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Ronald McCallum
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Antony, I have a couple of questions for you in regards to Section 24 and Section 128. First, the relevant portion of Section 24 is the following: "The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner: (i) a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators; (ii) the number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one‑half of the quota, one more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State." My question is that if a Constitutional Referendum under Section 128 is called to amend that part of Section 24, which requirement of Section 128 applies: The General Amending Formula: "And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor‑General for the Queen’s assent." OR does the State's Right to Proportionate Representation Sub Section apply: " No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law." In my humble Canadian layman's opinion, the latter should apply as Section 24 does talk about the proportional representation of the States in the House of Representatives. Second, in previewing the "post", I was reminded that there was that "until the Parliament otherwise provides," open-ended clause in Section 24; which arises a second question, to what extant could the Parliament of the Commonwealth legislate without violating the States' proportionate representation in the Commonwealth Electoral Act as amended? Sincerely, Ronald A. McCallum, B.A. (History and Political Science) COMMENT: I'm actually drafting a post on the Section 24 formula at the moment. It was one of the subjects of McKellar's case in 1977 that overturned a provision where the Parliament had gone beyond the formula in Section 24 and granted an extra seat whenever a state had beyond a quota, not beyond half a quota. The High Court ruled this departed from the state House seats being twice the number of state Senate seats in an unacceptable way. The extra paragraph of S128 would apply to any attempt to vary state equal representation in the Senate. I suspect it would only apply to the House where there was an attempt to remove the minimum five seats provision.
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Antony, I am not sure that this comment belongs on this blog, but last year Yappo asked me how redistribution works in Canada in your blog column, http://blogs.abc.net.au/antonygreen/2014/07/double-dissolutions-and-the-redistribution-timetable.html. Approximately every ten years, Federal Electoral Boundaries Commissions are appointed, one for each province. A Justice of the Province's superior or appeal Courts is appointed as Chairman by the Chief Justice of the Province, and two citizens are appointed for their expertise by the Speaker of the House of Commons. They then go through the usual process of proposing new and publishing electoral maps in the media, hold public hearings throughout their province, study, analyze and possibly revise their recommendations, and forwarded them to the House of Commons for input from the Members of House of Commons - Members of Parliament. The Commissions then collate, study and analyze all the responses and finally finalize their recommendations to the Chief Electoral Officer of Canada. The Chief Electoral Officer prepares a Representation Order which then proclaimed by the Governor General-in-Council through the CANADA GAZETTE and other media. In 2013, there were robocalls in Saskatchewan coming from the Conservative Party of Canada, which wanted the people to persuade the Federal Electoral Boundaries Commission for Saskatchewan to overturn their proposals are separate distinct electoral districts in the two largest cities, Regina and Saskatoon, and retain the existing electoral districts that combine rural areas with small areas of those cities, which allowed the Conservatives to prevail in the First Past The Moveable Post elections. The Federal Electoral Boundaries Commission retained their initial proposals and now Regina and Saskatoon have just urban only electoral districts. Therefore, I think that Canada and Australia have excellent non-partisan processes of redistribution for our legislative electoral districts. Canada gets the entire process of redistribution across Canada done at once, while Australia does it on a state by state basis. I do think that having the Surveyor General of Australia, a position comparable to Canada's position of Chief Statistician, removes the process further from partisan politics. For further information, please check out the Federal Redistribution website and CBC stories: http://www.redecoupage-federal-redistribution.ca/content.asp?document=home&lang=e http://www.cbc.ca/news/politics/conservatives-admit-making-robocalls-in-saskatchewan-1.1304586 http://www.cbc.ca/news/politics/pm-cites-overwhelming-opposition-to-saskatchewan-riding-changes-1.1335544 I am sorry that I didn't get back to you earlier, but I had technological problems right after that conversation, and the timing wasn't right. Your Canadian fan, Ronald A. McCallum COMMENT: Australia does it redistributions state by state as the Constitution has a formula that automatically changes the numbers of members to be elected from each state. Until the 1970s redistributions took place in all states at the same time after each Census. In the 1950s and 1960s two redistributions were rejected by the Parliament, which at the time had the final yes/no say to the boundaries. The High Court ruled in the 1970s that if a state was entitled to more members under the constitution, it must elect that many members at the next election even if the parliament rejected the proposed boundaries. The Parliament had to enact legislation to allow this. In 1984 the current procedures were adopted. A determination is made one year after election on the number of members for each state, and if they change, there must be a redistribution in that state, with a mini-redistribution process set out if an election was called before an early election. There is also a seven year rule so that boundaries are reviewed even if numbers do not change. A third trigger for redistributions is that enrolment numbers have become malapportioned since the last redistribution, but this provision has never been required.
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Hello Antony, You might want to bring Yappo up to date with Constitutional requirements as per amending Section 24. S/He made the following statement: "Such an overhaul process could also dispense with the need of s24 (ii) requiring 5 seats for an originating state, ie. Tasmania. . ." Yappo might want to read up Chapter VIII - Alteration of the Constitution, Section 128 - Mode of altering the Constitution, especially the fifth paragraph: " No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law." Somehow, I don't think that the people of the State of Tasmania will be willing to consent to a Constitutional amendment proposal that reduces their minimum number in the House of Representatives. Also, any Constitutional amendment to enact Yappo's radical idea that "after over 100 years of Federation we could actually dispense with the notion that Commonwealth seats must be only allocated only within state boundaries," will require, in my layman's opinion, the consent of the people in EACH Federated "Original" State in accordance with the same fifth paragraph. Overall, I enjoy your blogs very much. Your Canadian fan and interested observer in Constitutional and Political issues, Ronald A. McCallum
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Jul 14, 2014