Australian Law Reform Commission - Reform Journal
Reform Issue 78 Autumn 2001
This article appeared on pages 5 - 10 of the original journal.
By Professor Cheryl Saunders*
One of the benefits of a federation is the greater opportunity it offers for enhanced representation through multi-level democracy. Typically, this is achieved in several ways. First and most obviously, the people are directly represented at each level of government; in Australia these are the Commonwealth, states and territories. In addition, the people organised in states are represented in central institutions. This latter form of representation recognises the significance of the constituent parts of the federation and serves the purpose of enabling the views of each to be taken into account.
The design of all federations allows for representation of both these kinds, although the mechanisms used vary significantly. This article examines the Australian approach in the light of institutions and principles in use elsewhere.
Direct representation of the people
Commonwealth parliament. Australian voters are directly represented in both the House of Representatives and the Senate. The opening words of sections 7 and 24 of the Australian Constitution – requiring the respective Houses to be ‘directly chosen by the people’ – have proved unexpectedly significant in Australian constitutional law.1 In the case of the Senate, the requirement for direct election was a sign of the relatively progressive democratic character of our Constitution by the standards of 1901. The United States Senate, on which the Australian Senate otherwise broadly was modelled, was not directly elected until 1913.2
The Senate also was conceived as the principal mechanism for the representation of states. In that context it is considered again below. The requirement for the equal representation of states in the Senate3 ensures greater numerical representation of the smaller states in the Commonwealth parliament than otherwise would have been the case. Otherwise, notoriously, the Senate does not play a federal role.
Ironically, however, the Senate has developed as an important mechanism for direct popular representation, following the introduction of proportional representation in 1949. Australians differ among themselves about whether a powerful Senate in which the government party rarely, if ever, has a majority is a good or a bad thing. Nevertheless, as presently constituted, the Senate undoubtedly offers voters a wider choice of representatives and prevents the parliament being taken for granted by the executive branch.
Proportional representation is not the only feature of the constitution of the Senate that makes a government majority unlikely. Factors such as the rotation of elections; the equal representation of states; the use of each state as a single electorate; and the length of Senate terms all make a contribution as well.4 Proportional representation on the basis of each state as a single electorate is the single most important factor, however. In the circumstances, it is worth noting that neither proportional representation nor the equation of each state with a single electorate is constitutionally entrenched. Either or both could be altered by ordinary legislation, if the Senate were minded to pass the legislation or if passage at joint sitting, following a double dissolution,5 could be secured.
The House of Representatives is constituted on the basis of Australians voting nationally. Even for this purpose, however, the states and territories are used as an organisational tool. As a consequence of the nexus requirement, the total size of the House is tied to approximately twice the size of the Senate and thus to the entitlement to equal Senate representation of each of the original states. The ‘popular’ character of the House is assured by distributing the total number of seats, thus derived, in precise proportions between the states. Surprisingly, the Constitution shows no equivalent concern for proportionality in numbers between electorates within states, other than providing for an election on the basis of a state as a single electorate, if no valid distribution has been made.6 The necessary corollary of these arrangements is that the Constitution prohibits any federal electorate that straddles the border between two states.
This approach to the constitution of the House of Representatives was not inevitable. It would have been possible, for example, to fix the total number of members of the House of Representatives by reference to the total size of the Australian population and to provide for the distribution of electorates on a national basis.7 The use of states as an aid in constituting the House was a convenient solution when the Constitution first came into effect, however. It enabled the voting laws of each state to be used for the first federal election and to be available for use thereafter, until the Commonwealth parliament provided otherwise.8
The Constitution of the United States, on which the Australians clearly drew for much of their initial draft, goes even further in using the states as factors in the constitution of the House of Representatives. Although the total size of the House is determined by reference to population size, it is described as ‘chosen ... by the People of the several States...’.9 The relevant state executive fills vacancies in representation in the House.10 As in Australia, the manner of elections is prescribed by state legislation until the Congress otherwise provides.
Australia followed the United States Constitution also in excluding Indigenous people from the original calculations that determined the numbers of members to which each state was entitled.11 Similarly, the rather odd sanction against state voting laws that discriminate on racial grounds, now found in section 25 of the Australian Constitution, seems to have been drawn from the 14th amendment to the Constitution of the United States. Rather more direct and satisfactory provisions subsequently have been put in place in the United States, however, in the 15th, 19th and 26th amendments, which between them confer a right to vote irrespective of race, sex or age over 18. If and when Australia decides to tackle section 25, these precedents may be useful.
State parliaments. In general, representation in the parliaments of the Australian states is determined under the constitution of each state. The arrangements made have been influenced to a degree by the processes of experimentation and adaptation that federalism is supposed to encourage. Thus female suffrage spread throughout all the states by the end of the first decade of federation. A maximum variation of 20 per cent between numbers in electorates eventually emerged as the de facto national (but not invariable) norm. Fixed and partly fixed terms for the lower house of state parliaments now offer two distinct options for restricting the power of governments to dissolve parliaments at will. Independent electoral commissions have become accepted in most jurisdictions as an important protector of both the fairness and efficiency of elections.
The Australian Constitution itself provides no overriding national norms for the standards of representation for state constitutions. In 1996, the High Court rejected an argument that the Australian Constitution offered an implied guarantee of some proportionality in the distribution of electoral districts for the Legislative Council of Western Australia.12 It may be that, in circumstances that are sufficiently extreme, a future High Court would find that there are finite limits to the concept of a state ‘parliament’, which can be drawn from the limited federal role they play in the Australian Constitution.13 For the moment, however, that possibility appears remote.
In this respect, Australia is quite different to other, comparable federal systems. The Constitution of the United States now provides some guarantee of the right to vote at the state level and also of the fairness of electoral distribution. The Constitution of Canada not only extends democratic guarantees to the provinces, but also excludes them from the list of rights that parliaments can override.14 In 1988, large national and state majorities rejected a referendum proposal that would have provided some protection for representation at the state level in Australia.15 The somewhat jaundiced circumstances in which that referendum question was put, however, suggest that the result may be unreliable as an indication of the real views of the Australian electorate.16
Representation by states, in central institutions
Senate. The Australian Senate is the institution in which Australians, organised in states, most obviously are represented. Each original state is entitled to equal representation, which presently is set at 12. In 1974, provision was made for representation of the voters of certain territories in the Senate as well. The validity of territory representation was upheld by the High Court, as the preferable interpretation of the admittedly ambiguous provisions of the Constitution.17 If the Northern Territory ultimately becomes a state some debate can be expected about the extent of its Senate representation. Legally, however, it is clear that only the original states are entitled to equal representation. The issue is less important in the United States, where each state has only two Senators and no nexus requirement applies.
The direct election of Senators has resulted in a Senate that plays a national, rather than a federal role. Australia is not particularly unusual in this regard. One option for ensuring that an upper house plays a more federal role is suggested by the upper house of the German parliament, the Bundesrat. The Bundesrat is comprised of representatives of state governments and its powers are limited to matters relevant to the states. In effect, in Germany, the Bundesrat is a mechanism for cooperative federalism. Unusually from an Australian perspective, however, it operates within the national sphere of government, rather than between spheres. In Australia, the cooperative function of the Bundesrat is performed by the Council of Australian Governments and the rest of the ministerial council network, to the extent that it is performed at all. Clearly, however, these institutions are intergovernmental, rather than intragovernmental, in character.
From time to time there is debate in Australia about whether a Senate modelled on the Bundesrat would be preferable, to enhance the influence of the states in federal decision-making. The possibility is interesting, but requires caution. In the first place, the Bundesrat is a natural product of German historical experience. In an Australian setting it would be an entirely novel institution, the development of which would be difficult to predict. Equally importantly, transformation of the Senate into a Bundesrat would affect some of the functions that the Senate presently performs, as a check and balance on the power of the government and the House of Representatives, in relation to all national issues. A change of this kind may not be acceptable without complementary changes to the functions and procedures of the House of Representatives itself.
Referendum. The procedures for constitutional change also provide for the involvement of Australians organised in states as well as nationally. Under section 128, a proposal for change must be initiated by the Commonwealth parliament, put to referendum and accepted by double majorities. The framers of the Constitution conceived the requirements for an overall majority and for majorities in a majority of states as broadly mirroring the two Houses of the Commonwealth Parliament.
It is common in federations for sub-national units to be represented in some way in constitution alteration procedures. The Australian requirement for passage of a referendum by double majorities was taken directly from the Constitution of Switzerland. By contrast, the Constitution of the United States requires ratification by state legislatures or state conventions and the Constitution of Canada uses provincial legislatures, in accordance with a formula that recognises the importance of regional representation.
Australia differs from many other federations in providing a single method for the initiation of amendments involving the Commonwealth government and parliament alone. This might have mattered less had the Senate developed as a significant federal institution, but not much less; the Senate has no capacity to initiate referendum proposals without government support. As it is, however, the narrow procedure for initiation constrains the range of proposals for constitutional change that are likely to be seriously considered. This is one of a number of factors that may have contributed to the record of failed referendums.
It is easy enough to find agreement that an alternative mechanism for the initiation of proposals for change would be healthy, if only as competition to the Commonwealth government and parliament. It is more difficult to reach agreement about what such a mechanism might be. One answer based on experience elsewhere as well as the logic of the requirement for state majorities would enable state parliaments or state conventions to initiate proposals for change. This option may not find favour with the public, however, at a time of apparent disenchantment with representatives as a whole.
Other. There is no other constitutional requirement for state representation in national institutions. Even so, regard sometimes is had to the federal structure of the country in making appointments to significant institutions. The most obvious case is the Commonwealth Cabinet, in which all states invariably have at least one representative.
The position of the High Court raises different considerations. There is no constitutional requirement for state involvement in High Court appointments and no evident practice of ensuring that members of the Court are spread around the states. On the other hand, the High Court is at pains to sit from time to time in the less populous states, from which justices less often come. And since 1979 the High Court of Australia Act has required consultation with state Attorneys-General in the appointment of High Court judges.
The position of a constitutional court in a federation is a delicate one. In Australia it is complicated by the fact that the High Court is also the final court of appeal in matters of state law, unlike the Supreme Court of the United States. This underlying tension is the principal rationale for the strict separation of federal judicial power, as a means of securing the actual and perceived independence of the federal courts and, in particular, of the High Court. So far, it has proved reasonably effective for the purpose, although there are critics as well of the Court’s federalism jurisprudence.
Head of State
The question of the design of the office of Head of State raises interesting questions in a federation, whether monarchy or republic.
Monarchy. Under current Australian arrangements, Queen Elizabeth II is the formal Head of State. As Queen of Australia, she has a direct link with both the Commonwealth and the states. Within Australia, however, she is separately represented by the Governor-General and six state governors. De facto, her representatives effectively perform her entire role. And in practice they are separate from each other. The Governor-General is appointed directly by the Queen, on the advice of the Prime Minister. The Queen also appoints each Governor, on the advice of the relevant state Premier.
Despite the realities, the symbolic link between these representatives, through the Crown, provides a basis on which the use of state Governors as deputy for the Governor-General can be rationalised. While the Constitution leaves the matter open, in practice a state Governor invariably is appointed as Administrator under section 4, or as Deputy under section 126, if the Governor-General is unavailable. The formal status of the Governor-General as representative of the Crown also has blurred the significance of the fact that, at least when acting on the international stage, the Governor-General is more than the Head of State of the Commonwealth, but represents Australia in the exercise of its external sovereignty.
Republic. There is a question about how the position or positions of Head of State might be organised under a republic. The solution adopted in the referendum proposal that was rejected in 1999 was to reproduce the status quo as far as possible, subject to making alternative arrangements for the appointment and removal of a Head of State that did not involve the Queen. In consequence, the Constitution Alteration (Establishment of a Republic) Bill 1999 provided for state Governors to continue to perform the role of deputy, despite the removal of the Queen from the structure and without conceptualising any other link between the two positions. The possibility that a state Governor might, for some reason, be an unsatisfactory substitute in a particular case, was met by conferring power on the Commonwealth parliament to make alternative arrangement if it thought fit. The model did not, however, place any constraints on what the alternative might be.
Following the failure of the referendum, these issues once again are open. All three of the methods for appointment of a Head of State that were and presumably are still under consideration would confine the appointment of a President to the Commonwealth sphere alone. In other words, the President would be appointed either by a vote of the people acting nationally; or by their representatives in the Commonwealth parliament; or by the Commonwealth government of the day.
Alternatives are suggested both by Germany and by the United States. In Germany the Federal President is chosen by a body specifically constituted to represent the federation. One quid pro quo, however, is the absence of any position equivalent to that of state governor at the level of the individual states. In the United States, the cumbersome procedure for the indirect choice of a President through electors, which caught the attention of the world during the last presidential election, is driven by considerations of state representation.
It may be that, with further reflection, Australians could develop a combination of these two different options, or a variation of one of them, to suit their own history, political culture and practical needs. In any event, however, the examples of Germany and the United States suggest the relevance of considering the federal character of the country. It is not necessary for that reason alone to adopt a model in which the states are distinctively involved in the choice of President. But it is desirable at least to plan what is to happen at both levels in concert, so as to be confident that the institutional structure is complete and that the rationale for it is understood.
* Professor Cheryl Saunders AO is the Director of the Institute for Comparative and International Law and of the Centre for Comparative Constitutional Studies at the University of Melbourne. She has held a Personal Chair in Law at the University since 1989.
1. See Australian Capital Television Pty Ltd & Ors and the State of New South Wales v the Commonwealth & Anor  HCA 45; (1992) 177 CLR 106; David Russell Lange v Australian Broadcasting Corporation  HCA 25; (1997) 189 CLR 520.
2. Amendment XVII.
3. Section 7.
4. See generally Constitution Chapter I Part 2.
5. Section 57.
6. Section 29.
7. This approach obviates the need for a nexus with numbers of Senators; a surprisingly contentious issue, as the failure of the 1967 referendum suggests.
8. Sections 29, 30, 31.
9. Article I, section 2, clause 1.
10. Article I, section 2, clause 4.
11. Australia, Constitution section 127; United States, Constitution Article I, section 2, clause 3 (‘excluding Indians not taxed...’); also 14th Amendment.
12. McGinty v Western Australia  HCA 48; (1996) 186 CLR 140.
13. Most obviously, in filling casual vacancies in the Senate: section 15. See Kable v Director of Public Prosecutions (NSW)  HCA 24; (1996) 189 CLR 51, in which an argument to comparable effect succeeded in relation to state courts. Also see the supporting observations of Kirby J in Durham Holdings Pty Ltd v New South Wales  HCA 7.
14. Charter of Rights and Freedoms, section 33.
15. Constitution Alteration (Fair Elections) 1988.
16. C Saunders ‘The Parliament as Partner: A Century of Constitutional Review’ in The Vision in Hindsight (Information and Research Services Research Paper No 3 2000-2001) Commonwealth Parliamentary Research Services Centenary of Federation Project.
17. Western Australia v Commonwealth (First Territory Senators case)  HCA 46; (1975) 134 CLR 201.