Opinion Number. 466

Subject

ELECTORAL DISTRIBUTION WHETHER PROPER FOR COMMISSIONERS TO CONSIDER MATTERS EXTRANEOUS TO THOSE PROVIDED FOR BY LAW

Key Legislation

COMMONWEALTH ELECTORAL ACT 1902-1911, s. 16

Date
Client
The Secretary, Department of Home Affairs

The Secretary to the Department of Home Affairs has submitted the following minute by the Chief Electoral Officer, and the telegram accompanying it, to this De-partment for advice.

The minute is as follows:

I shall be glad if the accompanying telegram will be referred to the Attorney-General's Department for advice, as a matter of urgency.

The view taken by the Commissioners in the past has been that they were justified in giving consideration, if they thought it necessary, to matters such as decreasing or increas-ing population in particular parts of the State.

Judge Murray, on page 29 of his 1906 report refers to this matter in the following terms:

'The difficulties and expense attending redistribution are considerable. In suggesting the manner in which this redistribution should be made your Commissioner is impres-sed with the expediency, not only of consulting present conditions, but of providing for those that may be anticipated in the near future.' and again refers to the matter in paragraphs 12-1918, 22, 29, 30 and 42 in relation to par-ticular Divisions.

The Victorian Commissioners, in their report which was adopted by Parliament, stated 'that they fully considered not only existing conditions but those which might be an-ticipated in the near future'.

The telegram is as follows:

Opinion Attorney-General respectfully requested to following, viz. were Commissioners acting within provisions of Electoral Act in giving consideration to anticipated decrease of numbers of electors in proposed division E.

The position seems to be that the Commissioners have made a report as to the re-distribution of the State of Western Australia, that that report has been submitted to Parliament, and that one House-the Senate-has disapproved of the redistribution proposed.

Either House of the Parliament has power to approve of a proposed distribution or to disapprove of it on any specified ground or without specifying any ground.

The Senate in its resolution specified its reasons for disapproving the proposed dis-tribution, and it seems obvious that those reasons should be taken into consideration by the Commissioners in proposing a fresh distribution in order to avoid the risk of the fresh distribution being also disapproved.

The question on which an opinion is asked refers to something which was done in connection with the proposed distribution which has been disapproved of, and no good would now result from a specific opinion on the question being given.

Section 16 of the Act(1) is as follows:

16. In making any distribution of States into Divisions the Commissioners shall give due consideration to-

  1. Community or diversity of interest,

  2. Means of communication,

  3. Physical features,

  4. Existing boundaries of Divisions,

  5. Boundaries of State Electorates;

and subject thereto the quota of electors shall be the basis for the distribution, and the Commissioners may adopt a margin of allowance, to be used whenever necessary, but in no case shall such quota be departed from to a greater extent than one-fifth more or one-fifth less.

It may be stated as a general matter of interpretation that the ideal distribution which the Act aims at is an exact distribution according to the quota; but the Com-missioners are empowered 'whenever necessary', to deviate from the quota to a limited extent. In the exercise of that discretionary power, the section neither expressly allows nor forbids them to be influenced by their estimate of probable future conditions.

Ordinarily the Commissioners would probably only consider the matters expressly mentioned in the section, and the question whether they should consider other matters is a matter for their determination after considering all the circumstances. Both Houses of Parliament have, it appears from the minute, approved of proposed redis-tributions in which anticipated conditions were taken into consideration. This indicates that both Houses recognise that there are cases in which anticipated conditions may be taken into consideration.

I recommend that the Department of Home Affairs be advised accordingly.

[Vol. 10, p. 323]

(1) Commonwealth Electoral Act 1902-1911.

(2) This opinion was initialled by Mr Hughes,Attorney-General.