HOUSE OF REPRESENTATIVES ELECTIONS WHETHER PARLIAMENT OR EXECUTIVE DETERMINES QUOTA : MEANING OF LATEST STATISTICS OF COMMONWEALTH : EFFECT OF DISTRIBUTION . EXTENT OF STATES' POWER TO EFFECT DISTRIBUTIONS
CONSTITUTION, ss. 24, 29 : COMMONWEALTH ELECTORAL ACT 1902, s. 21
The Minister for Home Affairs asks to be advised on the following questions:
- Is it for Parliament or for the Executive Council to decide the time and occasion for the determination of the proportion of members for the representation of the several States under section 24?
- What is the meaning of the term 'latest statistics' in the section?
- Assuming that it appears upon statistics taken either under the authority of executive act or State law that there appears to be a necessity for the alteration of the proportion of representation is it mandatory for the Executive or Parliament to take immediate action?
- If the report of a Commissioner, under Part III of the Electoral Act, be laid upon the table under section 20 and be neither affirmed or rejected does the report lapse?
In considering the answers to the above questions, I am asked to consider the effect, if any, upon them of the provision of section 29 of the Constitution Act, and any laws passed subsequent thereto.
My opinion upon the questions is as follows:
- The Constitution does not expressly state, either who is to determine the quota, or who is to decide that the necessity for its determination has arisen. I incline to the view that the necessity can only be declared by the Parliament, or under circumstances defined by the Parliament. If it were otherwise, then-assuming the existence of 'latest statistics of the Commonwealth'-it would appear that whenever the legal 'necessity' arose, and a quota was determined, a general election immediately following would have to be conducted in accordance with the quota, though there might be no possibility of a redistribution of electorates before the election. The whole State in such case would have to vote en bloc as one electorate. The Parliament having made provision for distribution, it appears that the powers of the State under section 29 of the Constitution are exhausted.
- In my opinion, the expression 'latest statistics of the Commonwealth' means statistics recognised or defined by an Act of the Parliament in respect of'statistics'.
- I do not think that-apart from Federal legislation-it is mandatory for the Executive or even competent for the Executive, to take action with regard to determining the quota upon statistics taken or adopted under the authority of mere executive act or of State law.
- Until such Parliamentary action as is mentioned in section 21 of the Commonwealth Electoral Act 1902 is taken, the proposed distribution remains ineffective; it does not lapse in the sense of becoming a nullity and might at any time as far as legality is concerned be made operative by resolution of both Houses. But from the nature of the case it is intended that if approved it should be approved speedily because circumstances of population, etc. are always in process of change.
In view however of my opinion on the next question, it is unnecessary to rest the whole position on this.
[Vol. 5, p. 51]
* See also Opinion No.247.