Research Report 4 - Australian Federal Redistributions 1901-2003: Legislative changes affecting redistributions

Updated: 30 May 2013

Legislative changes affecting redistributions

Introduction

Since the introduction of the first Commonwealth electoral act in 1902, legislation remained relatively constant until the passing of the 1983 amendments to the Commonwealth Electoral Act 1918. Redistribution procedures were prescribed in a number of amendments to Commonwealth electoral legislation. To fully understand the amendments of 1983, and subsequent years, in context, it is first necessary to outline the provisions applying to redistributions before then. The following is a brief description of redistribution provisions and amendments prior to the 1983 changes

Brief summary of legislative changes (1900–1983)

Australian Constitution

Section 24 sets out the method of establishing the number of Members of the House of Representatives to be elected in each State.

A quota is ascertained by dividing the number of people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of Senators. The number of Members for each State is determined by dividing the number of people for the State, as shown by the latest statistics of the Commonwealth, by the quota. Where there is a remainder greater than one-half of a quota, one more Member shall be chosen.

Commonwealth Electoral Act 1902

Although this was the seminal federal Electoral Act there is no reference to the numbers of Members or numbers of people of the Commonwealth in this Act.

Representation Act 1905

This Act set up Enumeration Days which were deemed to be the day on which any census of the people of the Commonwealth was taken. The Chief Electoral Officer (CEO) is also entitled to set up other Enumeration days as follows: The first enumeration day shall be appointed as soon as possible after the commencement of the Act and after the first census taken after the commencement of this Act an enumeration day shall be appointed at the expiration of every fifth year after the preceding enumeration day.

A Certificate of the numbers of people (Schedule B) was done on Enumeration Day and sent to the Minister, then laid before both Houses, and gazetted forthwith. Once completed, the CEO would immediately determine the numbers of Members and forward a notification to the Minister.

Representation Act 1916, amended previous Act to Representation Act 1905–1916

Amendments cancelled the Enumeration Day scheduled for 1916 on the basis that the only change would have been that SA would have lost one seat by a small margin and the enumeration might not be fair with so many men away at war.

Representation Act 1930, amended previous Act to Representation Act 1905–1930

Amendments cancelled the Enumeration Day scheduled for 1930 because of the postponement of the 1931 Census till 1933.

Representation Act 1938, amended previous Act to Representation Act 1905–1938

Amendments removed the requirement to have an Enumeration Day five years after each Census. From 1931, the requirement to hold a Census in the first year of every decade was waved and Censuses were held in 1933, 1947, 1954 and 1961. From 1961, a Census has been held every five years. It also removed the need to apply a formula (previously Schedule A to the Act) to adjust for likely emigrations from and immigrations to particular states when producing a certificate of the numbers of people of the states and the Commonwealth.

Representation Act 1948

This was a new and additional Act increasing the number of Senators to ten for each original state, thereby increasing the Members of the House of Representatives for the states to 120. It did not alter the provisions of the Representation Act 1905–1938.

Representation Act 1964, amended previous Act to Representation Act 1905–1964

Amendments permitted an increase in the number of Members for a particular state when the proportion exceeded a quota, rather than a quota and a half as previously. The 1961 determination of entitlements by the Chief Electoral Officer was set aside.

Representation Act 1973, amended previous Act to Representation Act 1905–1973

Amendments clarified that the people of the Commonwealth does not include the people of any territory. The certificate of the Chief Electoral Officer showing the people of the Commonwealth and of the several states was to be laid before each House of the Parliament within fifteen sitting days.

The permissible variation in the number of electors in a division was reduced from 20% to 10% by the Commonwealth Electoral Act (No 2) 1973.

Representation Amendment Act 1977, amending Representation Act 1905

(the naming convention for Acts had changed to refer to original year only)

This Act provided that the Chief Australian Electoral Officer was to make a determination of the numbers of people of the Commonwealth and the several states in the twelfth month of each House of Representatives. The entitlement to a gain of a seat reverted to those instances when a state exceeded a quota and a half.

First Mandatory Requirement introduced

The Commonwealth Electoral Amendment Act 1977 (No 14 of 1977) introduced a mandatory requirement for a redistribution into Commonwealth electoral legislation for the first time. Prior to this amendment redistribution requirements were non-mandatory. The Amendment required that a Proclamation directing a redistribution of a State shall be made if there was an alteration to the number of members of the House of Representatives to be chosen for the State. The Representation Amendment Act 1977 (No 16 of 1977) specified that each State's entitlement was to be determined in the twelfth month of the life of a House of Representatives.

Non-mandatory grounds for a redistribution

The 1977 legislation also included two non-mandatory grounds for a redistribution:

  1. Whenever in one-fourth of the Divisions of a State the number of electors differed for a quota (average divisional enrolment) by a greater extent than one-tenth more or one-tenth less, and
  2. At such times as the Governor-General thinks fit.

Redistributions were conducted by special Distribution Commissioners appointed for the purpose by the Governor-General. The Distribution Commissioners were required to invite written suggestions and written comments on suggestions.

In drawing boundaries the Commissioners were to ensure that in no case shall the number of electors in a proposed Division be greater than one-tenth more or one-tenth less than the quota. A form of rural weighting was reintroduced by the 1977 amendment with the inclusion of a clause that the number of electors in territorially large Divisions (area of 5000 square kilometres or more) shall not be smaller than the number of electors in territorially small Divisions (area of less than 5000 square kilometres).

After due consideration and allowing for comment on proposed boundaries the Distribution Commissioners should prepare a report for the Minister. The Minister was required to lay the report before both house of Parliament for consideration. Parliament could approve, disapprove or request a fresh distribution. If both house of Parliament passed a resolution approving the proposed distribution the Governor-General would, as soon as practicable, proclaim the names and boundaries of Divisions.

Brief summary of legislative changes (1983–1998)

1983 Amendments

In 1983 the Joint Select Committee on Electoral Reform issued a report proposing sweeping changes to Commonwealth electoral legislation. The Committee's recommendations formed the basis for the Commonwealth Electoral Legislation Amendment Act 1983 (referred to as the 1984 changes as the legislation came into effect in 1984). A comparative table of the most significant changes (1977–1998) is in appendix four.

The 1983 Act fundamentally changed the way Commonwealth electoral redistributions are conducted. The most important changes were:

  • inclusion of a requirement for a redistribution to be held at least every seven years
  • removal of the Government's discretion to hold a redistribution
  • removal of the requirement for Parliamentary approval of a redistribution,
  • abolition of rural weighting
  • insertion of an enrolment projection criteria, and
  • insertion of provisions for a mini-redistribution

The effect of the 1983 amendments was to remove the possibility of partisanship from the redistribution process by establishing mandatory grounds for triggering redistributions and by removing the government's discretion as to holding or not holding a redistribution. The impartiality of the process was further enhanced by removing the requirement for the Parliament to approve or disapprove a redistribution.

Three Mandatory Triggers

The 1983 amendments established three mandatory triggers for a redistribution in a State or the ACT:

  • When there is an alteration to the number of members of the House of Representatives that a State or ACT is entitled to (entitlements criterion)
  • When the enrolment in more than one-third of the Divisions of a State or the ACT vary from the average divisional enrolment by a greater extent than one-tenth more or one-tenth less for more than two months (malapportionment criterion)
  • If a period of 7 years has elapse since the State or the ACT was last redistributed (seven-year criterion).

It is worth noting that of the 27 redistributions commenced in the States and Territories from 1983 to 2003 none have been triggered by the malapportionment criterion.

Numerical Requirements

Since the 1983 amendments the overriding consideration for Redistribution Committees has been one of complying with the strict numerical requirements. The 1983 amendments required that Redistribution Committees draw boundaries so that no division varied by more than ten percent above or below the quota at the time of the redistribution and to endeavour to ensure that, as far as practicable, three and a half years after the redistribution the number of electors enrolled in each division would be equal.

The insertion of the enrolment projection criterion placed a considerable burden on Redistribution Committees to accurately project future enrolments. Within the strict enrolment criteria the Redistribution Committees were to give due consideration to the following: community of interests, means of communication and travel, trend in population changes, physical features and area, and existing boundaries. After due consideration of suggestions and comments the Redistribution Committee prepares a set of proposed boundaries. The proposed boundaries are then subject to a further round of comment and submissions. Consideration of these comments and submissions is undertaken by an augmented Electoral Commission that makes the final determination on the redistributed boundaries. Approval by Parliament is no longer required.

Mini Redistribution Amendment

The 1983 amendments inserted a provision for a mini-redistribution to occur if an election was called and the number of divisions in a state or the ACT is different from the number of divisions it is entitled to. The mini-redistribution involved arranging all the contiguous pairs of divisions in the state or ACT in order of their enrolment. If a state is entitled to an additional division then the pair of contiguous divisions with the greatest enrolment are divided into three divisions. If the state or ACT is entitled to one less division then the pair of contiguous divisions with the least enrolment are combined. The mini-redistribution provision was inserted to overcome the difficulties in administering the previous requirement for an election at large (State as one electorate) if there was a discrepancy between the number of divisions in a State and the State's entitlements.

1987 Amendments

The enrolment projection criterion was eased by amendments to the Act in 1987 that reduced the onus on the Redistribution Committees to achieve equality in future enrolments. With the 1987 amendments Redistribution Committees were required to endeavour to ensure that, three and a half years after the redistribution, the number of electors in each proposed division would not be less than 98% or more than 102% of the average divisional enrolment. As a consequence of the easing of the projection criterion the requirement for the Redistribution Committee to give due consideration to the trend in population changes in the State was removed.

1998 Amendments

In 1995 the Joint Standing Committee on Electoral Matters conducted an inquiry into the redistribution provisions of the Act. A number of the Committee's recommendations were implemented in amendments to the Act in 1998. The amendments covered the projection time for enrolment projections, the time at which enrolment projections are to be made available, the allowable tolerance for enrolment projections, and the matters for consideration.

The strict numerical criteria specified in section 66 of the Act ensure that redistributions carried out under this legislation are first and foremost mathematical exercises and can often inhibit due consideration of other qualitative criteria. In an attempt to make the process more flexible the Act was amended in 1998.

New Provision

The 1998 amendments inserted a new provision (Section 63(A)) into the Act that allows the Electoral Commission to vary the end period for enrolment projections if the Commission is of the opinion that the State or ACT will or may require a further redistribution as a result of a change in entitlements sooner than seven years after the starting date for the projection. This provision was used in the redistribution of South Australia in 1999.

The amendments also allow the Electoral Commissioner to determine the quota for a state or ACT as soon as practicable after the redistribution commences (Subsection 65(2)). Prior to this amendment the quota was determined 14 days after the closing date for written submissions. Thus submissions had to be prepared in ignorance of the quota requirements.

Increased Allowable Variation

An additional amendments section 66 (3)(a)) further eased the enrolment projection requirements by increasing the allowable variation from the average enrolment at the projection date from 2% to 3.5%. Thus the projected enrolment for divisions can now vary from the average by not less than 96.5% and not more than 103.5%. The matters to be considered by the Redistribution Committee were also altered to make the boundaries of existing divisions subordinate to the other matters to be considered (Subsection 66 (3A)).

Determination of Entitlements

During the period 1983 to 1998 a number of minor changes have been made to the date when a determination of entitlements is to be made.

Under the Representation Act 1977 a determination of each States' entitlements was to be made within 30 days of the expiration of a period of eleven months after the date of first meeting of a House of Representatives.

The 1983 Act changed the allowable time period for making the determination from 30 days to one month.

The 1987 Act changed the date when a determination was to be made from eleven months after the first meeting to nine months. This time period was increased from nine months to twelve months by the 1998 Act, so that the determination is made in the 13th Month of the new Parliament

Northern Territory

Although the Northern Territory is not explicitly mentioned in the redistribution provisions outlined above, these provisions apply to the Northern Territory by virtue of an amendment in 1990 Electoral and Referendum Amendment Act 1989, No 24 of 1990.