This case study deals with the determination of the boundaries of electoral divisions for the House of Representatives of Australia's Federal Parliament, a process known as 'redistribution' in Australia10.
The Australian Constitution requires that the numbers of members of the House of Representatives elected from each Australian state be proportional to the populations of the states. It also stipulates that a federal electoral division cannot be formed from territory from more than one state. A consequence of these requirements is that separate redistribution processes must be undertaken to determine the boundaries of the federal electoral divisions in each state and in each territory represented in the Parliament.
The basic line of thinking that underlies the current redistribution provisions in the Commonwealth Electoral Act of 1918, which were substantially implemented in 1984, is that the legitimacy of the process can be guaranteed by attention to the following considerations:
Timing of redistributions. Provision is made for redistributions to be conducted with sufficient frequency to limit malapportionment, i.e., the inequality in the voter populations of divisions within a state or territory. In addition, the timing of redistributions is determined by law and cannot be manipulated for political advantage.
Constitution of bodies conducting redistributions. Redistributions are undertaken by politically neutral and independent bodies.
Provision for public input. The redistribution process is very public, and extensive scope exists for the views of interested individuals and bodies to be taken into account.
Criteria governing the drawing of boundaries. The bodies undertaking redistributions are required to work in accordance with well-defined and reasonable criteria which are broadly supported across the political spectrum.
Automatic implementation of redistributions. Once a redistribution has been made, it is not subject to veto at the political level, nor by Parliament.
Now consider each of these in more detail:
Timing of Redistributions
There are only three situations in which a redistribution of a state or territory represented in the Parliament can be initiated:
- when there is a change in the number of members of the House of Representatives to be chosen in the state or territory at a general election, as determined approximately two years before each general election;
- when a prescribed level of malapportionment is achieved and sustained in the state or territory;
- when seven years have elapsed since the state or territory was last redistributed.
Of the three possible 'triggers' for redistributions, change in representation entitlements has been by far the most important and has accounted for the majority of redistributions initiated since 1984. There have been no redistributions triggered by malapportionment.
The rules governing the timing of redistributions are based on objective criteria, and do not permit the government of the day any discretion with regard to the scheduling of redistributions. The rules also clearly ensure that there is a limit on the length of time that can elapse between redistributions, which has tended to limit the extent to which malapportionment can arise.
Constitution of Bodies Conducting Redistributions
A redistribution in Australia occurs in two main stages. During the first stage a proposed redistribution is produced; during the second stage objections to the proposal are dealt with and a final determination is made. Different bodies, though with overlapping memberships, are involved in the two stages.
The proposed redistribution in a state is made by the redistribution committee for the state, which consists of:
- the electoral commissioner, who is a statutory officer appointed under the Commonwealth Electoral Act of 1918, the administrative head, and one of the three members of the Australian Electoral Commission
- the Australian electoral officer for the state, who is a statutory officer appointed under the Commonwealth Electoral Act of 1918, and who heads the Australian Electoral Commission's administrative structures in the state
- the surveyor-general from the state government of the state (or, where the state has no surveyor-general, a person nominated by the relevant state minister as holding an office equivalent to that of surveyor-general)
- the auditor-general from the government of the state
The second stage in the redistribution process commences after the proposed redistribution has been published. Objections to the proposed redistribution are considered and a final determination is made by the augmented electoral commission. This body consists of the redistribution committee for the state or territory, plus the two members of the three-member Australian Electoral Commission who were not members of the Redistribution Committee, i.e., the chairperson of the commission and the so-called 'non-judicial appointee'.
There is a consensus among Australia's main political parties that the membership of the redistribution committees and augmented electoral commissions is appropriate and enables them to operate in an independent and politically neutral way.
Provision for Public Input
Extensive provision is made for public input into the redistribution process. Redistribution committees are required by law to call for public suggestions at the outset of the redistribution process, and any suggestions received are made publicly available and can be the subject of further public comment. All suggestions and comments are required to be considered.
After a proposed redistribution has been published, objections to it may be lodged. The augmented electoral commission is required to conduct a public inquiry into an objection unless the objection covers matters which were already substantially raised in earlier suggestions or comments, or is frivolous or vexatious. Submissions regarding the objection may be made at the public inquiry by the person or organisation objecting, and any person who or organisation that made suggestions or comments.
The augmented electoral commission may also invite other witnesses to appear. The augmented electoral commission is not bound by the legal rules of evidence, and in general has considerable flexibility in determining how inquiries will be conducted. Inquiries are typically held in the capital city of the state, but on some occasions in the past an augmented electoral commission has chosen to hold an inquiry in a provincial city, particularly where such an approach facilitated the examination of a controversial proposed boundary.
Having held such public inquiries as are necessary, the augmented electoral commission is required to make a further proposed redistribution. As part of that process, the augmented electoral commission must determine whether, in its view, the proposed redistribution is 'significantly different' from that put forward earlier by the redistribution committee, and then make an announcement to that effect. If the proposed redistribution is not regarded as significantly different from that of the redistribution committee, there is no provision for further objections, and the proposed redistribution is in practice reflected in the final determination made by the augmented electoral commission. If the proposed redistribution is regarded as significantly different, further objections can be lodged by individuals who or organisations that had previously made suggestions or comments or lodged objections, and a further public inquiry or series of public inquiries must be held.
The net effect
of all of these changes has been to make the redistribution process a far more
open and accountable one than was previously the case. The redistribution
committees and augmented electoral commissions have tended in their statements
of reasons to give substantial explanations of their proposals, addressing in
some detail the suggestions, comments and objections they have received. As a
result, those who made suggestions, comments or objections have been better
placed than before to appreciate why their own preferred positions may not have
been accepted. Participants at inquiries into objections have typically been
given extensive opportunities to expand on their submissions, so that the
augmented electoral commission gains the maximum benefit from their views, and
so that the participants can be satisfied that they have received a proper
hearing. As a result, argument over the substance of a particular
redistribution has tended to be talked out within the framework of the
redistribution process, rather than forming the basis for on going questioning
of the legitimacy of a particular redistribution.
It is also
notable that notwithstanding the extensive provision made for public input, the
redistribution process is one that can be undertaken relatively expeditiously.
Criteria Governing the Drawing of Boundaries
The criteria governing how boundaries are to be drawn by the redistribution committees and augmented electoral commissions are fully spelled out in the Commonwealth Electoral Act of 1918, and are as follows:
(a) The State or Territory must be distributed into a number of electoral divisions equal to its representation entitlement in the House of Representatives as most recently determined.
(b) A quota is determined by dividing the State or Territory's total electoral enrolment as at the end of the period for the lodging of comments by its representation entitlement in the House of Representatives. An electoral division which deviates in enrolment from the quota by more than 10 percent cannot be proposed.
(c) Subject to rules (a) and (b), the Redistribution Committee or augmented Electoral Commission must, as far as practicable, endeavour to ensure that the boundaries of the electoral divisions are such that the number of electors enrolled in each division will not, at the point three-and-a-half years after the redistribution has come into effect, be less than 98 percent nor more than 102 percent of the average divisional enrolment for the State or Territory at that time.
(d) Subject to rules (a), (b) and (c), due consideration must be given, in relation to each proposed division, to:
(i) community of interests within the proposed division, including economic, social and regional interests;
(ii) means of communication and travel within the proposed division;
(iii) the physical features and area of the proposed division; and
(iv) the boundaries of existing divisions.
These criteria are heavily numerical and to a considerable extent objective. The relative importance of the main criteria is clearly defined in the legislation, and is not a matter in which the bodies conducting redistributions have any significant discretion.
It should be noted that those bodies are not required to take any account of the possible partisan implications of redistributions, and in fact they have not done so.
Automatic Implementation of Redistributions
Under current provisions, the determination made by an augmented electoral commission is final and cannot be vetoed at the political level. It is also not subject to judicial review, except on very limited constitutional grounds.
Concluding Comments
The emphasis in the current scheme is very much on the legitimacy of processes rather than specific outcomes. It is generally believed that if the mechanisms leading to a specific redistribution are acceptable, then the redistribution itself will be accepted, even by participants in the electoral process who see themselves as being disadvantaged by it. The history of the last ten years has tended to bear out that point of view.
Federal redistributions have largely ceased to be subject of partisan debate. The Australian approach can be contrasted with that which is adopted in the United States. In the United States, the concept of the apolitical civil servant is not always regarded as credible, and redistributions have tended to be conducted on an overtly partisan basis. The legitimacy of redistributions in the United States has, therefore, been analysed by reference to postulated outcomes much more than by reference to processes.
In addition, the legal provisions governing redistributions are precisely drafted, are detailed, and give relatively little scope for discretion in their implementation. Some might see this as a disadvantage; but a contrary argument can be made, to wit, the current provisions represent a political and community consensus reached after painstaking consideration some fourteen years ago. Particular outcomes can be seen to be the product of the application of enduring principles rather than less well-defined ad hoc considerations. These factors have arguably enhanced community acceptance of the process.
