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Representation Amendment Bill 1977



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PARLIAMENT OF AUSTRALIA

THE PARLIAMENTARY LIBRARY

REPRESENTATION AMENDMENT BILL 1977

Date introduced: 23 February 1977

House: House of Representatives

Presented by: Hon. A. A. Street, Minister representing the Minister for Administrative Services

Short Digest of Bill

Purpose

The purpose of the Bill is to give effect to the decisions of the High Court in McKinlay’s case (50 ALJR 279) and McKellar’s case (not yet reported) about the requirements of section 24 of the Constitution.

Background

In McKinlay’s case the High Court considered (inter alia) the provisions of the Representation Act 1905 under section 24 of the Constitution for determining the number of seats in the House of Representatives for each State. The High Court held

that sections 3, 4 and 12 (a) of the Act were invalid because they linked the making of the determination to the census (sections 3 and 4) and permitted changed numbers of seats never to become effective if a redistribution giving effect to the change did not occur (section 12 (a)). The Court held that the determination should be made once for every ordinary triennial election, using the most recent available Statistics and that if the determination resulted in a changed number of seats for a State that number was the correct number for the next ordinary triennial election even if this meant that the State voted as one electorate.

In McKellar’s case the High Court considered (inter alia) section 10 of the Representation Act 1905 which provides the method of determining the number of seats in the House of Representatives for each State. A quota system is used, similar to that set out in section 24 of the Constitution as a temporary method until Parliament otherwise provides, except that when any remainder exists after dividing the quota into the State populations, the State is entitled to another seat; before 1964, and in the section 24 method, only remainders of more than one-half entitled a State to an extra seat. The High Court found that the 1964 amendment was not in accordance with section 24; as a practical result, using the final 1976 census figures, four of the existing seats in the House of Representatives will cease to exist at the next determination.

Summary

The Bill amends the Representation Act 1905.

Amendments relating to the timing of determinations (McKinlay’s case).

Clause 4 substitutes new sections 3, 4 and 5 for existing sections 3, 4, 5 and 6. The new provisions require the process of determining the number of seats for each State

Representation Amendment Bill 1977 (Bills Digest 88, 1976-77) Electronic version created by the Law and Bills Digest Section, Parliamentary Library, 2007.

Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Representation Amendment Bill 1977 (Bills Digest 88, 1976-77) Electronic version created by the Law and Bills Digest Section, Parliamentary Library, 2007.

Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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to begin in the twelfth month of a Parliament, using the latest statistics of the Commonwealth (which, by virtue of amendments to the Census and Statistics Act 1905 by the Census and Statistics Amendment Bill 1977, will be quarterly population figures based on a five year census.)

Clause 3 which replaces section 1A defines “determination” as one made under section 9.

Clause 6 amends section 12 which now provides that where a determination leads to changed numbers of seats in a State the changed number will not take effect (a) at any election before a redistribution occurs or (b) for any by-election. The new provision requires ordinary general elections to be held for the number of seats required by the most recent determination (sub-section (1)). At elections that are not ordinary general elections, the existing distribution is to be used (sub-section (2)).

The concept of “ordinary general election” is defined in section 1A as substituted by clause 3. It means a general election after a dissolution or expiration at or towards the end of the three year period of a House of Representatives. This is in line with the words used by Barwick CJ. in McKinlay’s case and with the arguments put forward by Gibbs, Stephen and Mason JJ.

An amendment to the Commonwealth Electoral Act 1918 proposes that, where an ordinary general election is held and a State has not been divided into the correct number of divisions to correspond with a changed number of seats, the election in that State must be held at large and the State must vote as one electorate.

Clause 9 does not amend the Act but provides that the next general election, after the commencement of the Act, whether ordinary or not, must be for the correct number of seats in all States (with the result that, if a redistribution does not occur in any State where a change in number of seats is required, that State must vote as one electorate

because of the current amendments to the Commonwealth Electoral Act 1918).

Clause 7 provides for a new form of certificate of the populations of the Commonwealth and the States in the Schedule to the Act.

Amendments relating to the method of making a determination (McKellar’s case).

Clause 5 amends section 10 so that paragraph (b) accords with the High Court’s interpretation of section 24 of the Constitution in McKellar’s case. In future only a remainder of more than one-half after division of the quota into State populations will result in an extra seat in a State.

In McKellar’s case it was also argued that “people of the Commonwealth” in section 24 of the Constitution should include the territorial populations and that therefore section 1A, excluding them from that concept was invalid. The Court held unanimously that section 1A was valid and the definition is repeated in section 1A as substituted by clause 3.

Law and Government Group

23 February, 1977 Legislative Research Service