Inside Story

“An affront to anyone who believes in democracy”

Former Labor leader Jim McGinty isn’t the only one concerned about Western Australia’s electoral system

Imbalance of power: WA governor Kerry Sanderson addresses the incoming Legislative Council in May 2017. Richard Wainwright/AAP Image

Holding forty of the fifty-nine seats in the Legislative Assembly, Western Australia’s Labor government sits on one of the biggest parliamentary majorities of recent Australian history.

A combination of premier Mark McGowan’s record popularity levels (at 83 per cent, the highest in Newspoll history) and the turmoil among the Liberals (who recently installed thirty-three-year-old first-term MP Zak Kirkup as opposition leader) makes victory for Labor at the 13 March state election close to certain.

But despite the government’s dominance in the lower house, its attempts to update the electoral system — described by former WA Labor leader Jim McGinty as “an absolute affront to anyone who believes in democracy” — continue to fall victim to the non-government majority in the state’s upper house, the Legislative Council, and its own lack of ambition. Modest changes to the political donation and campaign expenditure rules failed to pass the Legislative Council in December 2020, just before parliament was prorogued.

The proposed rules — common to most other states, and also operating to a lesser extent federally — would have revealed the identity of anyone donating $1000 or more to a political party, banned some foreign donations, and capped campaign spending for political parties and other entities (albeit at a much more generous level than similar legislation in Queensland and New South Wales).

Despite the government’s massive lower house majority, these changes failed to elicit cross-party support in the Legislative Council. They won’t receive consideration again until after the election.

This raises the spectre that Clive Palmer, who is locked in various legal battles with the state government and with Premier McGowan, will reprise his notorious blanket advertising campaign as the election draws nearer. It also means that Western Australia, the most China-exposed economy in the nation, remains vulnerable to millions of dollars in donations from wealthy figures aligned with the Chinese Communist Party, as occurred in other jurisdictions before foreign donations were banned.

But the shortcomings of Western Australia’s system run deeper than political financing. In a chicken-and-egg dilemma that has characterised the state’s politics for decades, the reforms most needed are the very ones that threaten the existing membership of the highly unrepresentative Legislative Council.

The structural imbalance — or “malapportionment” — between city and country in the upper house has a long history. Following the last major attempt to tackle the issue, in 1986, the WA Legislative Council was divided into six regions (three in the metropolitan area and three in the regions), each electing multiple members via a system of proportional representation similar to the Australian Senate’s.

Also like the Senate, these metropolitan and country regions were allocated the same number of representatives despite vast differences in their voter numbers, just as Tasmania receives the same number of senators as New South Wales despite having less than one-tenth its population.

In Western Australia, this rural weighting has become more extreme over time. Much-heralded one-vote one-value reforms in 2005 only improved the system in the Legislative Assembly. In the Council, regional vote weighting was not only retained but was also intensified by legislation and continuing population movements.

Today, each of the six regions returns six members, or MLCs, who represent as many as 400,000 electors (in metropolitan areas) or as few as 70,000 (in rural areas). Just one-tenth of enrolled electors — those from the Mining and Pastoral region and the Agricultural region — choose one-third of MLCs.

These rural and regional voters — and the parties representing them, including the Nationals and the Shooters, Fishers and Farmers — have far more political influence in state parliament than their population warrants, a fact exacerbated by the Mining and Pastoral region’s lower voter turnout.

Moreover, the Electoral Act specifies that the number of electors in the three metropolitan regions should be roughly equal but makes no such stipulation for the non-metropolitan regions. The South West region has around 240,000 electors, Agricultural around 100,000 and Mining and Pastoral around 70,000, yet each returns the same number of MLCs.

As a result, the WA Legislative Council has by far the most extreme malapportionment of any state or territory in Australia. Perth, the only city, contains around three-quarters of all enrolled electors but gets to choose only half the MLCs. This level of variance has no parallel in other state jurisdictions — or indeed internationally, except in Senates (like Australia’s) that include big and small states equally.

A number of reform proposals have shown that the regions can be retained while distributing voters more equally. A more ambitious alternative would be a single statewide electorate, as in the NSW and SA Legislative Councils. But most of these reforms require majority support in the Council itself. Given that the currently advantaged rural and regional members are unlikely to put themselves in the position of turkeys voting for Christmas, fixing the problem relies on an overwhelming, and unlikely, political realignment.

Compounding the problem is the Council’s voting-ticket system, which requires parties and aligned candidates to lodge a preference schedule, or “group voting ticket,” prior to the election, setting out how their preferences will be allocated when electors vote above the line rather than rank every candidate below the line.

With more than 90 per cent of votes cast above the line — a similar proportion to most places where this option exists — parties can game the system by directing their preferences. Micro-parties can win seats using promiscuous preference-trading deals and reaping the (essentially random) rewards that accrue to whoever is able to assemble the necessary quota for victory.

Federally, “preference whispering” of this kind led to the election of several micro-party candidates in 2013. Faced with those senators’ balance-of-power influence, the Turnbull government changed the Senate voting system to allow for preferential voting above the line (or the alternative of numbering at least twelve preferences below the line). These reforms, inspired by the NSW system, are widely seen as successful, and have been replicated in other states.

Western Australia, meanwhile, has stuck to the old system: a single-ticket vote above the line or a full ranking of candidates below it. With nearly all WA voters relying on parties to allocate their preferences for upper house seats, micro-parties are winning representation — and potentially the balance of power — with negligible public support.

At the 2017 election, micro-parties including Flux the System!, Fluoride Free WA and the Daylight Savings Party all attempted preference harvesting but failed to win any seats. A Liberal Democrat candidate was more successful, winning a Legislative Council seat with less than 4 per cent of the primary vote by harvesting preferences from all of those parties as well as from One Nation and the Australian Christians, among others.

Equally unexpected results — or worse — are likely at next month’s election. The voting-ticket preferences lodged by minor parties indicate renewed preference-harvesting deals. Flux the System!, a party advocating direct democracy, has renamed itself Liberals for Climate and may well benefit from the real Liberal Party’s surprise pledge to replace the state’s coal-fired power stations with a renewable alternative.

The big parties aren’t immune to this pragmatic free-for-all. Labor’s voting ticket for the Legislative Council has preferenced the Shooters, Fishers and Farmers Party ahead of the Greens in the two rural regions, while the Liberals have placed One Nation higher than expected on some of their lists. These arrangements echo the ill-fated agreement between the Liberals and One Nation at the 2017 state election, which delivered no benefits to the Liberals but helped One Nation secure three seats in the upper house.

The most obvious and overdue reform, using the Senate and the upper houses of New South Wales and South Australia as models, would be to allow WA voters to indicate their preferred parties above the line. Their true preferences among parties would be captured, undercutting preference harvesting by micro-parties. But a 2019 private member’s bill to do exactly this, introduced by the Greens, failed to progress in the Legislative Council.

And the post-election prospects? Premier McGowan said in January that changing the mix of city and country representatives in the upper house was not on the government’s agenda, despite having labelled the system “fundamentally unfair” in 2017. Both Labor and the Liberals appear comfortable with the status quo, with only the Greens publicly committed to one-vote one-value and the reform of voting tickets and donation disclosure. The iron law of electoral reform — that governments lose interest in reforming a flawed system once they have been elected under it — appears to have triumphed, despite the upper house’s non-government majority.

But there is a glimmer of hope for reformers. The record popularity of the McGowan Labor government in the polls — a two-party-preferred lead of 68 per cent to the Liberals’ 32 per cent, according to the latest Newspoll — means that Labor and the Greens could achieve a Legislative Council majority in addition to near total domination of the lower house.

This level of control would have obvious downsides for democratic accountability, but it would also offer the only chance, now or in the foreseeable future, to make the reforms necessary to Western Australia’s increasingly unrepresentative Legislative Council. •