall be ascertained by dividing the number of people of the Commonwealth, as shown by the certificate (for the time being in force) of the Chief Electoral Officer, by twice the number of Senators.
- The number of Members to be chosen in each State shall, subject to the Constitution, be determined by dividing the number of the people of the State, as shown by the certificate (for the time being in force) of the Chief Electoral Officer, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more Member shall be chosen in the State.

There is no doubt that this method, adopted from the Constitution itself, is in accordance with the Constitution. The result of applying this method is that there are now 75 members of the House.

The two alternatives, the validity of which I am asked to consider, are:

- whether this section may be amended by dividing the number of people of the Commonwealth by twice the number of senators plus one, and by dividing the number of people of the State by the quotient so obtained and giving a State an extra member if the remainder is greater than .25; and
- whether this section may be amended by dividing (as at present) the number of people of the Commonwealth by twice the number of Senators, and by dividing the number of people of the State by the quotient so obtained and giving a State an extra member if the remainder is greater than .3.

The addition of one to twice the number of Senators is arbitrary, and while in a given case it may give a representation which is more nearly proportionate than division by twice the number of the Senators, in other cases the addition of two or three would produce a more nearly proportionate representation. This method, however, cannot, in my opinion, be said to be prohibited by the Constitution.

As to the alternative proposal, this also is, in my opinion, a method which could be lawfully adopted by the Parliament if Parliament thought proper. It is, I think, within the power of the Parliament to say whether a remainder in excess of .3 is sufficient to justify the provision of an additional member.

The existing enactment under which a State is given an additional member if the remainder is in excess of .5 is also to a certain extent arbitrary, although that method was embodied in the Constitution and remains in operation until the Parliament may see fit to alter it. A remainder in excess of .3 represents a considerable proportion of the quota, and (subject to my subsequent remarks in this Opinion) its adoption as the basis for the provision of an additional member would be a substantial compliance with the guiding principles of section 24 of the Constitution.

I think, therefore, that it would be legally possible for the Parliament to enact legislation based upon either of the methods set out above.

It is open to Parliament to adopt any method which can fairly be said to bring about the two results:

- That the number of members chosen in the several States shall be in proportion to the respective numbers of their people; and
- That the number of members shall be, as nearly as practicable, twice the number of the Senators.

These requirements mean that, subject to a limit of about 72 members, the number of members in the States other than Tasmania (at present) shall be such that proportionate representation as between such States shall be attained. That is—the number of members shall be such that each member corresponds to an equal number of people. This is, under actual conditions (and indeed, under any probable conditions) impossible in a strict sense; in the first place, because the number of members is limited, the limit being expressed by the words ‘as nearly as practicable twice the number of the Senators’; in the second place, because, although a population is divisible into quota groups with excess fractions (and in practice such fractions always appear) a member is not divisible into fractions. Assignment of additional members to correspond with excess fractions will produce a more accurately proportionate result than any system which ignores such fractions.

It is really a problem for a mathematician rather than a lawyer to determine what system most nearly satisfies these conditions. The only observation that a lawyer can make in this connection is that it would appear that the nearest approach to accurate proportional representation would be obtained by a system under which a State with a smaller number of members would be entitled to an additional member by reason of a smaller ‘excess fraction’ (i.e. a fraction above the quota) than in the case of a State with a larger number of members. But even this suggestion should be considered by a mathematician, in the light of the consideration that any formula adopted must be applied to circumstances which vary from time to time.

With reference to the two specific proposals submitted to me, I have already stated that I am of the opinion that it is open to Parliament to adopt either of them—i.e. neither can be said to be unconstitutional. There are, however, other methods (including the present method) of applying the general directive principles contained in the Constitution. In some circumstances the present system would result in as exact proportional representation as any other system—or possibly more exact proportional representation—and at the same time comply with the limit of approximately 72 members. The consequence of applying any formula will vary with the distribution of population as among the States at the time when the formula is applied. In choosing any particular formula Parliament is entitled to take into account any matter of policy and generally any aspect or consideration which it deems to be relevant.

[Vol. 26, p. 641]