McGinty v Western Australia, was a significant case decided in the High Court of Australia in 1996. The plaintiffs sought to enshrine the principle of ‘one vote one value’ in the Australian Constitution, and has had a significant impact on how the High Court approaches matters of the franchise, as well as malapportionment. The plaintiff's submissions were unanimously rejected by the court, who found that the interpretation of sections 7 and 24 of the Australian Constitution did not require that all votes hold the same value. The High Court exercised its original jurisdiction in hearing the matter, meaning that the case did not need to proceed as an appeal from the Supreme Court of Western Australia.
Background
Western Australian elections
The Western Australian Legislature is made up of a bicameral parliamentary system, a legislative council and a legislative assembly, established in 1890. By 1996 the assembly had 57 members, which were divided between 34 metropolitan seats, clustered in Perth, and 23 rural electoral divisions. The Electoral Distribution Commission determined the borders and number of electors in each division, guided by the Electoral Districts Act 1947 (WA) as amended by the Acts Amendments (Electoral Reform) Act 1987 (WA), which required that each area contain an equal number of electors plus or minus 15 per cent.
Western Australia is the largest state in Australia, comprising 2,529,875 square kilometres (976,790 sq mi), and by 2014 73% of the population lived in the capital of Perth. At the time of the enactment of the 1987 amendments 669,293 voters were enrolled in the metropolitan and 240,081 in the remainder of the state. As a result, in the 1993 elections the largest district for state electors held 291% of the number of electors in the smallest electorate. This is the phenomenon known as malapportionment, where there are significant divergences in the number of electors in electorates, leading to an unequal value of each vote. This should be distinguished from gerrymandering, which is a partisan manipulation of the borders of electorates to ensure an outcome.
The 1987 Amendments to the Electoral Districts Act 1947 (WA) also changed the way the legislative council, the state's upper house, was comprised. There were 34 available seats, which were distributed amongst six regions; "North Metropolitan Region (7 members), South Metropolitan Region (5 members), East Metropolitan Region (5 members), South West Region (7 members), Agricultural Region (5 members) and the Mining and Pastoral Region (5 members)". The populations of the regions for the 1993 election were; "North Metropolitan 34,161; South Metropolitan 33,876; East Metropolitan 32,822; South West 13,721; Agricultural 13,161; Mining and Pastoral 9,097". The disparities resulted in the North Metropolitan Region holding 376% of the population in the Mining and Pastoral Region, while only having two extra seats.
The arguments
The questions to be resolved in
"(i) Is Section 6 of the Constitution Acts Amendment Act 1899 (WA) invalid?
(ii) Are Sections 2A(2), 6 and 9 of the Electoral Distribution Act 1947 (WA), or any of them, invalid?
(iii) If any of the Sections 2A(2), 6 or 9 of the Electoral Distribution Act 1947 (WA) is or are invalid, is it or are they severable and, if so, to what extent?"
The Plaintiffs argument rested on two primary grounds;
Representative democracy requires,
That every person with capacity have the right to vote; and
That each vote should be equal in importance.
The nature of this definition implies that there must be some restriction on voting, the determination of capacity is left to the legislature. The Plaintiffs argued that both the Commonwealth and Western Australian constitutions required that representative democracy be the starting point of any government structure in Australia. Brennan CJ noted that;