§ 106. “Twice the Number of the Senators.”

There is a constitutional limit to the number of members of the House of Representatives, viz., that it shall be, as nearly as practicable, twice the number of the senators; in other words there must be two representatives to one senator. This provision was described in the course of the Convention Debates as the “two to one ratio.” In this respect, the rule regulating the numerical strength of the Australian House of Representatives differs both from that of the American House of Representatives and from that of the Canadian House of Commons.

Under the American Constitution the first House of Representatives consisted of 65 members, of which there was one for every 30,000 of the qualified inhabitants. Congress was given general power to apportion representatives among the several States according to their respective numbers, and could therefore increase the number of representatives without reference to the number of senators. This power was subject to one

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limitation; viz., that there should never be more than one representative for every 30,000 inhabitants. After the census of 1790 the first Congressional apportionment took place. The number of representatives was increased to 106, which, divided among the aggregate population, gave one representative for every 33,000. After the census of 1810 the number of representatives was raised to 183, which, divided among the population, gave one for every 35,000. In 1820 the number of representatives was was brought up to 213, which gave one to every 40,000. In 1830 the representatives were increased to 242, or one for every 47,700. In 1840 the representatives were reduced to 223, or one for every 70,680. In 1850 the representatives were increased to 233, or one for every 93,000. (Sheppard's Constitutional Text Book, 1863.) In the latest Apportionment Act, based on the census of 1890, the number of representatives was fixed at 357, which gave one representative to every 173,900. (Statesman's Year Book, 1899, p. 1130.) So, as the population went on increasing, the number of members to divide among the population has from time to time increased. The increase of members, however, does not proceed in proportion to the increase of the population. The proportion of representatives to population has been gradually diminished, from one representative for every quota of 30,000 in 1789, to one representative for every quota of 173,900 in 1890.

The British North America Act, 1867, sec. 37, provided that the Dominion House of Commons should at first consist of 181 members, of whom 82 were assigned to Ontario, 65 to Quebec, 19 to Nova Scotia, and 15 to New Brunswick. By sec. 52 of the same Act power was given to the Parliament of Canada to increase the number of the members of the House of Commons, subject, however, to the condition that the proportionate representation prescribed by the Act should not be thereby disturbed. The basis for re-adjustment after each decennial census is that Quebec shall always have the fixed number of 65 members, and that each of the other Provinces shall be assigned the number of members which bears the same proportion to its population as the number 65 bears to the population of Quebec—a fractional part exceeding half a quota being regarded as a whole quota. (See p. 445, supra.)

On the basis of the census of the Dominion taken in April, 1891, and in accordance with a redistribution bill passed in 1892, the House of Commons consists of 213 members—92 for Ontario, 65 for Quebec, 20 for Nova Scotia, 14 for New Brunswick, 7 for Manitoba, 6 for British Columbia, 5 for Prince Edward Island, and 4 for the North-West Territories. The ratio of members to population is now one to 22,688. (Statesman's Year Book, 1899, p. 221.)

In the Draft Bill of 1891 it was provided (as in the Constitution of the United States) that there should be one representative for every 30,000 of the population of the Commonwealth, but that this quota should be alterable by the Federal Parliament; there was no provision made for any maximum number of members. As the population increased, the representation could be increased by an additional member for every 30,000.

It has been estimated that, if the Commonwealth had been established in 1897 and the House of representatives constituted on the basis of one member for every 50,000 of the population, that House would have consisted of about 71 members, of which New South Wales would have had 26, Victoria 24, Queensland 9, South Australia 7, Tasmania 3, Western Australia 2. In 1901, on the assumption that the past rates of increase of population continued, New South Wales would have 32, Victoria 27, Queensland 13, South Australia 9, Western Australia 4, and Tasmania 3, total 88. According to the same average of increase the House of Representatives would, by the year 1941, have a total of 446 members. (Mr. R. E. O'Connor, Conv. Deb., Adel., 1897, p. 685.)

This Constitution places no limit on the power of the Parliament to increase the size of the House of Representatives, except that the Senate must be increased in the same proportion, so as to preserve the “two to one ratio.” It, however, effectually prevents any such rapid automatic increase as is foreshadowed in the calculations above

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referred to. The number of representatives depends upon the number of senators, and the number of senators does not increase automatically at all. The number of senators may, however, be increased in two ways—either by increasing the number of senators for each State or by increasing the number of States.

The Parliament may increase or diminish the number of senators for each State, provided that equal representation of the original States shall be maintained and that no Original State shall have less than six senators (sec. 7). The number of senators may also be increased by the admission or establishment of new States (sec. 121). There are thus two methods by which the number of senators may be increased; (1) by an Act of the Federal Parliament increasing the number of senators for each existing State, and (2) by an Act of the Federal Parliament, admitting or establishing a new State or States and thus introducing additional senators. Accordingly, though apparently the number of representatives is determined by the number of Senators, yet the fact that the number of senators may be increased to any extent by the Parliament makes the number of the House of Representatives equally elastic (see Note, § 1–16, infra).

This “two to one ratio” is a rigid element and basic requirement of much importance and significance; it is embedded in the Constitution; it is beyond the reach of modification by the Federal Parliament, and can only be altered by an amendment of the Constitution. It was adopted after due consideration and for weighty reasons. It was considered that, as it was desirable, in a Constitution of this kind, to define and fix the relative powers of the two Houses, it was also but fair and reasonable to define their relative proportions, in numerical strength, to each other, so as to give that protection and vital force by which the proper exercise of those powers could be legally secured. It was considered extremely necessary to prevent an automatic or arbitrary increase in the number of members of the House of Representatives, by which there would be a continually growing disparity between the number of members of that House and the Senate; and to give some security for maintaining the numerical strength, as well as the Constitutional power, of the Senate. It was argued that if the number of the members of the Senate remained stationary, whilst the number of the members of the House of Representatives were allowed to go on increasing with the progressive increase of population, the House would become inordinately large and inordinately expensive, whilst the Senate would become weak and impotent. It was said that to allow the proportion of the Senate towards the House of Representatives to become the merest fraction, would in course of time lead practically to the abolition of the Senate, or at any rate, to the loss of that influence, prestige, and dignity to which it is entitled under the Constitution. In reply to the argument founded on the danger of disparity, arising between the number of members of the Senate and the number of members of the House of Representatives, attention was drawn to the Constitution of the United States of America under which Congress had unlimited power to increase the number of members of the House, without increasing the number of senators; which power had not been recklessly or improvidently exercised. The power and status of the Senate had not been prejudiced by the gradual increase in the number of representatives. In answer to this, it was contended that the Senate of the United States of America had maintained its position in the Constitution largely owing to its possession of certain important judicial, legislative and executive powers, which had not been granted to the Senate of the Commonwealth, such as the sole power of trying cases of impeachment; the power to ratify or to refuse to ratify treaties made by the President with foreign nations; and the power to refuse to confirm executive appointments made by the President. These powers were the main sources of the strength of the American Senate, which prevented any wide disparity in numbers between it and the House of Representatives from causing it to drift into the insignificance of a small committee or board. The Senate of the Commonwealth, being deprived of such powers, should be protected against the danger of disparity in numbers. As regards the necessity, which might hereafter arise, of increasing the number of representatives to meet the demands of an increased and

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increasing population, it was not likely that the Senate would deny an increase in the House of Representatives when it secured an increase itself. (Conv. Deb., Adel., pp. 435-7, 683-98; Sydney, pp. 429-52.)