Logic of ‘voter equality’ drives WA electoral reform
An inquiry into defects in the way the Western Australian Legislative Council is elected has produced a most unusual reform report, and could see the state create possibly the world’s most democratic legislative chamber.
The Council – the upper house of the state Parliament – has for a few decades used a system of STV (single transferable vote) voting within six geographic regions – three covering the state capital Perth, and three covering the entire remainder of the vast state, making up the western 33% of the Australian continent.
But the current six electoral regions have very different populations, making the result one of the world’s most striking cases of malapportionment.
Around 90% of the state’s population lives in the south-west corner, with around 80% in the city of Perth. But the six state electoral regions do not map proportionally onto resident population numbers.
As the report states, the vote of a voter resident in the ‘Mining and Pastoral’ region is ‘worth’ over 6 times the vote of a resident of metropolitan Perth.
This bias, known as regional vote weighting, has been a feature of several of the Australian states throughout the nation’s history, but was largely abolished by the 1980s. WA remains the only state to significantly use such weighting in its elections.
The Ministerial Expert Committee to review the situation was made up of former State Governor Malcolm McCusker AC and three legal and political scholars, and had no politically partisan members.
The Committee was charged with developing recommendations for reform, targeting the issue of voter equality of influence, specifically “how electoral equality might be achieved for all citizens entitled to vote”. Their report released yesterday does precisely that.
The report opens by facing the question “how to achieve electoral equality for all citizens entitled to vote for the Legislative Council. This requires all electors’ votes to be of equal value.”
The report settles almost immediately on the conclusion that only “a Whole of State electorate would produce complete electoral equality, which the Terms of Reference mandate.” (p.11)
Personally, it’s nice to see the report quote my own submission as the basis for this conclusion:
“This is literally the only option to create equality, because any approach which does not declare that it takes the same number of votes to elect a member is, by definition, not conferring equality in terms of vote weight.”
“This state-wide common quota option is essentially what currently happens in each 4-yearly half-Council election for the New South Wales and South Australian Legislative Councils. [A]s such, an established and tested Australian model is available for easy adoption in Western Australia.” (p.12)
The review rejected, however, using the staggered two-term approach as in NSW and SA, advising that 8-year terms of office were too long for political accountability of the MLCs to the electorate.
The ‘whole-of-state’ recommendation has surprised many observers – frankly, including me. Most of us expected a proposal for the retention of some system of regional electoral divisions, but supported by rules for regular reviews of boundaries, or of adjusting allocated seat numbers, so that by keeping seat numbers in rough proportion to population, there would be some rough ‘approximation’ to voter ‘equality’.
The report goes to some length to explain why it rejected regional divisions. After weighing several options, it concluded that while:
“…[they]would all be a significant improvement on the current system, by achieving approximate electoral equality while retaining a form of proportional representation in the Legislative Council, each regions-based option has [a number of] disadvantages [including that it] …delivers, most importantly, a lower standard of electoral equality compared to a Whole of State electorate model.” (p.26)
The Committee dealt rather bluntly with submissions which called for the retention of regional vote weighting:
“The Terms of Reference require the Committee to examine how (not whether) to achieve electoral equality, so the Report does not engage with those arguments. … [and later adding] Submissions that supported continuing the current regions-based model that involved regional vote weighting were not considered. … the Committee’s Terms of Reference require it to examine ways to achieve electoral equality. The Committee has therefore only considered regions-based models which are directed towards that objective.” (pp.9, 19)
The report also clearly concluded that the methodological basis for the elections, the current single-transferable vote (STV) system – must be retained. It considered briefly the notion of using ‘party list’ seat allocation alternative systems:
“One possible solution would be to introduce a completely different counting method, as is used internationally, such as [the party list systems using] D’Hondt or Sainte-Laguë [allocation formulae]. These methods do not include preferential voting however, so each would remove the right of electors to allocate their own preferences.
There are two reasons why these options are not favoured by the Committee. The first is that the Committee is providing options for increasing voter control over their own preferences, but these options would reduce voter control. The second is that … the Constitution Act 1889 … entrenches the requirement that ‘members’ be ‘chosen directly by the people’.” (p.35)
The last point has a long-term and broader importance for Australian electoral law. It has been widely assumed that the phrasing “chosen directly by the people”, used in the Australian federal Constitution and several of our state constitutions, provides a legal barrier to adopting party list electoral systems. The issue has never been directly tested by our courts, but this report adds further to the argument’s weight.
The report further supports its key conclusion by emphasising the goal of providing voters with lots of choice:
“Under a Whole of State model, the vast majority of seats would be filled by groups or candidates reaching a quota. This model would maximise the choices available to voters, as they could vote for any group or candidate standing for election to the Legislative Council, across the state.” (p.12)
A few submissions had proposed system alternatives such as the MMP (‘mixed-member proportional’) variant of party list systems, combining some single-member electorates with extra seats given to party lists to make the overall chamber party-proportional. These options also were rejected, given their failure to meet the test of vote equality:
“[W]e asked for submissions on “whether any other electoral model, not covered in this Discussion Paper, is better suited to achieve electoral equality. … The Committee is of the view that none of these other models would satisfy the objectives of the Terms of Reference.” (p.62)
Finally, the report also called for the abolition of the much-maligned ballot paper design device of ‘group voting tickets’, under which political parties can invite voters to adopt a full preference sequence of all candidates of the party’s choosing. The approach, used in some Australian elections since 1984, has come to be widely manipulated, and was abolished from Australian Senate elections from 2016.
The GVT device still has defenders among some micro-parties, because it helps them wrangle their way to winning seats, but most observers (me included) feel that this path to electoral success is too seriously lacking in genuine voter choice.
If the GVT device is abolished in WA, only the Victorian upper house will still use the method. The debate there has become rather entrenched, with the multi-coloured and diverse crossbench elected under the approach in 2018 staunchly defending the system continuing.
Practical issues
Observers are already eying warily the prospect of physically large ballot papers. Leading Australian elections commentator Antony Green comments here, and Ben Raue is here.
The report anticipates the problem, but is sanguine in accepting it as a trade-off necessary to deliver the ideal of voter equality that it was charged to consider.
The report does make additional recommendations aimed at ensuring that the ballot papers are not flooded with large numbers of minor candidates. There are proposed requirements for significant underlying memberships for registered parties (500 voters), signature requirements for independent candidates and for groups of candidates to use a single ballot paper column, and so on. These proposals are aimed at obliging candidacies to take significant action at the community grassroots level to organize politically in advance of elections. Were such laws introduced very close to an election, they might be unreasonable, but the next Council election is over three years away, leaving plenty of time to prepare for what is a much more democratic system of election. Independents will still be able to nominate with a basic level of local support.
There does remain the issue that WA is a physically enormous state, with very distinct regional interests. Political parties both large and small will still need to offer regional candidates and campaigns to focus votes if they are to maintain regional presences. But that is true now under the current electoral system. What would go is the unfair inequal weighting in favour of regional voters, which was the very thing the review was tasked to address.
Conclusion
Overall, the WA Ministerial Expert Committee Report expressly recommends that future Legislative Councils be elected using a single state-wide election conducted under STV rules, and using optional preferencing.
If legislated, the Council would become arguably the most democratic parliamentary chamber in the world, with extensive voter choice of direct representation by many candidates, with options from within or across party candidate lists, and effectively equal vote-weight influence for all voters.
At 37 seats, and with accountable 4-year terms, it would exceed in democratic credentials the NSW Legislative Council, made up of two separately elected groups of 21 members elected in two 4-year cycles for 8-year terms. (Most Australian jurisdictions hold elections on fixed four-year cycles.)
Future Council election results, as well as being fair to all voters, will be politically defensible. The balance between government and opposition seat numbers for the major parties will be right, small parties such as the Greens will receive reasonable representation, and micro-parties and independents will be elected whenever they can secure a sufficient, genuinely achieved base of voter support.
The politics of regional representation will become driven by actual voter choice and decisions, rather than corralled by malapportioned electoral divisions. The report adds its voice to measures to provide additional resourcing to remote and regional elected representatives.
Implementation of these recommendations may move quickly. The WA State Government, in releasing the report, has already announced that it will legislate for its adoption, adding the minor decision to increase the size of the Council by one seat to make an odd number of 37 seats.
The next Legislative Council elections will be in March 2025.
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Update: the WA Government has today (16 September) presented to Parliament a Bill to implement the proposed changes, available here.
The Constitutional and Electoral Legislation Amendment (Electoral Equality) Bill 2021 does indeed implement the advice of the MEC report discussed above, bring in “Electoral equality for all electors entitled to vote in the Legislative Council by providing for a single electorate (the whole of State electorate) for the election of members of the Council.”
State Attorney-General John Quigley, introducing the Bill, defended the whole of state approach in place of the present regional system, and confirmed that the group voting ticket ballot paper device would also be scrapped.
On Elections 
It’s very gratifying to find that one has influenced public policy! I’m glad to see you back on the blog, and I’m glad that the Ministerial Expert Committee in Western Australia quoted your rationale as the basis for its conclusion.
Thanks James. I will be keeping an eye on your Canadian election as well.
I look forward to your take on it. We’re about to elect another hung parliament, which will have rendered the snap election futile.
The English language really needs to start making the distinction between what the Germans would call “direkte Wahlen” and “unmittelbare Wahlen”. The former refers to a personal mandate from the electorate; the latter only demands that an election be subject to a publicly conducted campaign, with a secret ballot and not too high a barrier for access to “passive and active” voting rights (i.e. suffrage and the right to stand as a candidate, respectively).
The “Ministerial Expert [sic] Committee” is merely the latest of many such bodies to insist that the supreme law of the Commonwealth requires the first of those, when it was clear the framers of the Australian Constitution had the second type of election in mind.
The Constitution Act is being misinterpreted. All that was meant by the “direct election” provision was that members of upper houses would not be elected by members of the lower house (in the case of state chambers) or by members of State Parliaments (in the case of the federal Senate), which was the model many would have been expecting Australia to adopt at the time.
Australian political observers are insulting many of the world’s democracies by continually implying that closed party lists and/or d’Hondt and Sainte-Laguë divisors do not constitute direct elections.
As for the decision to use a single statewide constituency for the LC of WA: it seems inevitable given the terms of reference with which the Committee had to work. Lastly, as the commentator above points out, the early election call in Canada turned out to be largely pointless.
Oli, on the use of “direct” in Australian constitutional law, I am keeping an open mind. I agree that the record of the 1890s indicates that what the framers of the Aus Constitution had in mind was rejecting the use of two-stage elections, via an electoral college, or allowing state parliaments to select federal members (as they knew had happened in the early decades of the US Republic).
It’s a seperate question whether in recent decades the High Court jurisprudence on interpreting the whole of the expression “directly elected by the people” would be held to rule out legislating for party-list electoral systems. An increasing number of commentators keep mentioning that it would be a barrier. But, the matter simply hasn’t come to be tested in the Court.
It’s yet another seperate question whether legislating for such systems might actually happen in Australia. There has been the case of one election in SA in the 1970s, and the bizarre 1989-1992 ACT system (unlamented in it’s removal). But the Australian public have a strong association with direct (in this sense) election of MPs, and there is nothing to suggest that in the modern era there is such high trust in political parties that a party-list based system (including MMP, say) would be welcomed. Clearly, traditional party trust is low, and support for independents and experimentation with minor parties has been growing. My guess is that no government would attempt to legislate for a party list system in the near or middle future.
Finally, it is yet another seperate question again whether party-list systems, whether understood as ‘indirect’ or not, are desirable. Personally I do not think so, because of the importance I give to direct election of individual MPs, and the accountability (and choice) involved in doing so. But on that, reasonable minds can differ.
Thank you for your response. I absolutely accept, of course, that the main reason alternative systems are unlikely to be adopted in Australia now is that they’d run counter to a century’s worth of experience and the nation’s political culture, aside from the two brief and peculiar experiments you cite.
Nevertheless, that was clearly not the case at the time the Constitution was being drafted, and it’s pity that defence of preferential systems often rests upon this misinterpretation – wilful or otherwise – of its drafters’ intentions.
The two methods you mention would’ve been the only other templates for choosing Senators that were being considered back in the 1890s. Neither is a ranked ballot or ‘instant run-off’ method.
I am not much of an admirer of list systems myself either (whether closed or open) but I do find that examples of such from Germany, New Zealand, Scotland and Wales produce an overall fairer result than those often seen for the Australian House of Representatives. Although ‘fairer’ is subjective, and some observers may not prioritise proportionality in seat distribution in any case.