VOTE WEIGHTING IN ELECTORAL SYSTEMS:

THE ‘ONE VOTE, ONE VALUE’ DEBATE IN WESTERN

AUSTRALIA

Norman John Patrick Kelly

A dissertation presented as part of the requirements for the award of the degree of Bachelor of Social Sciences (Politics) (Honours) within the Faculty of Media, Society and Culture of the Curtin University of Technology, 2004.

November 2004 One Vote, One Value ii

Declaration

I declare that this Honours thesis is my own work and has not been submitted in any form for another degree or diploma at any university or other institute of tertiary education. Information derived from the published or unpublished work of others has been acknowledged in the text and a list of references is given.

Norman John Patrick Kelly 1 November 2004

One Vote, One Value iii

Acknowledgements

I would like to express my thanks to my supervisors, Associate Professor David Charnock and Dr Alan Fenna – David, particularly for assisting in the development of the scope and direction of the thesis, and theoretical perspectives; and Alan, for your willingness to step in at a late stage of the project. Thank you to the staff at Curtin, particularly Dr Philip Moore and Dr Patrick Bertola, who always responded promptly and effectively to my long- distance requests.

Thanks also to Karin Hosking and Liz Foster, for your technical guidance in the preparation of the thesis, and to the staff at the Parliamentary Library of Western Australia, and Members’ staff, for your ready assistance. Special thanks go to my interview participants, who generously gave of their time to openly discuss matters that were of particular political sensitivity.

Finally, special thanks go to my partner Gail, whose encouragement, belief, emotional and practical support, and love, helped ensure the success of this project.

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Abstract

Electoral systems play the predominant role in determining the nature of political expression in representative democracies. The manipulation of an electoral system to favour a particular group or class of citizens distorts the representative nature of a legislature and therefore diminishes the legitimacy that a parliament or government may claim. Australian electoral systems have a history of vote weighting, where citizens from particular geographic areas or jurisdictions receive an enhanced value for their vote. In recent decades, there has been a general trend in Australia to adopt models of voting equality, with all legislatures except Western Australia now having to some extent put in place voting based on the principle of one vote, one value. The issue of electoral reform in Western Australia, and particularly the question of voting equality, currently remains largely unresolved, with an expectation that the result of the upcoming state election, due in late 2004 or early 2005, will determine future directions for reform.

The general aim of the current study was to add to the theoretical and practical understanding of vote weighting in Australian electoral systems. This was carried out by conducting an analysis of the attempts by the Gallop Labor Government from 2001 to 2004 to reform the Western Australian electoral system. The central research question was ‘What political forces were at play during the legislative and judicial debates on the Gallop Government’s attempt to introduce electoral reform based on one vote, one value?’ The study incorporated a triangulation of method and data source, and incorporated both qualitative and quantitative methodologies, including personal interviews with key participants in the debates. The findings suggest that while political theory may be applied in designing electoral systems, political imperatives will ultimately determine their construction. In the Western Australian debate, certain political parties are more adept at adopting strategies that minimise public criticism for unpopular decisions, and the major political parties are willing to consider alliances at the expense of minor parties. In addition, governments have the ability to limit the effectiveness of parliaments through the restriction of funding. It is hoped that these results will contribute to the knowledge in the area of electoral system development and design.

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Table of Contents

Title Page i Declaration ii Acknowledgments iii Abstract iv Table of Contents v List of Tables viii List of Graphs ix List of Maps ix Acronyms x Quotations xi

Chapter 1 Introduction 1

Chapter 2 Methodological Considerations 4 2.1 Contextual Issues 4 2.2 Method 5 2.3 Quantitative – Indices of Malapportionment 6 2.3.1 David-Eisenberg Index 7 2.3.2 Dauer-Kelsay Index 7 2.3.3 Gini Index / Coefficient 7 2.4 Qualitative – Interview Techniques 9 2.4.1 Interview Participants 10 2.5 The Role of the Researcher 10

Chapter 3 Political Theory of Representative Democracies and Electoral Systems 12 3.1 Representative Government 12 3.2 British Origins of Electoral Systems 13 3.3 Types of Electoral Systems 14 3.4 Australian Electoral Systems – Bicameral and Unicameral Parliaments 17 3.5 The Value of a Vote – Malapportionment and One Vote, One Value 18 3.6 Summary 20 One Vote, One Value vi

Chapter 4 Australian Electoral Systems 21 4.1 The Federal Electoral System 21 4.1.1 The Senate 22 4.1.2 The House of Representatives 24 4.2 Recent Attempts to Introduce the Principle of One Vote, One Value to the Federal System 26 4.3 State and Territory Electoral Systems 28 4.3.1 Victoria 29 4.3.2 New South Wales 30 4.3.3 South Australia 30 4.3.4 Queensland 30 4.3.5 Tasmania 32 4.3.6 Australian Capital Territory 32 4.3.7 Northern Territory 33 4.4 Summary 34

Chapter 5 Western Australia – The Electoral System 35 5.1 Early History 35 5.2 Labor Party Actions towards Electoral Reform – 1970s to 1990s 40 5.3 Commission on Government 42 5.4 Election Results – 1996 and 2001 43 5.5 Current Electoral Boundaries 45 5.6 Summary 47

Chapter 6 Western Australia – Recent Attempts at Electoral Reform 50 6.1 Coalition Moves for Reform 51 6.2 The Lead Up to Legislation 51 6.3 The Gallop Labor Government Introduces Legislation 53 6.3.1 The Electoral Distribution Repeal Bill 2001 53 6.3.2 The Electoral Amendment Bill 2001 53 6.4 The Parliamentary Debates 54 6.4.1 The Legislative Assembly Debate 54 6.4.2 Initial Legislative Council Debate 55 6.4.3 Standing Committee Inquiry 56 6.4.4 Action by the Clerk of the Parliaments 58 One Vote, One Value vii

6.4.5 Renewed Parliamentary Debate 58 6.4.6 Summary of Parliamentary Actions 59 6.5 Supreme Court Action 59 6.6 High Court Action 60 6.7 Summary 61

Chapter 7 Findings 63 7.1 The Impact of One Vote, One Value on Labor and the Coalition 63 7.2 The Role of the Greens 65 7.2.1 Determining the Greens’ Position 66 7.2.2 The Greens Model – Self-Interest or an Ethical Position? 67 7.2.3 Strategic Response to the Greens Model 68 7.3 The Role of the Coalition Parties 70 7.3.1 Liberal Party 70 7.3.2 National Party 71 7.4 Initiating Supreme Court Action 72 7.5 Further Negotiations 74 7.6 A Deliberative Vote for the President 75 7.7 Subsequent Developments 76 7.8 Summary 77

Chapter 8 Concluding Discussion 78 8.1 Summary of Findings 78 8.2 Future Scenarios 80 8.3 Strengths and Limitations of the Study 81 8.4 Future Research 82 8.5 Conclusion 83

References 84

Appendices 94 Appendix A – Legislation 94 Appendix B – Participant Information Form 105 One Vote, One Value viii

List of Tables

4.1 Enrolments per Elected Senator (based on the 2004 half-Senate election) 22

4.2 Enrolment numbers for House of Representatives electorates, by State/Territory (2004 election figures) 24

4.3 Allowable Variation (%) from Average Quota 29

5.1 Historical Malapportionment in the Legislative Assembly, Western Australia (one election from each decade) 38

5.2 Western Australian Legislative Assembly – Comparison of voting support and number of seats won 44

5.3 Western Australian Legislative Council – Comparison of voting support and number of seats won 45

5.4 Western Australian Enrolment Figures – Legislative Assembly Electorates (Divisions) as at 13 July 2004 46

6.1 Western Australian Legislative Council – Seats by Party, 1997-2004 51

7.1 Western Australian Legislative Assembly – Seats by Party, August 2001 64

7.2 Labor’s Proposed Reform of Legislative Assembly seats 64

7.3 The Greens Model for the Legislative Council 67

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List of Graphs

2.1 Gini Index for the Legislative Assembly, Western Australia, 1927 8

4.1 Australian Senate – 2004 Half-Senate Election 23

4.2 Australian House of Representatives – 2004 Election 26

4.3 Queensland Assembly, enrolments at 31 August 2004 31

4.4 Australian Capital Territory, enrolments at 16 October 2004 election 33

4.5 Northern Territory Assembly, enrolments at 7 April 2004 34

5.1 Western Australian Legislative Assembly, enrolments at 13 July 2004 39

5.2 Western Australian Legislative Council, enrolments at 13 July 2004 40

List of Maps

5.1 Non-Metropolitan Regions 48

5.2 Metropolitan Regions 49

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Acronyms

ACT Australian Capital Territory

AGPS Australian Government Publishing Service

AEC Australian Electoral Commission

Austlii Australasian Legal Information Institute

CDL Country and Democratic League

COG Commission on Government

DLP Democratic Labor Party

ECQ Electoral Commission of Queensland

HCA High Court of Australia

JSCEM Joint Standing Committee on Electoral Matters

LAACT Legislative Assembly for the Australian Capital Territory

LCL Liberal Country League

NSW New South Wales

NTEC Northern Territory Electoral Commission

SCL Standing Committee on Legislation

SCWA Supreme Court of Western Australia

SLCRC Senate Legal and Constitutional References Committee

TDPC Tasmanian Department of Premier and Cabinet

VEC Victorian Electoral Commission

WAEC Western Australian Electoral Commission

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The cause of all these evils was love of power due to ambition and greed, which led to the rivalries from which party spirit sprung. The leaders of both sides used specious phrases, championing a moderate aristocracy or political equality for the masses.

From Thucydides’ The History of the Peloponnesian War (c.400 BC)

“… you object to legal equality with the many? But how can it be right that citizens of the same state should be held unworthy of the same privileges? It will be said, perhaps, that democracy is neither wise nor equitable, but that the holders of property are also the best fitted to rule.”

Speech by Athenagoras, The History of the Peloponnesian War

“Even when [adjusting electoral boundaries] is carried out in the interests of a party in power, that party generally finds arguments to show that it is acting in accordance with principle”

From W.J.M. Mackenzie, Free Elections (1985)

One Vote, One Value 1

CHAPTER 1

Introduction

From the time democratic societies possessed the ability to elect representatives to a parliamentary assembly, debates have ensued over the manner and form in which those representatives are chosen. A democracy’s electoral system is the critical component that underpins the level of legitimacy that parliaments and governments hold. It is also the key factor in determining whether the wishes of the democracy’s citizens are accurately reflected in its parliamentary representation. Two central elements of an electoral system are the suffrage, or entitlement for citizens to vote, and the manner in which the legislature’s jurisdiction is divided into seats and electorates (Mackenzie, 1967:19). The particular application or deliberate manipulation of these elements can easily distort the representative nature of a legislature. In so doing, it can diminish the legitimacy of a parliament by favouring a particular political party, or conversely, by disadvantaging other parties.

Universal suffrage, that is, the right to vote for all adult citizens, has now been widely adopted in most modern Western democracies (Rose, 1983:25). However, voting systems are many and varied, and remain the subject of much debate and deliberate political and legislative actions. One major aspect of voting systems is the determination of the most appropriate way to apportion the value of electors’ votes across a jurisdiction. Central to this issue is the question of whether all electors’ votes should have an equivalent value, broadly known as the principle of ‘one vote, one value’, or alternatively, whether the system should be malapportioned, where certain elector’s votes have an increased or decreased value or weight due to circumstances such as geographic location. For example, one argument put forward for vote weighting is that electors in rural areas should have an increased voting value in recognition of wealth generation and dispersed population (Mackenzie, 1967:110). One Vote, One Value 2

Australian electoral systems have their genesis in the democratic experiments of the nineteenth century (Sawer, 2001a:36) and as a result of this experimentation, a significant range of opinions on the most appropriate ways to determine parliamentary representation were developed. This diversity is currently manifested in the variety of electoral systems for Australia’s nine Federal, State and Territory legislatures. This variety includes bicameral and unicameral parliaments, state-wide and regional forms of proportional representation, structural malapportionment in the case of the Senate, and varying levels of tolerance for those systems based on voting equality. In recent decades, all legislatures have undertaken electoral reforms that have affected their respective forms of parliamentary representation. However, while there has been a general trend in Australia to adopt models of voting equality, not all legislatures have been consistent in this approach.

Previous research (e.g. Black, 1991; de Garis, 1991; Phillips, 1991; Robinson, 2003) has documented the historical evolution of the Western Australian electoral system. Further, Robinson (2003) and Sawer (2003) have provided assessments of the more recent Western Australian debates on electoral reform. The general aim of this thesis is to extend this work by investigating the issues of malapportionment through an analysis of the Western Australian electoral system. The study will focus on the attempts by the Gallop Labor Government in the past four years to reform the system by introducing legislation to incorporate the principle of one vote, one value into electoral law. The issue of electoral reform in Western Australia, and particularly the question of voting equality, currently remains largely unresolved, with an expectation that the result of the upcoming state election, due in late 2004 or early 2005, will determine whether the issue is revived in the new Parliament.

The research question that is central to this study is ‘What political forces were at play during the legislative and judicial debates on the Gallop Government’s attempt to introduce electoral reform based on one vote, one value?’ The study will provide insight into the debates through the analysis of interview material provided by key players involved in the progress of legislation and the subsequent Supreme Court and High Court actions. The understanding of the political forces in action gained through this analysis forms the basis One Vote, One Value 3 of an assessment for future possibilities and implications for electoral reform in Western Australia.

In Chapter 2, the research rationale and methodological considerations for the thesis are outlined, including an overview of contextual issues, and the rationale for the use of quantitative and qualitative data collection. Relevant political theories of representative democracies and electoral systems are provided in Chapter 3. Chapter 4 describes the development of the various electoral systems in Australian jurisdictions (except Western Australia), particularly in regard to the increasing use of the one vote, one value principle. Chapter 5 expands on this through the detailed assessment of the Western Australian electoral system, including historical developments related to vote weighting.

Chapter 6 details the recent attempts at electoral reform in Western Australia by examining Parliamentary debates, media coverage and Court decisions, while Chapter 7 describes the role of political strategies in these processes through an analysis of interviews conducted with key participants involved in the Parliamentary debates. In conclusion, the discussion section in Chapter 8 integrates the quantitative and qualitative data outcomes, provides possible future scenarios for electoral reform in Western Australia, and suggests future research directions.

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CHAPTER 2

Methodological Considerations

The overall aim of this research is to provide insight and clarification into the political forces that were at play in the legislative and judicial debates surrounding the Gallop Labor Government’s attempt in 2001 to introduce electoral reform based on the principle of one vote, one value, for Western Australian state elections. This chapter provides the research rationale and methodological considerations for the thesis. It commences with a brief overview of contextual issues, provides the justification for the choice of methodology used in the study, and assesses the importance of the role of the researcher.

2.1 Contextual Issues

In a representative democracy, the structure of a state’s electoral system plays a critical role in determining the nature and form of parliamentary representation. Elements of an electoral system include establishing who can vote, how many representatives are to be chosen from what areas, who is in charge of the conduct of elections, and how votes are counted. The adjustment or manipulation of these elements can have severe consequences for the viability of political parties, and therefore any attempt to make changes to a system considered to advantage or disadvantage a particular party is usually fiercely debated.

Electoral systems have evolved in Western democracies over the past few hundred years, and particularly, in Australia over the past century and a half. Despite a variety of systems in effect in Australia, Western Australia is generally considered to be the only jurisdiction that has not adopted the principle of one vote, one value, or voting parity, in some form, for its elections (Robinson, 2003). The Australian Labor Party has a long history of campaigning for the removal of vote weighting and the adoption of the one vote, one value One Vote, One Value 5 principle, so it was unsurprising that when elected in 2001, the Gallop Labor Government moved quickly to introduce such reforms into the Western Australian Parliament.

Although the Government was ultimately unsuccessful in passing these reforms, it can be considered likely that future attempts at reform will be made. It is therefore important to understand the political environment in which these proposed reforms were debated, and the reasons behind the actions of the various political representatives in the debates. From this knowledge, the implications for electoral representation in Western Australia in the future will be better understood.

2.2 Method

In order to provide a comprehensive understanding of the contextual issues of the one vote, one value issue in Western Australia, this research used a triangulation of data and method. Denzin (1970) defines the triangulation of data as using the same method to gather data from a variety of sources (Denzin, 1970:301), while the triangulation of method involves the use of dissimilar methods to measure the same unit (Denzin, 1985:5294). Combined, the triangulation of data and method has the advantage of improving the accuracy of the data and enhancing the reliability and convergent validity of the research. A review of the literature regarding the forms and history of political representation provided the basis for conducting an analysis of electoral systems in Australia. From this, a variety of data collection methods were selected for their appropriateness to the research. The use of a mix of quantitative and qualitative methods enabled different facets of the issues to emerge.

At the quantitative level, an analysis of enrolment figures and election results, both historic and recent, in the various jurisdictions provided an accurate picture of the levels of vote weighting that exist in Australia, and of their impacts on election results. A review of the literature indicated that three indices of malapportionment are commonly used in the assessment of vote weighting. These are the Gini, David-Eisenberg, and Dauer-Kelsay indices (JSCEM, 1988:20-23). These indices were used to provide measurable and illustrative ways for the interpretation of the raw data.

One Vote, One Value 6

Qualitative research using multiple data sources was used to provide the conceptual framework surrounding the debates and related issues. As Leininger (1992) has stated, the purpose of qualitative research is not to measure, but to provide the context of social actions, and to provide fresh perspective and insight into these actions (Leininger, 1992:401). The qualitative data methods used in the current study included, firstly, an analysis of the parliamentary debates. This provided a clear understanding of the publicly stated positions of the political parties, and of the arguments used to support their positions. Second, an analysis of media articles, primarily from the Perth printed media (The West Australian, The Australian, The Sunday Times) was conducted to understand the context of the public debate and discussion that occurred in conjunction with the parliamentary debates. Third, an assessment of the Western Australian Supreme Court and Australian High Court decisions relating to the legislation provided the legal context to the arguments.

Finally, primary qualitative data was obtained from personal interviews with key participants in the debates. Personal interviews provide flexibility in obtaining knowledge and understanding of the variables of interest. Respondents are able to clarify unclear questions, and the interviewer can pursue incomplete or ambiguous answers to open-ended questions. The interviews undertaken for this research gave additional context to the issues, as well as providing information that, due to its sensitive nature, was not available through other sources. Combined, these quantitative and qualitative methods and data have ensured a comprehensive assessment of the one vote, one value issue in Western Australia.

2.3 Quantitative – Indices of Malapportionment

Malapportionment is the disproportionate value or weight accorded to specified votes within an electoral system, and a number of mathematical indices are commonly used to quantify levels of such vote weighting. Following is a brief explanation of three of the indices that are typically applied to illustrate levels of malapportionment. These measures are used in later chapters to describe levels of malapportionment in Australian electoral systems.

One Vote, One Value 7

2.3.1 David-Eisenberg Index

The David-Eisenberg Index is a quite straightforward method of calculating the most extreme form of malapportionment that exists in an electoral system. The measure, developed by two American scientists, Paul David and Ralph Eisenberg, is the ratio between the largest and smallest numbers of electorate enrolments in an electoral system (Hughes, 1977a:97). Using this measure, one vote, one value exists at 1:1, with increasing ratios indicating higher levels of malapportionment. As an example, in the 2004 Australian House of Representatives election, the David-Eisenberg Index measure was 2.2:1, with 116,527 voters enrolled in the Fraser electorate in the ACT, and 53,873 enrolled in the Northern Territory electorate of Solomon (AEC, 2004).

2.3.2 Dauer-Kelsay Index

The Dauer-Kelsay Index uses a calculation of the smallest percentage of the total number of enrolled voters that is required to elect a majority of the seats in a legislature (Hughes, 1977a:97). Therefore, in a legislature with 60 seats, where 31 seats is a majority, using the Dauer-Kelsay Index, the enrolments from the 31 seats with the lowest enrolments are tallied and expressed as a percentage of the total enrolments. In an electoral system with one vote, one value (without allowable tolerances), the Dauer-Kelsay Index will indicate a value of more than 50 per cent (the exact percentage is dependent on the total number of seats). Conversely, the greater the level of malapportionment, the lower the percentage will be. Using the 2004 House of Representatives election example, the Dauer-Kelsay Index measure was 48.1%, representing the enrolment of the 76 smallest electorates of a total of 150 electorates (AEC, 2004).

2.3.3 Gini Index / Coefficient

The Gini Index is usually shown in graph form, where the cumulative percentage of enrolments is plotted as a Lorenz Curve, in order from the lowest to the highest electorate enrolments (JSCEM, 1988:22). A ‘Line of Equality’, being where the percentage of seats equals the percentage of total enrolments, is also drawn (Hughes, 1977a:97). The larger the area between these two lines, the greater the degree of malapportionment. The Gini Coefficient is the ratio of the area between these two lines, and the total area to the right of the Line of Equality (using a closed graph). In an electoral system where all votes are One Vote, One Value 8 equal, such as the proportional representation system for the New South Wales Legislative Council, the Gini Coefficient value is zero, increasing to a theoretical maximum malapportionment value of one (JSCEM, 1988:23). Graph 2.1 is an example of the Gini Index, taken from Hughes (1977a), depicting the level of malapportionment that existed for the Western Australian Legislative Assembly in 1927. The graph also depicts a Dauer- Kelsay Index of 22.97%.

Graph 2.1 Gini Index for the Legislative Assembly, Western Australia, 1927

---Insert copy of graph from Hughes 1977a:128---

(Source: Hughes, 1977a:128) One Vote, One Value 9

In Chapters 4 and 5, a number of graphs are used to illustrate levels of malapportionment, using the Gini and Dauer-Kelsay indices. In these graphs, the Line of Equality is coloured red, with the Lorenz Curve coloured blue. Two green lines denote the Dauer-Kelsay Index.

2.4 Qualitative – Interview Techniques

Patton (1990) identifies three basic interview types, being the standardised open-ended interview, the general interview guide approach, and the informal conversational interview (Patton, 1990:46). The standardised open-ended interview requires a series of questions to be asked in a pre-determined sequence using exact wording. The interviewer is not allowed to alter either the wording or sequence of questions (Brenner, 1980:137). With the general interview guide technique, topics are pre-determined, but the interviewer is not required to follow a particular order of questioning (Selltiz, Wrightsman and Cook, 1976:318). This allows the interviewer to be responsive to answers being provided. In the informal conversational, or recursive interview, questions are not pre-determined, rather, questions and topics emerge through the course of the interview (Minichiello, Arioni, Timewell and Alexander, 1992:112).

For this study, a combination of the general interview guide and the informal conversational interview techniques was used. There were a number of reasons for this approach. The interviews were in part designed to provide insights into the debates by gathering information that was not publicly available. Therefore, there was a need to be able to pursue lines of questioning on issues that were proffered by the participants. A list of interview questions was prepared prior to each interview, structured specifically for each individual interviewee, as it was the purpose of each interview to seek a unique mix of data from the participant. In addition, I am personally known to the majority of the participants, so it was determined that a structured formal interview may make those participants uncomfortable and potentially less willing to provide sensitive information. Conducting the interviews using an informal conversational approach increased the probability that the participants would divulge information, particularly in regard to matters of political sensitivity. According to Smith (1996), interviewing participants in familiar surroundings enhances the reliability of data collected (Smith, 1996:7). To achieve this, participants were interviewed in their own offices. One Vote, One Value 10

2.4.1 Interview Participants

The interview participants were selected for their close involvement or knowledge of the legislative debates. There are currently four parties represented in the Western Australian Parliament – the Australian Labor Party (Labor), Liberal Party, National Party, and Greens (WA). Representatives from all parties were approached for interviews. All requests were accepted, with the exception of the National Party Leader. The interview with the Liberal Party Deputy Leader did not go ahead due to his unavailability at late notice and the inability to arrange a suitable alternative time. In the case of the Liberal and National parties, information was sought and obtained from their staff and other Members, in lieu of matters that were to be raised in the interviews. In addition, interviews were conducted with key Parliamentary officers who were closely involved in the progress of the legislation and subsequent Court actions.

Face-to-face interviews were conducted during the week of 23-27 August 2004 in the participants’ offices at Parliament House and nearby parliamentary offices in Perth, Western Australia. Each interview participant was provided with a Participant Information Form (at Appendix B) prior to the interview. Due to the political sensitivities of the issues discussed in the interviews, participants were assured that any comments they made would not be used in a manner that would directly identify them. Individual interviews ran from 45 minutes to two hours. Prior to the commencement of each interview, an explanation as to the purpose of the study was given and permission obtained to audio-tape record the interview. The tape recordings were analysed and form the basis of Chapter 7.

2.5 The Role of the Researcher

According to Rossman and Rallis (1998), data collection and interpretation occurs through the filter of the researcher’s experiences and background (Rossman and Rallis, 1998:68). Therefore, researchers need to be rigorous in their approach to ensure that personal perspectives, including bias, opinions and prejudices, do not corrupt the quality of data obtained. Applied research in the social sciences often deals with complex and conflictual surroundings, with competing values, perspectives and ideologies (Denzin, 1970:5). According to Lee (1993), research is of a sensitive nature when it has the potential to threaten or put at risk those being studied. This includes research that impinges on the One Vote, One Value 11 vested political interests of people and institutions (Lee, 1993:4), and so, applies to the current research. Thus, there was a need for me to treat information gathered in a confidential manner.

My previous background assisted in understanding sensitive contextual issues. I brought to the study the experience of having been a member of the Western Australian Legislative Council for four years, representing the Australian Democrats, from 1997 to 2001. When I ended my term in May 2001, the Australian Democrats no longer held representation in the Parliament, and I no longer have an active political role. While this allowed me to understand the contextual issues, the interviewees did not consider me to be an active political protagonist who would seek political advantage through gaining information on sensitive issues. The combination of my personal experience and role as a researcher assisted in establishing a comfortable interview environment and rapport with the interview participants, all of whom I had previously dealt with through my political work or studies. My own political experience and knowledge of participants also assisted in understanding the procedures, strategies and nuances of the debates.

One Vote, One Value 12

CHAPTER 3

Political Theory of Representative Democracies and Electoral Systems

This chapter describes the political theories underlying the development of representative democracies, and the theories relating to the development of electoral systems. The chapter commences with a definition of the forms of representation, and a description of the British origins of representative systems. The major aspects of electoral and parliamentary systems, particularly Australian systems, are then discussed, with a focus on the values placed on electors’ votes.

3.1 Representative Government

According to Birch (1966), the existence of a fair number of representatives of the people that meets in a form of parliamentary council or assembly is evidence of a representative government (Birch, 1966:14). Heywood (1992) expanded on this definition by identifying three primary forms of representation. The first type is described as a representative acting as a delegate or agent to simply convey the wishes and views of the electorate to the parliament. The delegate requires regular interaction with the electors so that the electorate’s views on various issues are known. The second type of representatives are those who may act on behalf of the electorate in a way where they are deemed to be knowledgeable enough to form their own opinions, while acting in the best interests of their electorate. Finally, representatives may be chosen as personifying the general characteristics of the wider electorate, in terms of social experience and background, and are expected to understand the views of the electorate based on personal experience (Heywood, 1992:277). One Vote, One Value 13

3.2 British Origins of Electoral Systems

In the origins of British representative democracy, very few citizens had an entitlement, or franchise, to vote. As early as the late sixteenth century, Richard Hooker had put forward the theory that the legitimacy of a state’s parliament is derived from the consent of all of its citizens (Birch, 1966:36). Therefore to achieve consent from the people, Hooker argued that all citizens should be entitled to vote. But reform was slow, and in the mid seventeenth century, the Levellers group, who supported radical theory, promoted the expansion of the voting franchise (Birch, 1966:36). However, this did not equate to support for a universal franchise, as the Levellers did not support voting rights being extended to women, apprentices, or house-servants (Heywood, 1992:270).

In seventeenth century Britain, there were significant restrictions on the right to vote, with the franchise only being extended to men who met requirements based on social and economic status, such as being a freehold owner of property. The liberal theory of representation, as put forward by John Stuart Mill, suggested that only educated men should have the right to vote, as they were the only people who could fully understand politics (Birch, 1966:63). Furthermore, the very poor who did not pay taxes were considered not to have a personal interest in the running of government, and therefore were not entitled to vote (Birch, 1966:62). Those without the right to vote were considered to be ‘virtually’ represented by members of parliament who were deemed to be looking after the broader interests of all of the people, irrespective of whether they had a right to vote.

The issue of virtual representation was exacerbated by the industrial revolution, which created massive population movements within Britain, with a general shift from rural areas to the cities, and the creation of new towns and cities based on manufacturing. As electorates had fixed boundaries, this resulted in electoral malapportionment, with massive differences in the population of many electorates. People in new industrial towns without their own representative were deemed to be virtually represented by parliamentarians from other industrial towns, because they represented electorates with similar interests (Birch, 1966:50).

Mill also stated that the more intelligent people in society, and those with particular business and trade skills, should be given additional voting power through having multiple One Vote, One Value 14 votes, to reflect their knowledge and contribution to society (Heywood, 1992:280). Nineteenth century liberal theorists argued that a system of differential voting rights was preferred for the above reasons. However, they also argued that if the ultimate goal was ‘one man, one vote; one vote, one value’, such an objective should only be achieved through steady reform, with the gradual relaxation of property and skill qualifications (Birch, 1966:62).

The Reform Act of 1832 partially addressed the problem of malapportionment by reducing the representation of small boroughs and providing representation for the new industrial towns. The Act provided for a largely equal franchise across England and Wales, with the only differentiation being the value of voting rights between counties and boroughs (Birch, 1966:52). However, substantial malapportionment remained under a restricted franchise. Importantly, the 1832 Act marked the shift in the dominant theory of representation, with the new prevailing view being that individuals, rather than communities, were to be represented in parliament (Birch 1966:52).

Political theorists opposed to this position, such as Mackmurdo and Cole, argued that representation based on geographical boundaries did not serve the interests of the people. They argued that instead of having ‘one man, one vote’, each man should be represented according to his particular interest, such as a trade affiliation, rather than representation based on his geographical location (Birch, 1966:109). These views aligned with Guild Socialism, a political movement that sought to uphold the representation of the crafts and trades. However, this movement never dominated theory of representation, and representation based on geographical electorates, with largely equivalent voting power and a relatively universal voting franchise, has been retained as the preferred electoral system in modern-day Britain. However it is interesting to note that, while regular reforms did occur in the British system, multiple voting rights were not fully abolished until 1949 (Heywood, 1992:271).

3.3 Types of Electoral Systems

Components of electoral systems that assist in determining the manner and form that representation takes include the use of single or multi-member electorates, whether representatives are chosen in proportion of voting support, and the value placed on One Vote, One Value 15 electors’ votes. Farrell (2001) outlined a number of ways in which electoral systems can be classified. One method is to focus on the outcomes realised from an election process, specifically systems aimed at achieving either proportional, or non-proportional outcomes (Farrell, 2001:4). Another approach is to break down the mechanism of an electoral system into three components – the district magnitude, the ballot structure, and the electoral formula (Farrell, 2001:6). The district magnitude is the size of the electorate and the number of members elected from each electorate. The ballot structure is primarily the choice given to voters, either a singular vote as in ‘first past the post’ voting, or an ordinal vote where electors order the candidates by preference. The electoral formula translates votes into seats, through plurality, majority or proportional voting (Farrell, 2001:6).

Proportional representation is based on the notion of having all significant interests represented in parliament (Birch, 1966:71). Ideally the results of an election using a proportional representation formula are that the proportion of total voting support for these interests is reflected accurately in the make-up of the parliament (Newman, 1989:12). Proportional representation is usually achieved through the establishment of multi-member electorates, where members are elected in proportion to voting support (Mackenzie, 1967:75). In such a system, the prospect of true proportionality increases as the number of members to be elected from an electorate increases (Lakeman and Lambert, 1955:115). Some of the strongest advocates for a proportional representation system included those campaigning for women to be given the right to vote around the end of the nineteenth century. These campaigners saw a proportional system as the preferred method to represent the specific interests of women (Sawer, 2001b:21).

It is common in proportional systems that no one party has a majority of seats, thereby requiring coalitions to be formed to achieve a workable majority (and government) in a parliament. A good example of proportional representation was Germany’s 1983 election, where the Christian Democrats (38.2% of the vote), Social Democrats (38.2%), Christian Social Union (10.6%), Free Democrats (7.0%), and Greens (5.6%) all held a proportion of seats within one per cent of their voting support (Farrell, 2001:107). This is what the German mixed-member proportional system is designed to achieve, and usually requires the formation of alliances to determine government.

One Vote, One Value 16

In non-proportional systems, a greater emphasis is placed on achieving a clear majority of seats for one party, with the proponents for these systems arguing that this increases the possibility of stability in government (Farrell, 2001:4). This is usually achieved through single-member electorates, using either simple plurality (first past the post) or absolute majority (preferential voting) systems (Mackenzie, 1967:52-53). The simple plurality system has the effect of establishing a two party system, and of magnifying a small level of majority support in the electorate into a large majority in the parliament. While it is argued that this creates strong, stable government, alternatively, it also distorts the true wishes of the people (Mackenzie, 1967:53).

Absolute majority systems also have a magnification effect, or ‘cube law’, for the two main parties, because minor parties are eliminated at an early stage of the count, with the final contest generally being between candidates of the two main parties (Farrell, 2001:52, 63). For example, during the Australian Labor Party’s 13 years in government from 1983 to 1996, the party’s percentage of House of Representatives seats was up to 13.3% above its percentage of voting support. Through this magnification effect, Labor could form government with as low as 39.4% (in 1990) of the primary vote (Farrell, 2001:62). A similar situation existed for the Liberal/National Coalition from 1975 to 1983. In 1977, the Coalition won only 48.1% of the primary vote, but won 69.3% of the seats (Farrell, 2001:62).

The impact of absolute majority systems on minor parties can be seen in the Australian House of Representatives elections. For example, the Democratic Labor Party (DLP) was unable to win any seats from 1955 to 1972, despite its support ranging from 5.2% to 9.4% (national average) during this time (Farrell, 2001:63). Through preferential voting however, DLP voters were able to influence the ultimate outcome of many seats. Similarly, the Australian Democrats have not won any House of Representatives seats while achieving up to 11.3% support (national average, 1990) (Farrell, 2001:63).

Traditionally, bicameral parliaments (two houses) use different electoral systems for each house of parliament (Jaensch, 1995a:359). This minimises the possibility of the two houses being a reflection of each other in terms of the makeup of the various parties. If a bicameral parliament uses a non-proportional system for its lower house (the house of government) and a proportional system for its upper house (the house of review), it can be One Vote, One Value 17 argued that this achieves a clear decision as to the people’s choice of government, and therefore stability, while also more accurately reflecting first voting choices in a house of legislative review, the commonly portrayed role of upper houses in modern times.

3.4 Australian Electoral Systems – Bicameral and Unicameral Parliaments

In Australia’s nine Federal, State and Territory jurisdictions, there are a total of 15 houses of parliament or assembly, using a variety of electoral and legislative systems. All jurisdictions, with the exceptions of Queensland, the Australian Capital Territory and the Northern Territory, are bicameral systems based on the Westminster model. The Australian House of Representatives, the Legislative Assemblies of New South Wales, Victoria, Queensland, Western Australia and the Northern Territory, and South Australia’s House of Assembly, all use a system based on single-member seats elected by preferential voting. The Tasmanian House of Assembly and the Australian Capital Territory Legislative Assembly use proportional representation based on the Hare-Clark system (Jaensch, 1995a:350; LAACT, 2004).

The six Australian upper houses, with the exception of Tasmania and Victoria, use proportional representation systems, with the New South Wales and South Australian Legislative Councils using a state-wide electorate. The Australian Senate and Western Australian Legislative Council use proportional representation based on states/territories, or regions, respectively. The Tasmanian Legislative Council has 15 single-member seats elected by preferential voting. The Victorian Legislative Council has 22 two-member seats elected by preferential voting. However, terms are staggered, with each member being elected for two terms of parliament, and only one member elected at each election (VEC, 2004). In terms of election results, this therefore has the effect of Council seats being single-member seats. It should also be noted that the Victorian Legislative Council is currently undergoing reform, changing to a system of proportional representation. From the 2006 Victorian election, members of the Council will be elected from eight regions, each represented by five members (VEC, 2004).

While there is great diversity in Australian electoral systems, all bicameral parliaments use (or in Victoria’s case, are about to use) a combination of single-member and proportional One Vote, One Value 18 systems, which minimises the possibility of the two houses being a reflection of each other. In addition, the Australian Senate, and New South Wales, South Australian, Victorian and Tasmanian Legislative Councils use staggered terms, which can have an averaging effect on the peaks and troughs in voting support that political parties may experience over a period of time.

3.5 The Value of a Vote – Malapportionment and One Vote, One Value

While the preceding section discusses aspects of the makeup of Australian parliaments, in terms of houses and members, it is equally important to consider the values placed on electors’ votes. These can range from voting equality to massive malapportionment, or vote weighting. When discussions on malapportioned systems occur, the term ‘gerrymander’ (or ‘Bjelkemander’, after a former Queensland Premier) is often mistakenly used. A gerrymander occurs when a dominant political party is able to dictate the drawing of electoral boundaries in a way that maximises the benefits for that party, even when all electorates have an equal number of enrolments (JSCEM, 1988:16). Typically, this would result in the non-governing party having large majorities in a minority of seats, while the dominant party holds smaller majorities, but in a greater number of seats. This maximises the value of the dominant party’s votes, while non-governing parties have excess votes ‘wasted’ in safe seats.

Systems of malapportionment, however, establish electorates of different enrolment size according to the creation of zones, where areas receive a greater or lesser voting weight, or power, according to their location (JSCEM, 1988:15). In these systems it is usually the rural areas that receive additional voting power, with countries such as Australia, Norway, New Zealand, Canada and South Africa having used such weighting (Mackenzie, 1967:110-111). According to Mackenzie, typical arguments used to support malapportionment include the need to recognise the wealth of the farming estate for a nation’s economic prosperity, and that the rural areas represent a nation’s patriotic values and virtues (Mackenzie, 1967:111).

In considering malapportioned systems, it is pertinent to assess the ‘fairness’ of the system. As described above in relation to gerrymanders, voting parity can be corrupted through the drawing of electorate boundaries to unfairly advantage or disadvantage a certain party. One Vote, One Value 19

However, in a malapportioned system, inequality of voting power does not necessarily translate to being an unfair system. Fairness may still occur if the parties’ overall number of seats is proportionate to their level of voting support (Hughes, 1977b:96), or at least in relative terms due to the magnification effect that occurs for the two major parties in single-member seats. The geographic concentration of different parties’ voting support in different areas may balance out in an overall sense, thereby achieving a fair result. Despite this, it is usually possible to identify particular parties that are unfairly affected by malapportioned systems.

Early examples of Australian electoral systems were generally a continuation of the British precedent of differentiating between rural and urban areas in terms of voting value, with there being a traditional bias, or vote weighting, in favour of rural and remote areas (Goot, 1985:210). These were designed, and have been successful, in working in favour of the conservative, or non-Labor parties (Jaensch, 1995a:250). However, a malapportioned system can be subject to demographic change. For example, a rural constituency close to a metropolitan centre may experience rapidly changing demographics due to the spread of urbanisation, and thus shift the political balance of the electorate.

Australian electoral systems have generally moved away from malapportionment to systems based on the principle of one vote, one value. In all cases, Labor governments have initiated these reforms (Jaensch, 1995a:368; Queensland Parliament, 2004). A tolerance of plus or minus 10% variation from the average electorate enrolment is considered to be the uniform minimum standard for the principle of one vote, one value (SLCRC, 2004:15). However, arguments are regularly put forward for more generous tolerances to be allowed so that special interests can be accommodated, particularly in the case of remote areas and indigenous communities (SLCRC, 2004:16). For example, the Northern Territory, with a significant indigenous population living in remote areas, has adopted an electoral system based on vote parity, but allowing a plus or minus 20% tolerance from the average enrolment (NTEC, 2004).

Despite the relative merits of such arguments, this study adopts the definition of one vote, one value having a tolerance of up to and including plus or minus 10%. It should also be noted that while ‘structural’ malapportionment may occur as explained above, it is also possible for vote weighting, or ‘incidental’ malapportionment, to occur in a system of one One Vote, One Value 20 vote, one value, through the application of allowable tolerances and electoral laws. For example, while Australia’s House of Representatives is elected using a one vote, one value system, the value of a Northern Territorian’s vote is more than double that of a voter living in the Australian Capital Territory, for reasons which will be explained further in the next chapter.

3.6 Summary

This chapter has provided the theoretical basis and structural components for the parliamentary and electoral systems that exist in representative democracies. Using this as a foundation, the following chapters will assess the systems that exist in the various Australian jurisdictions, with a particular emphasis on the development of the Western Australian electoral system and the recent attempts at electoral reform in that state. One Vote, One Value 21

CHAPTER 4

Australian Electoral Systems

This chapter explores the development of Australian electoral systems, particularly in relation to the increasing use of the principle of one vote, one value. The Federal system is assessed, as well as those of the State and Territories, with the exception of Western Australia, which is the focus of later chapters. In Australia, all jurisdictions except Western Australia have now incorporated the principle of equal representation based on one vote, one value to some extent (Jaensch, 1995b:75). However because of constitutional requirements and the provisions of electoral laws, voting equality has not necessarily been achieved in all of these cases. For example, the prescriptions for the timing of redistributions, and the degree of tolerance for electorate numbers (i.e. the allowed variation from an average quota), are two ways in which vote weighting may occur in an electoral system based on voting equality. There are only two Australian Houses of Parliament that use an electoral system where all voters are provided with an equivalent vote value. These are the New South Wales and South Australian Legislative Councils, where members are elected by proportional representation in a state-wide electorate (Jaensch, 1995b:38). These are discussed later in the chapter.

4.1 The Federal Electoral System

The primary law for Australia’s Federal electoral system is the Australian Constitution, which sets out the requirements for the form of representation for the two houses of the Federal Parliament. The Constitution also empowers the Parliament to pass legislation amending the original representational and electoral requirements (for example, the number of senators – section 7, qualification of electors – section 30, conduct of House of Representatives elections – section 31). The primary piece of legislation relating to electoral matters is the Commonwealth Electoral Act 1918. In the Federal electoral One Vote, One Value 22 system, while one vote, one value exists for the Senate and House of Representatives within each state and territory, a wide disparity in the value of votes may occur between different states/territories.

4.1.1 The Senate

At the time of Federation, the smaller colonies were concerned that their interests would be swamped by the more populous larger colonies. As a way of protecting their interests, the Australian Constitution (section 7) dictates that an equal number of Senators are to be elected from each state (AGPS, 1994:8-12), irrespective of the size of the state’s population. This currently results in malapportionment of up to 12.7:1, with the quota (based on enrolled voters) to elect a Senator from New South Wales at the 2004 election being 614,589 votes, compared to only 48,513 votes to elect a Tasmanian Senator (AEC, 2004). Table 4.1 shows the disparity in representation that occurs due to the constitutional and legislative requirements for Senate elections.

Table 4.1 Enrolments per Elected Senator (based on the 2004 half-Senate election)

Total Average Enrolled Difference from State / Territory Quota#1 Enrolled per Elected Senator National Avg. (%) New South Wales 4,302,122 717,020 120.0 614,589

Victoria 3,292,409 548,734 68.6 470,344

Queensland 2,463,402 410,567 26.1 351,915

Western Australia 1,237,349 206,225 -36.6 176,764

South Australia 1,049,814 174,969 -46.3 149,973

Tasmania 339,589 56,598 -82.6 48,513

ACT 224,896 112,448 -65.5 74,965

Northern Territory 111,649 55,825 -82.9 37,216

Australia – Total 13,021,230 325,531 - - #1 Quota – Total enrolled, divided by the number of Senators to be elected plus one. (Source: AEC, 2004)

One Vote, One Value 23

Additionally, the Federal Parliament has the ability to influence the level of malapportionment through its constitutional powers to pass legislation that determines the manner and form of Australia’s electoral system. For example, the Parliament’s law- making power under section 122 of the Constitution (at Appendix A) allowed the Parliament to legislate in 1973 for two Senators to be elected for each of the Australian Capital Territory and Northern Territory (Senate (Representation of the Territories) Act 1973, JSCEM, 2003:10). Section 40 of the Commonwealth Electoral Act 1918 (Appendix A) ties increases in the number of Senators for the Territories to population growth, through a correlation with the Territories’ entitlement of House of Representatives seats. The result is malapportionment of 16.5:1 when comparing the Northern Territory quota (37,216 votes) with the New South Wales quota (614,589 votes) (AEC, 2004). Using the Gini and Dauer-Kelsay Indices, Graph 4.1 depicts the high levels of malapportionment that exist in the Senate, based on the 2004 election where 40 Senators were elected (AEC, 2004).

Graph 4.1 Australian Senate – 2004 Half-Senate Election

100

) 75 % (

s t n e m l o r n E l

a 50 Tot

of ge a t n e c r

e 25 P

0 1 4 7 1013161922252831343740

Number of Seats (Total = 40) One Vote, One Value 24

4.1.2 The House of Representatives

While the electoral system for the House of Representatives is also primarily based on one vote, one value, the Australian Constitution enables two significant ways for vote weighting to occur. Firstly, section 24 of the Constitution requires electorates (districts) to be evenly divided within a state, and section 29 stipulates that a ‘division shall not be formed out of parts of different States’ (AGPS, 1994:12-13). This has led to wide disparities in enrolment for jurisdictions with smaller populations, particularly within the Australian Capital Territory (ACT) and Northern Territory, when compared to other jurisdictions. At the 2004 election, for example, the two Northern Territory seats had less than half the enrolment, with an average 55,825 enrolment, of the two ACT seats, which averaged 112,448 enrolments (AEC, 2004). Table 4.2 shows the disparities that currently exist.

Table 4.2 Enrolment numbers for House of Representatives electorates, by State/Territory (2004 election figures)

Average Deviation Lowest Highest Deviation from State / Territory Enrolled per from Aust. Enrolment Enrolment State/Territory Electorate Avge (%) Avge % NSW 86,042 -0.9 78,039 95,065 -9.3 / 10.5

Victoria 88,984 2.5 81,769 94,897 -8.1 / 6.6

Queensland 87,979 1.3 81,526 93,416 -16.8 / 6.1

West. Australia 82,490 -5.0 75,368 86,354 -8.6 / 4.7

South Australia 95,438 9.9 90,256 100,691 -5.4 / 5.5

Tasmania 67,918 -21.8 65,492 69,212 -3.6 / 1.9

ACT 112,448 29.5 108,369 116,527 -3.6 / 3.6

Nthn Territory 55,825 -35.7 53,873 57,776 -3.5 / 3.5

AUSTRALIA 86,808 - 53,873 116,527 -37.9 / 34.2#1 #1 Deviation from National Average (Source: AEC, 2004)

One Vote, One Value 25

The second aspect of the Constitution that creates vote weighting for the House of Representatives is the section 24 requirement that ‘five members at least shall be chosen in each Original State’ (AGPS, 1994:12). Western Australia and Tasmania were beneficiaries of this condition from Federation in 1901. In 1933, Western Australia’s population had grown sufficiently to no longer require this safeguard, however Tasmania has continued to benefit, as the state would otherwise be entitled to only four seats based on its current enrolled population (JSCEM, 2003:7). At the 2004 election, Tasmania’s electorates had an average enrolment of 67,918, compared to an average of 87,460 for the other states and territories (AEC, 2004).

Disparity also exists between the more highly populated states, due in part to redistributions taking place at different times for each state/territory. Part IV of the Commonwealth Electoral Act 1918 prescribes the manner in which redistributions are to be conducted, providing for a projected tolerance of plus or minus 3.5% of a State or Territory’s average electorate enrolment (sections 63A and 66, see Appendix A). The timing of when redistributions are calculated can significantly influence the degree of deviation that occurs. As Table 4.2 shows, actual deviations may be substantially outside the plus or minus 3.5% range.

The Federal Parliament is also able to over-ride decisions of the Australian Electoral Commission, as occurred recently with the passing of the Commonwealth Electoral Amendment (Representation in the House of Representatives) Act 2004. This legislation set aside the Electoral Commissioner’s determination in 2003, based on population figures, that the Northern Territory’s representation in the House of Representatives be reduced from two seats to one seat (Bell and Newman, 2004:7). Irrespective of the merits of such legislative changes, the impact on vote weighting can be quite pronounced, as presented in Table 4.2. In the case of the Northern Territory, the Federal Parliament’s decision doubled the weight, or value, of each Northern Territorian’s vote.

Graph 4.2 illustrates small levels of malapportionment for the House of Representatives, especially when compared to the Senate (Graph 4.1). A comparison of the two graphs also highlights the impact that malapportionment has on the Dauer-Kelsay Index. The large deviations that exist for Tasmania and the Northern Territory, as outlined above, can be One Vote, One Value 26 seen to have only a minor impact on the Lorenz Curve, as these special conditions affect only seven of the 150 House of Representatives seats (data source: AEC, 2004).

Graph 4.2 Australian House of Representatives – 2004 Election

100

75 ) % ( s t n e lm o r n

E 50 f o e g a t n e c r e P 25

0 1 10 19 28 37 46 55 64 73 82 91 100 109 118 127 136 145 Number of Seats (Total = 150)

4.2 Recent Attempts to Introduce the Principle of One Vote, One Value to the Federal Electoral System

There have been a number of attempts in recent decades to entrench the principle of one vote, one value into Australia’s electoral system. At the 1963 Federal election, size disparity within states for House of Representatives seats was as high as 3.1:1 (Victoria, seats of Bruce and Scullin) and 2.5:1 (New South Wales, seats of Mitchell and West One Vote, One Value 27

Sydney) (Whitlam, 2003). By the 1966 election, this disparity had increased to 3.8:1 and 3.4:1 respectively (Whitlam, 2003). In 1968, Senator Lionel Murphy QC, the Leader of the Labor Opposition in the Senate, introduced two Bills with the purpose of altering the Constitution to require one vote, one value for the states and Commonwealth. Following Murphy’s second reading speech, the Bills failed to be progressed by the Coalition Government (Whitlam, 2003).

In 1974, the Senate voted against Prime Minister Gough Whitlam’s Constitution Alteration (Democratic Elections) Bill 1974, which sought to amend the Constitution to ‘ensure that the members of the House of Representatives and of the parliaments of the states are chosen directly and democratically by the people’ (Parliament of Australia, 2004a). However, with the Governor-General’s approval (as provided for in section 128 of the Constitution, see Appendix A), the proposal was put forward in a constitutional referendum on 18 May 1974. The proposal received no support from the Opposition and was defeated, with only 47.2% of voters, and only one state, New South Wales, in support (JSCEM, 1988:10-12; Parliament of Australia, 2004a).

The High Court heard a case in 1975 relating to the alleged disparity in size of House of Representatives seats (the McKinlay case, HCA, 1975). In its decision, the High Court ruled that while ‘something approaching numerical equality’ was important, the Australian constitution does not require this to occur (Downing, 1996:1). In it’s ruling the High Court stated that section 24 of the Constitution does not provide a ‘guarantee of equality in the voting value or weight of each vote cast in an election for the House of Representatives’ (JSCEM, 2003:6).

The Bob Hawke Labor Government was successful in passing legislation in 1983, the Commonwealth Electoral Legislation Amendment Act 1983, which amended the Commonwealth Electoral Act 1918, by setting three criteria for the redistribution of seats (Jaensch, 1995a:371). These criteria are that redistributions must occur – at least every seven years; if more than one-third of the seats in a state deviate from the average enrolment by more than 10%; or when a state’s entitlement to its number of seats changes (section 59 of the Commonwealth Electoral Act 1918, see Appendix A). These changes moved the Australian electoral system to one vote, one value, but as it was only a legislative change, there was no constitutional guarantee. One Vote, One Value 28

Senator Michael Macklin (Queensland, Australian Democrats) introduced Bills in 1984, 1985, and 1987 for a constitutional amendment to enshrine the principle of one vote, one value. They were designed to improve on the 1974 Whitlam model, which had based equality on the population of each electorate, rather than on the number of eligible people enrolled to vote (JSCEM, 1988:12). In his 1987 Bill, Senator Macklin sought a requirement for equality in electorate enrolments ‘as nearly as practicable’, but with a tolerance of plus 10%, and with no lower limit (JSCEM, 1988:3). The Bill was referred to the Joint Standing Committee on Electoral Matters, which reported in April 1988 finding that ‘equity in voting power is a necessary first step in achieving a fair electoral system’ (JSCEM, 1988:57). The Committee recommended that electoral enrolments should be within 10% of the average enrolment and that the issue be put to a referendum (JSCEM, 1988:7). Five months later in September 1988, a referendum was held to amend the Australian Constitution to ‘ensure that democratic electoral arrangements would be guaranteed for Commonwealth, State and Territory elections’ (Parliament of Australia, 2004b). This referendum was defeated, largely due to the Coalition parties campaigning against the proposal, on the basis that states should maintain control over their own electoral matters (Jupp and Sawer, 2001:219). It has also been argued that the Liberal Party was simply bowing to pressure from the National Party, traditional supporters of bias to rural electorates (Jaensch, 1995a:370).

4.3 State and Territory Electoral Systems

While there are some similarities between the Federal and State/Territory electoral systems, the states have the freedom to make their own laws in relation to electoral systems. Despite a variety of systems and a history of malapportionment in the various Australian jurisdictions, all jurisdictions apart from Western Australia have now adopted voting equality within specified tolerances. Table 4.3 shows the level of tolerance for each jurisdiction, excluding Western Australia. The following sections provide a brief description of the history and current status of the states and territories in regard to one vote, one value.

One Vote, One Value 29

Table 4.3 Allowable Variation (%) from Average Quota

Lower Single Upper Jurisdiction House House House Comments New South Wales 10% - 0% One state-wide electorate for Upper House

Victoria 10% - 10%

Queensland#1 - 10% - Special provision for geographically large electorates South Australia 10% - 0% One state-wide electorate for Upper House Tasmania 3.5% - 10% Lower House – multi-member seats Upper House – single-member seats

ACT - 5% -

#2 Northern Territory - 20% -

Federal 3.5% -* *No variation within State or Territory

#1 In Queensland, special weighting is provided for electorates with a geographical size of more than 100,000 square kilometres. This currently affects five electorates (Charters Towers, Cook, Gregory, Mt Isa, Warrego), thereby creating a weighting of 1.92:1 between Queensland’s largest (Kurwongbah, 32,865 enrolled) and smallest (Mt Isa, 17,092 enrolled) electorates (ECQ, 2004). #2 The current (7 April 2004 figures) range of deviation from the average electorate enrolment for Northern Territory enrolments is +15.1% (Brennan) to –12.2% (Barkly) (NTEC, 2004).

4.3.1 Victoria

From 1926 to 1953, Victoria’s electoral system allowed a weighting for Legislative Assembly seats of more than 2:1 in favour of rural areas. This weighting was reduced by Labor Government reforms in 1953, but then partially reintroduced, with a weighting of 1.4:1, by the Bolte Liberal Government in 1965. It took further reforms by the Labor Government in the early 1980s, with the support of the Liberal-controlled Legislative Council, for the principle of one vote, one value to be firmly established in electoral law (JSCEM, 1988:32). The most recently available figures (30 June 2003) show Assembly enrolments to be within a +8.8% to –7.2% deviation from the average enrolment (VEC, 2003:86). In the case of the Legislative Council, the current Bracks Labor Government has recently reformed the Council so that a system of proportional representation will take effect from the 2006 Victorian election, with five members to be elected from each of eight regions, based on one vote, one value (VEC, 2004).

One Vote, One Value 30

4.3.2 New South Wales

In 1982, the Wran Labor Government removed the New South Wales system of weighting (introduced by the Lang Labor government in 1927) for country areas, and at the same time introduced a state-wide electorate for the Legislative Council, elected by proportional representation (JSCEM, 1988:35). Similar to the Federal Senate, Legislative Council elections currently operate under staggered terms, where half of the members are elected at each Legislative Assembly election, for a period of two Assembly terms.

4.3.3 South Australia

South Australia, together with Queensland and Western Australia, provides the most extreme example of malapportionment in Australian electoral systems. Up until the late 1960s, the South Australian system for its House of Assembly favoured rural electorates with vote weighting of almost 4:1 (JSCEM, 1988:34). This allowed conservative governments, particularly the Playford Liberal Country League (LCL) Governments from 1938-65, to control South Australian politics. It was through demographic changes, rather than electoral reform, that Labor was able to win the 1965 election. However, it was the following LCL Government, under the leadership of the progressive Steele Hall, that reduced vote weighting for the Assembly to 1.5:1 in 1969. This reform is accredited with returning Labor to power in 1970 (Parliament of South Australia, 2004). The South Australian Constitution Act 1934 (section 77) was amended in 1975 by the Dunstan Labor Government to incorporate equality of voting, with a 10 per cent tolerance (JSCEM, 1988:34). South Australia’s Legislative Council elections are based on a state-wide electorate, with staggered terms, similar to the New South Wales Legislative Council.

4.3.4 Queensland

Queensland has had a chequered history in the past 100 years in the area of electoral reform. In the early twentieth century, voting equality (allowing a 20 per cent tolerance from the state average) was introduced for the Assembly with the Electoral Districts Act 1910. In 1922, the Legislative Council was abolished, making Queensland the only State with a unicameral system. In 1931, legislative changes by the Moore Conservative Government allowed increased weighting for the Assembly, and in 1949 the Hanlon Labor Government introduced zoning, entrenching a level of malapportionment that was One Vote, One Value 31 reinforced by subsequent Coalition Governments (JSCEM, 1988:48-50). The Goss Labor Government abolished zoning in 1990 (the Electoral Districts Act 1990), and introduced one vote, one value (with a 10 per cent tolerance), with the exception of special weighting being given for electorates with a land area of 100,000 square kilometres or more (Robinson, 2003; Queensland Parliament, 2004). This special exception affects only five of Queensland’s 89 electorates, and therefore has only a minor affect on overall levels of malapportionment, as can be seen in Graph 4.3.

Graph 4.3 Queensland Assembly, enrolments at 31 August 2004

100

75 ) % (

ts n e m l o r n E l

ta 50 o T f o

e g ta n e c r e P 25

0 1 9 17 25 33 41 49 57 65 73 81 89

Num ber of Seats (Total = 89)

(Data Source: ECQ, 2004) One Vote, One Value 32

4.3.5 Tasmania

Tasmania’s House of Assembly has five multi-member electorates (with equal numbers elected from each electorate) that are identical to the state’s House of Representatives electorates. The duplication of the Commonwealth electorates has been in place for the past century, ensuring one vote, one value based on the Commonwealth’s determination of electorate boundaries. However, for Tasmania’s Legislative Council, as recently as 1988, malapportionment was as high as 3.5:1 (JSCEM, 1988:38). Council seats are elected on a rotational schedule, where two or three members are elected each year for six-year terms (Tasmanian Electoral Office, 2004). Equality of voting rights was introduced for the Council in the 1990s, with section 13 of the Legislative Council Electoral Boundaries Act 1997 stipulating that a 10 per cent tolerance should be achieved ‘as far as practicable’, four and a half years after a redistribution process has been conducted (TDPC, 2004). Current Council enrolment figures (as at 21 September 2004) show maximum deviations of +3.9% (Murchison electorate) and –7.5% (Rowallan electorate) from the average enrolment (Tasmanian Electoral Office, personal communication, 22 September 2004).

4.3.6 Australian Capital Territory

The Australian Capital Territory’s first two elections under self-government in 1989 and 1992 were held using a modified d’Hondt voting system. Following a referendum (held in conjunction with the 1992 election) the ACT moved to the Hare-Clark system (LAACT, 2004), with three electorates of five, five, and seven members. Section 67D of the Commonwealth’s Australian Capital Territory (Self-Government) Act 1988 stipulates a tolerance of no more than 10 per cent immediately following a redistribution. Section 36 of the ACT’s Electoral Act 1992 takes this further by making a requirement that redistributions ensure no greater than a five per cent tolerance ‘as far as practicable’ for the following election (Austlii, 2004). At the 2004 ACT election, variations from the quota ranged from –1.8% (Gininderra) to +2.6% (Molonglo) (data from Elections ACT, 2004). The combination of multi-member seats and a narrow range of quotas creates a minimal level of vote weighting, as illustrated in Graph 4.4. These factors, combined with a low number of total seats (17) results in a Dauer-Kelsay Index in excess of 50% for the ACT.

One Vote, One Value 33

Graph 4.4 Australian Capital Territory, enrolments at 16 October 2004 election

100

) 75 % ( s t en m l o r n E al

t 50 o T f o e g a t en c r

e 25 P

0 1234567891011121314151617

number of seats

(Data Source: Elections ACT, 2004)

4.3.7 Northern Territory

Although the Northern Territory’s system is based on the equality of a person’s vote, the allowable 20 per cent variation from the average enrolment is outside the generally considered standard. Theoretically, this allows for weighting of up to 1.5:1. Based on current enrolment figures, actual weighting is up to 1.3:1 in the most extreme example, which is the seat of Brennan, with 4,957 enrolled, compared to the seat of Barkly, with 3,781 enrolments (NTEC, 2004). This narrow range of deviation is depicted in Graph 4.5.

One Vote, One Value 34

Graph 4.5 Northern Territory Assembly, enrolments at 7 April 2004

100

75 ) (%

ts n e m l o r n E l 50 of Tota ge ta n e c r e P

25

0 1 3 5 7 9 1113151719212325

Number of Seats (Total = 25)

(Data Source: NTEC, 2004)

4.4 Summary

This chapter has provided an overview of the diversity of Australia’s electoral systems in relation to one vote, one value. It provides the context for the focus of this thesis, which is the recent attempt to bring voting equality to the Western Australia electoral system. The following chapters describe in greater detail the history of the Western Australian system, and provide an analysis of primary and secondary data to elicit an understanding of the current position. One Vote, One Value 35

CHAPTER 5

Western Australia – The Electoral System

This chapter provides a brief summary of significant aspects in the history of Western Australia’s electoral system. While not a comprehensive account, the chapter outlines the major issues relevant to the current study.

5.1 Early History

Western Australia’s electoral system has its foundation in the British system. The state was granted self-government in 1890 by Queen Victoria, and moved to a bicameral system, with the first elections for the 30 members of the Legislative Assembly held in November and December of that year (Black, 1991:12). Members of the Legislative Council continued to be appointed by the Governor, with a provision that the Council was to become elected rather than appointed once Western Australia’s population passed 60,000. This occurred in 1893, and the first Council elections were held in 1894. The Council consisted of 21 members, six representing the Perth and Fremantle urban areas, and 15 representing non-urban areas (de Garis, 1991:69).

At the time, the voting franchise for Council elections was restricted to males who were freehold owners of property, Crown leaseholders, or rented property to a certain value. The Assembly had similar franchise qualifications (de Garis, 1991:69). The combination of the non-urban weighting and restricted voting franchise ensured that conservative establishment interests controlled the Council. Women were given a limited right to vote in elections in 1899 (Sainsbury, 2001:69; Goot, 1985:181). While the voting franchise was steadily broadened, it was not until the mid 1960s when universal adult suffrage for both Houses was adopted, with Aborigines being given a full franchise entitlement to vote in One Vote, One Value 36

1962, and then in 1963, property qualifications for the right to vote in the Legislative Council were abolished (Phillips, 1991:185).

In the period from 1890 to 1900, Western Australia’s population increased from 45,000 to 180,000, largely due to the major gold discoveries of that decade. The size of the Parliament also increased, with the number of Legislative Assembly members increasing from 30 in 1890 to 50 in 1901, and the Legislative Council increasing from 15 members in 1890 to 30 in 1902, with most of these increases benefiting non-urban areas (de Garis, 1991:70). The total of 80 seats remained constant from 1902 until 1965. During this time, the average enrolment numbers for Assembly seats more than doubled from 3,277 at the 1904 election, to 7,636 at the 1962 election (Hughes and Graham, 1968:570, 586).

During this time, significant malapportionment favouring rural and North West seats continued to exist. For example, in 1917 the average enrolment in metropolitan seats was 6,108, compared to 2,642 for rural seats and 958 for seats in the North West of the state (Byrne, 1959:147). This average malapportionment of up to 6.4:1 continued throughout the twentieth century. In one particular case, the effects of malapportionment reached 65.5:1 in the late 1920s with the extremes of the seat of Canning, with 17,347 voters, and the seat of Menzies, with only 265 voters (Cash, 2001:3813). In 1929, a major redistribution of Assembly seats occurred, based on amendments to the Electoral Districts Act 1922, which required a voting weight ratio of 3:1 for the Mining and Pastoral region, and 1.5:1 for the Agricultural region, in comparison to metropolitan enrolments (Layman, 1991:165). In addition, four North West electorates had specified boundaries and were exempt from vote weighting requirements, resulting in additional voting power for these seats. The redistribution resulted in five non-urban seats being transferred to the metropolitan area (Cash, 2001:3813).

According to Layman (1991), there was general agreement between the Labor Party and the conservative parties around the middle of the twentieth century that due to the state’s geographical size and spread of population, vote weighting should continue. However, there was disagreement on the manner in which weighting should be applied (Layman, 1991:165). In 1947, the McLarty Liberal/Country and Democratic League (CDL) Government reformed electoral legislation with the Electoral Distribution Act 1947. For the Legislative Assembly, the number of North West seats was reduced to three, and two One Vote, One Value 37 zones were created for the remainder of the state, being agricultural-mining-pastoral and metropolitan, with a vote weighting of 2:1 in favour of the non-metropolitan areas (Layman, 1991:166).

The effect weakened Labor’s representation in the North West and mining areas, and conversely strengthened the Liberal Party’s position. In the 1950s, the Bert Hawke Labor Government and the Brand Liberal/Country Government both failed in amending the legislation to their own benefit (Layman, 1991:166). The Electoral Distribution Act 1947 retained malapportionment for the Legislative Council, and despite moves towards parity, in 1963 vote weighting for the Council remained 3:1 in favour of non-metropolitan voters (Layman, 1991:167).

The vote weighting in favour of rural and remote areas was seen as a distinct advantage to the conservative parties, although the Labor Party has also benefited from smaller-sized electorates in mining areas and in remote areas where there are significant numbers of indigenous peoples. In more recent decades, the National Party has been a significant beneficiary of this vote weighting. Additionally, vote weighting has assisted conservative interests to retain control of the Legislative Council since the first Council elections in 1894 up until 1997, irrespective of whether conservative parties were able to win Government.

Table 5.1 depicts the level of malapportionment that has existed for the Western Australian Legislative Assembly over the past century, using the David-Eisenberg (most extreme example of malapportionment), Dauer-Kelsay (smallest percentage of enrolments to produce a majority), and Gini (zero being absolute voting parity) indices. While it can be seen that the levels of malapportionment have generally reduced during this period, significant malapportionment remains. The high David-Eisenberg Index figure for 2001 (4.01) is partially a result of the time lag from the previous mandatory redistribution of boundaries in 1994. Subsequently, the boundary redistribution in 2003 reduced this figure (currently 2.34).

One Vote, One Value 38

Table 5.1 Historical Malapportionment in the Legislative Assembly, Western Australia (one election from each decade)

David-Eisenberg Year Dauer-Kelsay Index Gini Coefficient Index 1894 77.46 18.37 .514

1904 17.37 29.36 .337

1914 8.95 29.71 .326

1924 23.89 25.26 .402

1936 17.04 32.94 .282

1947 30.37 28.64 .351

1956 9.70 34.50 .239

1965 7.21 33.07 .250

1974 9.64 31.90 .244

1983 5.79 36.06 .194

1996 2.78 38.52 -

2001 4.01 37.80 -

2004#1 2.34 38.15 - #1 enrolments as at 13 July 2004 (Sources: Hughes, 1977b; Hughes, 1986; WAEC, 1997, 2001, 2004)

Graphs 5.1 and 5.2 illustrate the significant levels of malapportionment that currently exist for both Houses of the Western Australian Parliament (data source: WAEC, 2004). In both graphs, the Lorenz Curve steepens slightly above 25% of total enrolments, which is the level of the non-metropolitan population. While the Dauer-Kelsay Index for the Assembly is only 38.15%, it can be seen that for the Legislative Council, the number of electors required to elect a majority of Members is even lower, at 30.19% (using average enrolments per Member elected).

One Vote, One Value 39

Graph 5.1 Western Australian Legislative Assembly, enrolments at 13 July 2004

100

75

50 Percentage of Total Enrolments (%) 25

0 1 5 9 131721252933374145495357 Number of Seats (Total = 57)

(Data Source: WAEC, 2004)

One Vote, One Value 40

Graph 5.2 Western Australian Legislative Council, enrolments at 13 July 2004

100

75 ) % ( s t n e lm o r n l E a

t 50 o T f o e g a t n e c r e P

25

0 1 4 7 101316192225283134

Number of Seats (Total = 34)

(Data Source: WAEC, 2004)

5.2 Labor Party Actions towards Electoral Reform – 1970s to 1990s

The Australian Labor Party has traditionally supported the concept of ‘one vote, one value’. It has been a part of Labor’s policy platform since 1899 (McGinty, 2001a). The party sees the malapportionment in the Western Australian system as a ‘bulwark against socialism’ (Phillips, 1991:222) and a distinct advantage to the conservative parties. In 1972, the Tonkin Labor Government attempted unsuccessfully to abolish the Legislative One Vote, One Value 41

Council and establish a unicameral system for Western Australia, based on voting parity (Phillips, 1991:207; McGinty, 2001a:1851). In the late 1970s, after initially considering to seek redress through the International Court of Justice, the Labor Party mounted an unsuccessful action in the Western Australian Supreme Court, arguing that Members of Parliament are not ‘directly elected by the people’ (Phillips, 1991:218), a reference to the drawing of boundaries that supported vote weighting.

In the mid-1980s, the Burke Labor government proposed electoral reforms including the introduction of state-wide proportional representation for the Legislative Council (which at the time had dual-member electorates, with each vacancy elected every second election on a rotational basis), and the provision of one vote, one value for the Legislative Assembly (Phillips, 1991:234). In order to obtain National Party support for the legislation, which eventually passed in 1987, the Labor Party was forced to retain a level of zonation for the Legislative Council, with proportional representation based on three metropolitan and three non-metropolitan regions. While the combined metropolitan regions now had representative parity with the country regions (17 members each), the population disparity meant that a significant level of malapportionment (2.8:1) was retained in favour of the non-metropolitan regions, and the National Party’s interests (Phillips, 1991:234). In addition, malapportionment remained for Assembly elections.

In 1995, Labor Members of Parliament took a case to the High Court (McGinty and Others v State of Western Australia, HCA, 1996), arguing that the Australian Constitution incorporated legislative democracy, and through that, the equality of voting power (McGrath, 1997). The action was encouraged by a perceived willingness for the High Court to find implied rights in the Australian Constitution (Downing, 1996:1). The following year, in a four to two decision, the High Court found that there was no implied right of equality of voting power, and that there was only a requirement for ‘direct choice by the people through those eligible to vote at elections’ (Downing, 1996:2). The Court also noted that sections 7 and 24 of the Constitution, in respect to the election of Members and Senators, actually contradict the notion of equality.

The results of the 1996 election illustrate the level of vote weighting that resulted from the 1987 legislative changes to the electoral system. In the Legislative Assembly, the most extreme malapportionment occurred between the Mining and Pastoral electorate of Pilbara, One Vote, One Value 42 with 10,335 enrolled voters, and the Northern Metropolitan seat of Wanneroo, with 28,721 voters, a weighting of 2.8:1 (WAEC, 1997:118,144). Levels of malapportionment in the Legislative Council were more extreme, where the quota to elect a Member from the North Metropolitan Region was 37,402 votes, compared with only 8,707 votes for a Mining and Pastoral Region Member to be elected, a weighting of 4.3:1 (WAEC, 1997:184, 222).

5.3 Commission on Government

In 1994, the Richard Court Liberal/National Government established the Commission on Government, which, among other matters, inquired into the electoral systems for both Houses of the Parliament of Western Australia, including the possibility of introducing equality of representation (COG, 1995:291). The National Party submitted that vote weighting should be retained for rural, remote and sparsely settled areas, and considered that the proposal for voting parity was ridiculous as it had been rejected in the 1988 Commonwealth constitutional referendum. The National Party also argued that the state’s previous severe malapportionment had been removed by the 1987 electoral reforms (COG, 1995:294-5).

The Liberal Party was more equivocal, believing that voting equality should not be an absolute value, but considered on merit, while stressing the need for personal contact between constituents and their Members (COG, 1995:294). The Commission summarised the arguments that had been put forward in favour of continued vote weighting, as being: • weighting provides greater representation for groups that genuinely require it; • difficulties in servicing large and remote electorates; • with voting parity, the metropolitan vote would ‘swamp’ the country vote; • the perceived extra wealth generation in non-metropolitan areas should attract additional voting power • minority groups should be compensated through greater voting power; and • communities of interest should determine electoral boundaries (COG, 1995:341).

The Labor Party and Australian Democrats argued before the Commission against malapportionment, stating in part, that vote weighting was not a satisfactory or democratic way of compensating for issues of remoteness or inequality (COG, 1995:295). Another perspective was put forward by Dr David Black, who stated that while there may be One Vote, One Value 43 legitimate arguments in support of malapportionment, this could be addressed through vote weighting for one House of Parliament, but not both (COG, 1995:340-1). The Commission summarised the general arguments that were submitted in favour of introducing voting parity based on the one vote, one value principle as: • people have equality under the law and therefore should also have equal voting rights; • historical arguments for vote weighting are no longer appropriate; • modern communications and better resourcing can overcome problems of remote and geographically large electorates; • the meaning of ‘community of interest’ is difficult to define consistently; and • minority groups should be compensated through government actions, and not by vote weighting (COG, 1995:342).

The Commission was generally supportive of removing zonation and incorporating the principle of one vote, one value into Western Australian legislation. The Commission found that for the Legislative Assembly, there are problems related to remoteness, community of interest, and minority groups that require protection by not strictly applying the principle of voting equality, thus allowing a deviation of plus or minus 15 per cent from the average enrolment per electorate (COG, 1995:301). For the Legislative Council, the Commission recommended that regions be retained, but malapportionment be abolished, stating that there was no justification for vote weighting, and adding that due to proportional representation, there was an assurance that a diversity of views would be represented from each region (COG, 1995:342).

5.4 Election Results – 1996 and 2001

The results of the 1996 and 2001 Western Australian state elections highlight some of the impacts of the state’s electoral system and associated vote weighting. As Table 5.2 shows, at both elections the National Party achieved a share of representation far in excess of its overall level of voting support. This is primarily due to the party having a concentration of its support base in rural areas, and therefore being able to target a limited number of seats to contest (14 seats in 1996, 11 seats in 2001), thereby diminishing its possible state-wide average. In the seats it did contest, the Nationals averaged 38.2% support in 1996, and One Vote, One Value 44

25.9% in 2001, which is more comparable to the share of seats it won in the seats it contested (42.9% and 45.5% respectively) (WAEC, 1997:23, 26; 2001:23, 26).

However, because malapportionment favours non-metropolitan areas, the additional seats in the Agricultural Region have created extra opportunities for the Nationals. It is estimated that the introduction of voting parity would reduce the number of Agricultural seats in the Legislative Assembly from seven to four (McGinty, 2001a:1855). Given that the Nationals currently hold four of the seven Agricultural seats, it is understandable that the party is vulnerable to electoral reform and has traditionally supported vote weighting for non-metropolitan areas.

Malapportioned systems can benefit different parties in different areas. In the 1990s, the Labor Party was considered to benefit from malapportionment in the Mining and Pastoral Region, where it won six seats in 1993 (Black, 1996) and four seats in 1996 (with a fifth going to a former Labor Member standing as an Independent). However, these benefits were partially offset by the disadvantages experienced in other areas such as the Agricultural Region.

Table 5.2 Western Australian Legislative Assembly – Comparison of voting support and number of seats won

1996 2001 Party % Vote % Seats % Vote % Seats Labor 35.8 33.3 37.2 56.1 Liberal 39.9 50.9 31.2 28.1 National 5.8 10.5 3.3 8.8 One Nation - - 9.6 0.0 Greens 4.7 0.0 7.3 0.0 Democrats 5.1 0.0 2.6 0.0 Other 8.7 5.3 8.8 7.0 (Sources: WAEC, 1997 and 2001)

The impact of Western Australia’s absolute majority, single-member system can be seen in Table 5.2 with the minor parties, the Greens, Australian Democrats and One Nation, failing to win any seats. On the level of voting support, collectively these three parties would One Vote, One Value 45 have theoretically won six seats in 1997 and 10 seats in 2001 based on a proportional system. By comparison, the cube law works to the major parties’ advantage, with the Liberal Party in 1996 and the Labor Party in 2001 both winning a majority of seats despite achieving less than 40% support.

The difference in results achieved through a proportional representation system can be seen in the Legislative Council results in Table 5.3. The 1996 figures show some distortion for the Liberal and National parties, mainly due to these parties running joint tickets in the Agricultural and South West Regions. When viewed collectively, total Coalition (Liberal/National) voting support was 46.5% for a return of 50% of the seats. In 2001, the Greens’ disproportionately higher representation was a result of being able to win seats in the Agricultural and Mining and Pastoral Regions through preference flows, despite primary votes of only 4.5% and 4.4% respectively (quota is 16.7%).

Table 5.3 Western Australian Legislative Council – Comparison of voting support and number of seats won

1996 2001 Party % Vote % Seats % Vote % Seats Labor 33.1 35.3 37.9 38.2 Liberal 34.0 26.5 34.0 35.3 National 0.5 0.0 2.4 2.9 Liberal/National#1 12.0 23.5 - - One Nation - - 9.9 8.8 Greens 5.6 8.8 8.0 14.7 Democrats 6.6 5.9 3.7 0.0 Other 3.0 0.0 4.1 0.0 #1 The Liberal Party and National Party ran joint tickets in the Agricultural and South West Regions in 1996 (Source: WAEC, 1997 and 2001)

5.5 Current Electoral Boundaries

In 2003, Western Australia’s Electoral Distribution Commissioners reviewed electorate boundaries in accordance with the Electoral Distribution Act 1947. This required maintaining 34 electoral districts for the metropolitan area, and 23 districts for the non- metropolitan areas (section 6 of the Act), with a maximum 15% tolerance from the average enrolment allowed for each electorate. The new electorate boundaries were finalised by One Vote, One Value 46 the Commissioners in August 2003. The most recently available enrolment figures (13 July 2004) are shown at Table 5.4, and maps of the non-metropolitan and metropolitan regions and electorate (district) boundaries at Maps 5.1 and 5.2 respectively.

Table 5.4 Western Australian Enrolment Figures – Legislative Assembly Electorates (Districts), as at 13 July 2004

District Enrolment District Enrolment East Metropolitan Agricultural Armadale 27,455 Avon 13,126 Ballajura 26,547 Geraldton 13,891 Bassendean 26,453 Greenough 12,973 Belmont 26,066 Merredin 13,523 Darling Range 28,691 Moore 12,772 Kenwick 26,734 Roe 13,354 Midland 25,846 Wagin 13,451 Serpentine-Jarrahdale 26,325 Sub-Total 93,090 Southern River 25,689 Mining and Pastoral Swan Hills 25,670 Central Kimberley-Pilbara 12,516 Sub-Total 265,476 Kalgoorlie 12,913 North Metropolitan Kimberley 12,589 Balcatta 27,602 Murchison-Eyre 14,321 Carine 27,171 North West Central 14,595 Churchlands 26,968 Sub-Total 66,934 Cottesloe 27,211 South West Girrawheen 26,090 Albany 14,479 Hillarys 27,741 Bunbury 14,391 Joondalup 25,258 Capel 15,020 Kingsley 27,516 Collie-Wellington 15,006 Maylands 27,334 Dawesville 14,439 Mindarie 23,637 Leschenault 12,895 Nedlands 27,538 Mandurah 14,091 Perth 26,718 Murray 14,075 Wanneroo 29,308 Stirling 13,676 Yokine 27,436 Vasse 13,365 Sub-Total 377,528 Warren-Blackwood 15,087 South Metropolitan Sub-Total 156,524 Alfred Cove 27,402 Total – Non-Metropolitan 316,548 Cockburn 25,975 Fremantle 26,032 Murdoch 27,821 Peel 24,896 Riverton 27,935 Rockingham 25,660 South Perth 27,175 Victoria Park 25,352 Willagee 25,207 Sub-Total 263,455 Total - Metropolitan 906,459 (Source: WAEC, 2004) One Vote, One Value 47

On current figures, electorate enrolment deviations range from -11.34% (Mindarie) to +9.93% (Wanneroo) compared to the average enrolment (WAEC, 2004). When comparing non-metropolitan to metropolitan average enrolments, on current figures malapportionment favours non-metropolitan Assembly seats by 1.9:1, and Council seats by 2.9:1. Legislative Assembly electorates currently average 26,661 enrolments in metropolitan areas, and 13,763 enrolments for non-metropolitan areas (WAEC, 2004). The most extreme case of malapportionment (using the David-Eisenberg Index) for the Assembly is 2.3:1 (Wanneroo – 29,308 enrolled, Central Kimberley-Pilbara - 12,516 enrolled), and for the Council, a weighting of 4.0:1 in favour of the Mining and Pastoral Region (five seats) over the North Metropolitan Region (seven seats) (WAEC, 2004). It should also be noted that the next review of electorate boundaries is not required until after the state election due to be held in 2009, so it is reasonable to expect larger variations to occur during this time.

5.6 Summary

This chapter has presented the history of the Western Australian electoral system in relation to one vote, one value. As can be seen from the preceding discussion, moves to address malapportionment have occurred periodically over the past century. In 2001, the Labor Party again took legislative action to adopt the principle of one vote, one value. This Parliamentary action, and the subsequent Western Australian Supreme Court and Australian High Court actions, are the subject of the following two chapters, where an in- depth analysis will be provided of the public debates and private discussions that ensued as a result of the Labor Party’s push for electoral reform. One Vote, One Value 48

Map 5.1 Non-Metropolitan Regions

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Electoral map reproduced by permission of the Department of Land Information, Perth, Western Australia One Vote, One Value 49

Map 5.2 Metropolitan Regions

---Insert separate page –pg 11 from--- http://www.waec.wa.gov.au/electorate/2003/archive/Final_pdfs/Final_Part-1.pdf

Electoral map reproduced by permission of the Department of Land Information, Perth, Western Australia One Vote, One Value 50

CHAPTER 6

Western Australia – Recent Attempts at Electoral Reform

Following the December 1996 state election, the newly elected Legislative Council first sat in late May 1997. Although the Court Liberal/National Coalition had won Government, this marked the first time in the history of the Parliament that the conservative parties had lost control of the Legislative Council. The new makeup of the 34 members of the Council was 14 Liberal, 12 Labor, three Nationals, three Greens and two Australian Democrats. Following the election of a Liberal President (George Cash), this gave the non- Government members a 17-16 majority on the floor of the House. Section 14 of the Constitution Acts Amendment Act 1899 allows the President to have a casting vote when a vote is tied, but not a deliberative vote (see Appendix A).

However, it was not until after Labor won the 2001 election, and the subsequent change in the makeup of the Legislative Council, that Labor had the opportunity to legislate for significant electoral reform (Hughes, 2001:146). This chapter provides a chronological description and assessment of the events relating to electoral reform that occurred from 1996. In particular, it focuses on Labor’s attempt to introduce the principle of one vote, one value for both Houses of the Parliament of Western Australia, following the election of the Gallop Labor Government in 2001. The assessment of this period is based on an analysis of Parliamentary debates, Court decisions, and related media coverage, pertinent to Labor’s attempt to bring electoral reform legislation into law. Chapter 7 adds to this by analysing the qualitative data gathered from personal interviews. One Vote, One Value 51

6.1 Coalition Moves for Reform

In the lead up to the 1996 election, the Liberal Premier Richard Court stated that, based on an agreement between the Liberal and National parties, the Coalition would introduce one vote, one value legislation, albeit with a 15% tolerance, as recommended by the Commission on Government (Meertens, 1996:4). It was later reported that the Coalition would allow a 20% tolerance to accommodate the concerns of the National Party (Burns and Rose, 1996). In February 1997 following the election, the National Party’s State Council opposed any reforms, with its President stating that vote weighting was ‘nearly the holy grail of the National Party’ (Hughes, 1997). In March 1997, the Electoral Affairs Minister Doug Shave announced that the Government had basically shelved its plans for reform due to the National Party’s objections (Anthony, 1997).

6.2 The Lead up to Legislation

With the election of the Gallop Labor Government at the February 2001 state election, the Labor Party was able to instigate its proposed electoral reforms. The election also resulted in changes to the makeup of the Legislative Council, as Table 6.1 shows. These changes (particularly Labor winning an additional seat), and the subsequent election of a Labor President (John Cowdell), meant that with the support of the five Greens members, the Government could secure a 17-16 majority on the floor of the House.

Table 6.1 Western Australian Legislative Council – Seats by Party, 1997-2004

May 1997 Prior to 2001 May 2001#1 Current#2 Election Labor 12 10 13 13 Liberal 14 14 12 11 National 3 3 1 1 Greens 3 3 5 5 Democrats 2 2 0 0 One Nation 0 0 3 0 Independents 0 2#3 0 4#4 #1 As of 22 May 2001, when newly elected Members first took their seats #2 As of October 2004 #3 Between 1997 and 2001, two Labor members resigned from the Party and sat as Independents #4 The three One Nation members and a Liberal member (Cadby) now sit as Independents.

One Vote, One Value 52

The Labor Government moved quickly following the 2001 election, meeting with the Greens, who were to have the effective ‘balance of power’ in the Council from May 2001, to discuss possible reform options (Ruse, 2001a). Options for the Council included adjusting the number of regions to reduce the number of non-metropolitan members, or to move to a state-wide system of proportional representation. It was also acknowledged at this time that the Government would require an absolute majority of 18 votes to pass their proposed electoral reforms (Ruse, 2001a). This was due to section 13 of the Electoral Distribution Act 1947, which requires an absolute majority of both Houses for amendments to that Act to be made (see Appendix A). Section 13 is known as an ‘entrenchment’ provision, where the requirements for amending legislation are entrenched in the actual legislation. By May, the Western Australian Electoral Commission had prepared six options for reform, and the Greens had stated its support for proportional representation for the Legislative Assembly (Burns, 2001a). However, a change from single-member seats for the Assembly was not a consideration for Labor.

In June 2001 it was announced that Labor was planning to amend legislation, if the Greens members were supportive, to allow the President to have a deliberative vote, a change that only required a simple majority to pass the Council (Burns, 2001b). This would then allow the Government to make the electoral reforms it was planning, using an absolute majority of Council members, assuming that it could win the Greens’ support. In July, a poll conducted by The West Australian indicated a lack of public support for the proposed electoral changes, with even a majority of Labor supporters preferring the existing system (Tickner, 2001).

Later in July 2001, the Greens agreed to a model that would bring about voting parity for the Assembly, with the exception of a special consideration for geographically large electorates (similar to the Queensland model). However, the Greens’ model retained the existing level of malapportionment between metropolitan and non-metropolitan Council regions (Egan, 2001). The Greens’ model also included an increase of Council members from 34 to 36, based on three metropolitan and three non-metropolitan regions, each with six members. While not completely agreeable to the Council model, Labor quickly agreed to the Greens’ Assembly model, which would have the effect of transferring eight Assembly seats from country to metropolitan areas. However, the support of all the Greens members was soon in doubt, with the Greens’ Agricultural Region member, Dee One Vote, One Value 53

Margetts MLC, reported as supporting a referendum on the issue and wanting ‘more detail on the package before deciding how she would vote’ (Ruse, 2001b).

6.3 The Gallop Labor Government Introduces Legislation

On 1 August 2001, Labor’s Minister for Electoral Affairs (and Attorney General) Jim McGinty introduced his party’s electoral reform legislation, the Electoral Distribution Repeal Bill 2001 (the Repeal Bill) and the Electoral Amendment Bill 2001 (the Amendment Bill), into the Legislative Assembly.

6.3.1 The Electoral Distribution Repeal Bill 2001

The primary purpose of the Repeal Bill was to repeal the Electoral Distribution Act 1947, which provides the basis for the current system of vote weighting for non-metropolitan regions and electorates. Other clauses of the Bill made consequential and transitional amendments to legislation related to the repeal of the Electoral Distribution Act 1947.

6.3.2 The Electoral Amendment Bill 2001

The Amendment Bill primarily sought to apply the principle of one vote, one value to Assembly elections. This was to be done by transferring the relevant sections of the (to be) repealed Electoral Distribution Act 1947 into an amended Electoral Act 1907, with the major modification being that the division of enrolments into electorates would be on a state-wide basis, with: • for electorates of less than 100,000 square kilometres, projected enrolments to be within a plus or minus 10% tolerance from the state average district enrolment; and • for electorates with an area of 100,000 square kilometres or more, weighting would be added in two ways, with; - an ‘additional large district number’, being 0.5% of the electorate’s area in square kilometres (‘notional’ enrolments), to be calculated and added to the number of actual enrolments, and - a broader tolerance of projected enrolments (notional and actual) to be allowed, within plus 10% or minus 20% of the state average district enrolment. One Vote, One Value 54

In his third reading response to the Amendment Bill, Jim McGinty stated that the legislation did not represent absolute principles of one vote, one value (referring to the special provisions for large electorates and the lack of reform of the Legislative Council) because it reflected a compromise position that took into account the Greens’ requirements (McGinty, 2001b:3472).

Combined, these two Bills would also have the effect of consolidating the state’s two major pieces of electoral legislation into one Act. More importantly though, in the context of the ensuing debate, by repealing the Electoral Distribution Act 1947 Labor also expected to be able to avoid the Act’s section 13 provision requiring amendments to that Act to be passed by an absolute majority.

6.4 The Parliamentary Debates

6.4.1 The Legislative Assembly Debate

The Legislative Assembly debated the two Bills in August and September 2001, with Dan Barron-Sullivan (now Dan Sullivan) MLA, the Deputy Leader of the Opposition, putting forward the main arguments in the Coalition’s opposition to the Bills. These were: • that 40% of the Assembly represented 99.8% of Western Australia (geographically), and the shift of seats to metropolitan areas would reduce the voice that country people have, and therefore the need for better services for regional areas would less likely be addressed; • because the Bills were specifically designed to circumvent the entrenchment provision of the Electoral Distribution Act 1947, this avoided the higher level of approval that was intended for electoral reforms; • the lack of entrenchment provisions in the new legislation; • the tolerance allowed was plus or minus 10%, rather than the 15% recommended by the Commission on Government; • the use of ‘notional’ enrolments for geographically large electorates would specifically favour Labor interests; • while the legislation sought to introduce ‘one vote, one value’, the use of ‘notional’ enrolments subverted this aim; and One Vote, One Value 55

• that a referendum was needed to get the people’s approval for the changes the Labor Government was proposing (Barron-Sullivan, 2001:2731-2740).

The National Party also opposed the legislation, with its leader Max Trenorden MLA, putting forward the party’s arguments against the legislation as follows: • it would turn country people into second-class citizens; • it was designed specifically to advantage the Labor Party; • the concepts of fairness and community of interest were ignored; • people would be disenfranchised, especially Aboriginal people; and • the Bills would remove diversity of representation (Trenorden, 2001:2740-2745).

During the debate, the reference to diversity of representation was clarified in meaning that the reforms would reduce the National Party’s representation in the Assembly below the level of having parliamentary party status (minimum of five Assembly members), and therefore National Party members would be less effective at representing country people’s interests (Trenorden, 2001:2744). Despite much heated debate and numerous amendments put forward by the Opposition, the Government used its majority to defeat the Opposition’s amendments. The Amendment Bill was passed by the Assembly on 30 August 2001, with the Repeal Bill passing two weeks later, on 13 September 2001. Both Bills were unamended.

6.4.2 Initial Legislative Council Debate

On the same day that the Assembly was passing the Amendment Bill, action had already commenced in the Legislative Council, with the Opposition giving notice of a motion (notice given by George Cash), asking whether the Attorney General would seek a declaration from the Western Australian Supreme Court on the legitimacy of passing the Bills without an absolute majority (Western Australia - Legislative Council, 2001:192). Although opposed by the Government, the motion was successful on 19 September 2001, with the support of Coalition, Greens and One Nation members (Hansard, 2001:3943- 3955). The Attorney General subsequently stated that he would not take such action (SCL, 2001:110).

One Vote, One Value 56

Debate on the Amendment Bill commenced in the Council on 18 September 2001, with the Coalition expanding on the arguments that had been put forward in the Assembly. The Greens gave conditional support for the Bill, supporting one vote, one value for the Assembly, but stating that the legislation did not address the need for reform of the Legislative Council (Sharp, 2001:3825). The main issues raised by the Greens were: • the Council’s regional boundaries should be based on natural entities, or bioregions, rather than on population dispersion; • vote weighting should be retained for the Council to protect the interests of regional areas; • support for an increase in the number of Council members from 34 to 36, based on six regions of six members; • support for community consultation on electoral reform issues by referring the Bills to a Standing Committee on Legislation inquiry; and • concern that the electoral reform issues were too complex to be properly put forward in a referendum (Sharp, 2001:3824-4084). The position of the One Nation party was clear opposition to the reforms, on the basis that the legislation diminished the representation of country interests (Embry, 2001:4210- 4214).

6.4.3 Standing Committee Inquiry

Before the second reading debate on the Amendment Bill was concluded, and prior to debate on the Repeal Bill, on 27 September 2001 the Council referred both Bills to the Standing Committee on Legislation. The Standing Committee’s membership for the inquiry was three Labor, two Liberal, a Green, and a One Nation member. Interestingly, the parliamentary experience of the two Liberal members on the Committee, George Cash (a former Council President) and Peter Foss (a former Attorney General), totalled 29 years. By comparison, the three Labor members, Jon Ford, Kate Doust and Adele Farina, had only taken their seats in Parliament less than six months earlier. The inquiry took written submissions and held public hearings in regional centres.

The Committee’s report (SCL, 2001) was tabled in Parliament on 27 November 2001. In the report, the Committee made a total of 31 recommendations, with 12 of these supported by all Committee members. The recommendations with unanimous support were: One Vote, One Value 57

• Recommendation 1 - That redistributions occur after each general election, for the purpose of creating more even distributions within the allowable deviations. The Amendment Bill had proposed that redistributions occur after every second election, as is currently the case (p. 24); • Recommendation 2 - That the proposed section 16H in the Amendment Bill, relating to projection times, be deleted. This was a minor change, as a consequence of the first recommendation (p. 24); • Recommendation 3 – That a minor amendment be made to the proposed section 16L, again as a consequence of the first recommendation (p. 24); • Recommendation 7 – That the existing balance between regions based on metropolitan and non-metropolitan regions should be retained (p. 99); • Recommendations 10-14 – Five recommendations relating to members being provided with additional resources, reflecting the needs of their electorates (p. 141-142). • Recommendation 15 – That a parliamentary inquiry be held relating to issues of representation of indigenous people (p. 149); • Recommendations 16-17 – That Committee public consultation processes be reviewed (p. 152-154).

Therefore, apart from maintaining the existing weighting in favour of non-metropolitan Council regions, the Committee was unable to agree on any other issues relating specifically to electoral reform. This was not surprising, given the previously stated positions of the different parties. The remaining 19 recommendations were made with either majority or minority support, reflecting the party positions of the various Committee members. Of particular importance though was Recommendation 5, supported by the Liberal, Greens, and One Nation Committee members, which recommended that the Legislative Council take action to obtain a Supreme Court ruling on the legality of the Bills being presented for Royal Assent in the event that they were passed without an absolute majority (SCL, 2001:24). This further indicated that there would be a willingness for the Council to pursue clarification from the Supreme Court on the ‘absolute majority’ question.

One Vote, One Value 58

6.4.4 Action by the Clerk of the Parliaments

Following the tabling of the Standing Committee report, the Clerk of the Parliaments, Laurie Marquet (also the Clerk of the Legislative Council) informed the President that in the event that the Repeal Bill was passed by the Council without an absolute majority, he intended to seek a declaratory statement from the Supreme Court as to whether he could present the Bill for Royal Assent (Cowdell, 2001a:5953). The major contention in this aspect of the debate was whether the repeal of the Electoral Distribution Act 1947 actually constituted an ‘amendment’ of the Act, which would therefore require it to be passed with an absolute majority, as per section 13 of the Act. The President informed the Council of the Clerk’s position on 28 November 2001, prior to the recommencement of debate on the Amendment Bill.

6.4.5 Renewed Parliamentary Debate

The second reading of the Amendment Bill was passed on 4 December 2001, by 14 votes to 13. Following a request from Peter Foss MLC, the President ruled that he would not impede the progress of the Bill, and that he would leave matters relating to the possible need for an absolute majority (18 votes) for the Supreme Court to decide (Cowdell, 2001b:6258). During the Committee stage, amendments were made to the Bill, primarily changing the redistributions requirement, in line with the Standing Committee recommendation. Additionally, the Greens’ amendments to increase the number of Council numbers to 36 were passed with the Government’s support, based on the understanding that the Government would subsequently defeat these amendments in the Assembly and insert their own amendments to achieve the same purpose. This was a technical arrangement due to the prohibition on amendments that impose an additional appropriation of money being passed by the Council.

The third (final) reading of the Bill was passed on 12 December 2001, again with a 14 to 13 majority, and returned to the Assembly, due to the amendments made. The Government then used its numbers in the Assembly to make the changes for the new Council structure. These were subsequently agreed to in the Council on 20 December 2001, thus concluding the passage of the Amendment Bill through the Parliament. In the meantime, the Council had also commenced debating the Repeal Bill on 11 December One Vote, One Value 59

2001, with the Bill passing by 14 votes to 13 at the second reading, and by 13 votes to 12 at the third reading on 19 December 2001.

6.4.6 Summary of Parliamentary Actions

Within a period of less than five months, the Labor Government had been able to pass its electoral reform legislation, with the support of the five Greens members in the Legislative Council. Despite a Standing Committee inquiry, lengthy and heated debates in both Houses which included numerous amendments being moved and points of order being called, the legislation passed without any major changes to the original model that had been agreed to between the Government and the Greens prior to the legislation being introduced. In terms of impact on the value of a person’s vote, the only amendment of any significance that was passed was the provision for redistributions to be held after each general election. However, before the legislation could become law through receiving Royal Assent, the question of whether the Repeal Bill was bound by the ‘absolute majority’ provision of the Electoral Distribution Act 1947 was still to be answered by the Western Australian Supreme Court.

6.5 Supreme Court Action

Following the passing of the legislation, the Clerk of the Parliaments, Laurie Marquet, sought a declaratory statement from the Supreme Court on the validity of the Bills. Mr Marquet did not take a preferred position on the issue, but wanted a definitive answer from the Court (Tickner, 2002:21). Justice John McKechnie required that an opposing case to the Government’s support for the legislation would need to be presented to the Court (Pryer, 2002:4). This resulted in delays due to the need for a case opposing the legislation to be financed and prepared. Debate ensued between the Government and opposition parties over who should finance the action, with a ‘country alliance’ of opposition parties and rural groups finally agreeing to fund the alternative case (Clery, 2002:35).

The five-member full bench of the Supreme Court heard the case in April 2002. The Government put forward three main arguments in support of the legislation, being that: • repealing an Act is not the same as amending it, and therefore section 13 of the Electoral Distribution Act 1947 did not apply; One Vote, One Value 60

• it is not competent for a Parliament to bind a future Parliament in the way that section 13 of the Electoral Distribution Act 1947 does; and • section 13 of the Electoral Distribution Act 1947 had been repealed implicitly by section 2(3) of the Acts Amendment (Constitution) Act 1978, which added new subsections, stipulating specific actions which required an absolute majority, to section 73 of the Constitution Act 1899 (see Appendix A). The ‘country alliance’ put forward counter arguments to those of the Government.

In a four to one decision the Supreme Court delivered its ruling on 11 October 2002 (Marquet v the Attorney-General of Western Australia [2002], SCWA, 2002), stating that an absolute majority was required to pass the legislation in the Legislative Council. In summary, the ruling stated that: • Parliament intended that the word ‘amend’ encompassed a repeal of the Act (SCWA, 2002:22); • Parliament is able to enact a manner and form provision that requires a particular majority to amend or repeal legislation (SCWA, 2002:26); and • the legislation was captured by section 73 (1) of the Constitution Act 1899, irrespective of the later subsections of section 73 (SCWA, 2002:25).

This meant that the Bills could not be presented for Royal Assent and represented an emphatic win for the opponents of the Government’s electoral reforms. It also shifted attention to the issue of amending section 14 of the Constitution Acts Amendment Act 1899 to give the President a deliberative vote in the Legislative Council. If the Greens were to support such a change, the Government could achieve the absolute majority that was required, as ruled by the Supreme Court.

6.6 High Court Action

Prior to the commencement of Supreme Court proceedings, there was a public expectation that the issue may reach the High Court of Australia (Burns, 2002:16). A month after the Supreme Court decision, Premier Geoff Gallop announced that the Government would appeal the decision to the High Court, stating that the Government’s legal advice was that an appeal ‘should succeed’ (Shine, 2002:4). A week after the Premier’s announcement, the High Court action became even more critical when the Greens stated that they would not One Vote, One Value 61 support legislation giving the President a deliberative vote. The Greens position was on the basis that their legal advice had shown that section 73 of the Constitution Act 1899 already provided the President with a deliberative vote on constitutional matters, and that further legislation to provide a deliberative vote would affect the impartiality of the President’s position (Harvey, 2002:3).

The Gallop Government was keen for the High Court to finalise the action in sufficient time to allow a statutory redistribution to occur ahead of the following state election, due in early 2005. The Court agreed to expedite the case, and at a referral hearing in April 2003 set an August 2003 date for the full bench of the High Court to hear the matter. The interests of political parties became further apparent with the appeal attracting legal intervention from the Labor Governments of Queensland and New South Wales, in support of the Gallop Government (Martin and Pitsis, 2003:4), and the Federal Attorney General (Daryl Williams, a West Australian Liberal) intervening to argue against the electoral reforms (Martin, 2003:4).

The High Court (minus Justice McHugh, who was ill at the time) delivered its decision on 13 November 2003, upholding the Supreme Court decision, and therefore ruling the electoral reform legislation invalid, by a five to one majority (Attorney-General (WA) v Marquet [2003], HCA, 2003). The decision addressed all aspects of the Supreme Court ruling, and agreed with the Supreme Court that the term ‘amend’ included ‘repeal’. Additionally, the Court argued that with the repealing of electoral boundaries there is an implicit and required redrawing of boundaries for an election to be held, and therefore the legislation constituted a repeal and simultaneous amendment of boundaries (Clery and Martin, 2003:8). In his dissenting judgment, Justice Michael Kirby argued that the word ‘amend’ is usually used in reference to partial repeals, where words or sections of an Act may be deleted, whereas the total repeal of an Act should not be referred to as an amendment (HCA, 2003:27).

6.7 Summary

The High Court decision brought to a conclusion the three-year battle that the Gallop Government had waged to introduce the one vote, one value principle to Western Australia’s electoral laws. While this chapter has provided an assessment of the public One Vote, One Value 62 debate on the issue, the following chapter will analyse the roles of the political stakeholders who participated in the debates, using qualitative data to provide insight into the strategies used, and the level of success achieved. One Vote, One Value 63

CHAPTER 7

Findings

The community debate on the merits of voting equality that ensued as a result of the Gallop Government’s push for electoral reform was largely influenced by the public arguments put forward by the political parties and the consequent media commentary. However, similar to most parliamentary political environments, negotiations and strategies that are not necessarily obvious to outside observers are being played out. This chapter assesses a number of significant issues related to the legislative reform by analysing interview material, and examining parliamentary debates and media coverage. Due to the sensitive political nature of the issues discussed in this chapter, interviewees’ quoted comments are not attributed. The analysis and assessment extends the understanding of the actions taken in the debates.

7.1 The Impact of One Vote, One Value on Labor and the Coalition

At the time of the legislation, Labor held a significant number of metropolitan seats (71% of the 34 seats), but a far smaller proportion of non-metropolitan seats (35% of 23 seats, see Table 7.1). It should be noted that a modest increase in primary voting support resulted in Labor winning a disproportionately higher proportion of seats in the 2001 election (see Table 5.2). This was due to the effect of the simple plurality electoral system for single- member seats. It was generally agreed during the Parliamentary debates that Labor’s proposed reforms would result in a shift of eight Legislative Assembly seats from country regions into the metropolitan area, with the Mining and Pastoral Region losing two seats, the Agricultural Region three seats, and the South West Region three seats (see Table 7.2). Despite Labor’s current metropolitan representation being at a historically high level, it is likely that at future elections Labor would win at least four, and possibly five or six of the eight additional seats created in the metropolitan regions. One Vote, One Value 64

Table 7.1 Western Australian Legislative Assembly – Seats by Party, August 2001

Non-Metropolitan Party Metropolitan Total Min. & Past. Agricultural South West Labor 24 3 1 4 32

Liberal 7 2 2 5 16

National - - 4 1 5

Independents 3#1 1#2 - - 4

TOTAL 34 6 7 10 57 #1 Considered to be conservative seats, and formerly held by the Liberal Party #2 Held by a former Labor member (Source: Parliament of Western Australia, 2004)

In the non-metropolitan regions, the Greens’ requirement of a consideration for geographically large electorates meant that the Mining and Pastoral Region would lose only two Assembly seats, rather than the three seats it would lose under a system based strictly on voting equality. A probable impact of this provision would result in Labor being able to retain a seat at the expense of a Coalition seat in the other non-metropolitan regions. Labor acknowledged that this special exemption from one vote, one value would be to its own advantage, but argued that the exemption was included in the legislation due to the Greens’ insistence.

Table 7.2 Labor’s Proposed Reform of Legislative Assembly seats

Seats under Proposed Region Current Seats Change Reform Metropolitan (3 regions) 34 42 +8

Mining and Pastoral 6 4 -2

Agricultural 7 4 -3

South West 10 7 -3

TOTAL 57 57 -

One Vote, One Value 65

Overall, the eight seats to be shifted from non-metropolitan regions to metropolitan regions were primarily Coalition seats, with an estimation that only one or two Labor seats would be lost in the proposed change. The most severe negative impact would be on the National Party, with an anticipated loss of three seats, primarily as a result of its concentrated voting support in the Agricultural Region and lack of support in metropolitan regions. Based on an assessment of the 2001 election results and data from the interviews, the overall political impact of Labor’s reforms would be a net gain to Labor of between two to four seats, a loss of two or three seats for the Nationals, and a negligible overall effect for the Liberals, estimated to win between two to four seats in the metropolitan area, compensating for non-metropolitan losses.

7.2 The Role of the Greens

As previously discussed, the composition of the Legislative Council meant the Greens have played a pivotal role in Western Australia’s electoral reform debates over the past four years. Within a month of Labor winning the 2001 election, Labor’s Electoral Affairs Minister, Jim McGinty, approached the Greens to seek their position on the Government’s proposed electoral reforms. It is standard practice for the Minister to seek support for legislation prior to introduction, and the Government was in this instance keen to identify any concerns that the Greens may have that could possibly be accommodated in the drafting of the legislation. Labor’s proposal was for one vote, one value to be adopted for both the Assembly and the Council, with an allowable 10 per cent tolerance for Assembly seats. For the Legislative Council, Labor was open to the idea of either amalgamating existing regions into a single state-wide electorate, or retaining regionalism, but with revised boundaries drawn using voting equality principles. As explained by a Greens interviewee:

They [Labor] were very keen on a straightforward model for the Assembly and they seemed to be more flexible about the Upper House, but basically they wanted the Upper House to be on a one vote, one value system too, and there were two ways you could do that. Either you went to a model where there was one state-wide seat on one vote, one value principles, or One Vote, One Value 66

there was a radical realignment of the regions in order to remove vote weighting.

7.2.1 Determining the Greens’ Position

To determine a position, the Greens undertook an extensive consultative process both within and outside the party. While the majority of party members supported electoral reform, the Labor proposal had created enormous angst between the five Greens MLCs, producing conflict between metropolitan and country-based members (Margetts, 2001:6123). The issue highlighted differences of opinion, with the three Greens MLCs representing non-metropolitan regions being concerned that their constituents could be ‘disenfranchised’ by the proposed reforms. However, the South West Region Greens Member, initially opposed to the concept of one vote, one value, changed to support the concept following research into the issue. Other Greens representatives also had similar conflicts between their personal beliefs in supporting the principle of voting equality, and their role in representing their constituents. For example:

There were differences, there are no two ways about it, but there were no differences that were sticking points … there was no angst in a sense…I think the greatest differences most probably occurred amongst those of us who had internal differences, for me personally, I am very passionate about one vote, one value, its social base. I’m also quite passionate about my regional representation.

The Greens MLCs adopted a consensus approach in determining their position, which allowed for Margetts’ opposition to a blanket application of the one vote, one value principle. This was achieved by making concessions to allow for a special provision for geographically large electorates, and the maintenance of vote weighting for the Legislative Council, but with an adjustment to provide all six regions with six members. The Greens perspective was summarised by one interviewee:

I would have preferred to have a purist model but that was Dee’s [Margetts] suggestion and because of the five of us, Dee was always the One Vote, One Value 67

most reluctant of the Greens to work with the Government on this and that was something that she insisted upon.

The Labor perspective on the Greens position is illustrated below:

Our preference was 10% variance, common quota overall, however we had to find a formula…The Greens insisted on weighting for Mining and Pastoral, the most remote area, and the nearest acceptable thing we could come to was the formula for the six remote seats…Indeed it would advantage Labor, the joke was that our model didn’t accord any special margin for Mining and Pastoral, it was a Greens insistence based on an argument more for remoteness and biodiversity type…we didn’t go in seeking that.

7.2.2 The Greens Model – Self-Interest or an Ethical Position?

The effect on the Greens’ ability to retain or win seats by moving to a ‘six by six’ model can be seen in Table 7.3. From this, it appears that the Greens model would assist the party to retain its South Metropolitan, Agricultural, and Mining and Pastoral seats, by reducing the required quota from 16.7% to 14.3%. In addition, it would improve the Greens’ chances of winning a seat in the East Metropolitan Region. However, the Greens seats in the North Metropolitan and South West regions (won in 1996 and 2001) would come under threat due to an increase in the quota from 12.5% to 14.3%.

Table 7.3 The Greens Model for the Legislative Council

Current Greens Existing System Greens Model Region Greens Vote 2001#1 Member (%) Members Quota (%) Members Quota (%) East Metro. No 6.4 5 16.7 6 14.3

North Metro. Yes 9.7 7 12.5 6 14.3

South Metro. Yes 9.0 5 16.7 6 14.3 Agricultural Yes 4.5 5 16.7 6 14.3 Min. & Past. Yes 4.4 5 16.7 6 14.3

South West Yes 8.5 7 12.5 6 14.3 #1 Source: WAEC, 2001 One Vote, One Value 68

On balance, the model appears to disadvantage the Greens, especially when the party’s primary vote is taken into account. It should be noted that the Greens have never achieved a quota with their primary vote and thus have always had a reliance on preferences to win seats. This was particularly the case in the Agricultural, and Mining and Pastoral regions in 2001, where the Greens primary vote was little more than a quarter of a quota. It is anticipated that preference arrangements will remain a significant factor in the Greens prospects at future elections. In determining a model, the Greens sought a balanced position that neither seriously advantaged or disadvantaged the party, and it appears they were successful in achieving that objective. The following comments illustrate the Greens’ views on the model:

We actually came up with the model, and then we went away and did the numbers, and in fact the model doesn’t support us…I think the model and the ethos was far more important to us than what it actually meant to us.

The electorate suicide model…when we were going through the process of devising that, I got advice that the six by six model was roughly neutral. There were certain people, and academic people that made contact with me to suggest that it was actually a very bad model for the Greens…I’m not so altruistic as to want to advocate a position that was suicidal for the Greens but nor did we want to come up with a position that was blatantly self-interested. We actually wanted to come up with a position that we could sit comfortably with ethically.

7.2.3 Strategic Response to the Greens Model

In drafting its legislation, the Labor Government reluctantly accepted maintenance of malapportionment for the Legislative Council, including the Greens ‘six by six’ model’, and adopted the special provision for remote areas. However, the Government did not include in its Amendment Bill the increase in Council numbers, which the Greens made clear was necessary if they were to support the reforms. This meant that the Greens were forced to initiate amendments to increase the number of members from 34 to 36, and take the force of public and media criticism for imposing the costs of two additional Members One Vote, One Value 69 of Parliament. Simultaneously, the Government was able to state opposition to the imposition of the added costs, and claim they were being forced into supporting the change in order to have their electoral reforms passed (Burns, 2001c:8). This stance enabled the Labor Government to deflect public and media criticism of the Greens ‘six by six’ model, despite having privately agreed to it, albeit reluctantly. The following comment from a Greens interviewee illustrates this:

The Labor Party brought this in cold, and let us take the heat, as it were.

The Labor perspective:

Our proposal was not to have that exception, the Greens insisted on that exception as a condition of their support. The Bill made no impact on malapportionment on the Upper House. We saw no reason to do that, we saw no reason to increase the Council from 34 to 36. It was the price we had to pay. That was the agreement. You would see the original Bill really didn’t make sense. The original Bill was structured knowing that the Greens would amend it this way in the Upper House as their requirement, but it was our clear understanding that that’s what they’d do and we’d cop it. The Bill was structured such, and its structured in a funny way if you look at it, its structured such as to allow the Green amendment in the Upper House to do that. And that was the understanding, yes we weren’t going to introduce it that way but we understood that we would accept an amendment along those lines.

The Greens had only acquired its ‘balance of power’ position with the change of members in May 2001, and the electoral reform legislation was an early and significant test of the Greens’ use of this position. They appear to have handled that role competently, particularly in dealing with the different viewpoints of their MLCs. The need to resolve this internal conflict was also acknowledged as being beneficial for establishing sound decision-making processes between the Greens MLCs. However, strategically they allowed themselves to be exposed to public criticism by not requiring that Labor include the entire Greens model in its legislation.

One Vote, One Value 70

Conversely, Labor was aware they would face heavy criticism, particularly from the Opposition and rural interest groups, by reducing representation in country areas, especially because of the adoption of an exemption from one vote, one value that could be construed as manipulation of the system to their own advantage. However, Labor was able to ensure that during the parliamentary debates on the Bills, the Greens would be blamed for the proposed change in Legislative Council numbers, regardless of maintaining the malapportionment that Labor’s opponents were supporting. As a result, media commentary centred negatively on the Greens role, with headlines such as ‘Greens threat to vote reform’, ‘Reform move simplistic, selfish and undemocratic’, and ‘Vote reform comes at a cost’ (Ruse, 2001c:8; Hawkes, 2001:21; The West Australian, 2001:20). However, public awareness of the Greens ‘balance of power’ role was clearly increased by the media debate, subsequently allowing the party to more effectively publicise its position on other legislation.

7.3 The Role of the Coalition Parties

7.3.1 Liberal Party

Given that one of the Liberal Party’s fundamental beliefs is ‘equal opportunity for all Australians’ (Liberal Party of Australia, 2004), it may initially be surprising to an outsider that the party took a position so vehemently opposed to Labor’s legislation, especially as the reforms were expected to have a negligible effect on the number of Liberal Party seats. However, the Western Australian division of the party has generally held only conditional support for voting equality, due in part to the state’s geographical size and population spread, which, it is argued, requires special consideration. Although it was stated that there was a unanimous decision within the Liberal Party caucus to oppose Labor’s Bills (Barron- Sullivan, 2001:2732-3), indications are that a significant number of Liberal members are supportive of one vote, one value, and would cross the floor and vote with the Government if not bound by party discipline. The following comments illustrate this:

If they were given a free vote on the issue, there were a number of Liberals who would cross the floor and I suspect the majority of their members in the Upper House would be in that position to cross the floor and vote with the Labor Party, but it was introduced in such a way that it polarised views from the outset. One Vote, One Value 71

Almost half of the parliamentary Liberal Party were in favour of the change.

As nine of the Liberal Party’s 16 Assembly members held non-metropolitan seats, it is understandable that concern would arise within the Liberal caucus from country members whose seats were under threat of disappearing in a redistribution based on voting equality. In addition, the Liberal Party has historically required National Party support to form Government, and so it is important for the Liberal Party to retain a reasonable working relationship with its Coalition partner. However, some members of the Liberal Party would appreciate not having to accommodate the Nationals, and see electoral reform as a way to achieve this, provided there is no overall loss of conservative seats. As one interviewee stated:

There is a strain of opinion within the Liberal Party that sees one of the great advantages of ending malapportionment is ending the existence of the National Party, who they see as a major nuisance and that if eight seats go to the city, the Liberal Party may only get four out of the eight, but the National Party will get none, and that’s seen as a distinct advantage.

7.3.2 National Party

The National Party is the only party clearly advantaged by the current malapportionment existing in the Western Australian system. Thus, it is not surprising that the party has fought vehemently against the introduction of one vote, one value. The combination of geographically concentrated voting support, and the effect of malapportionment providing a greater number of rural electorates in comparison to an equally apportioned system, has allowed the Nationals to remain a significant political party in Western Australian state politics. In their opposition to the Government’s proposed reforms, a key Nationals’ strategy was an attempt to delay legislation by moving amendments and motions, in the hope that this would allow time for public pressure tactics to be used. A further strategy included targeting new country Labor members in the belief that they may inadvertently One Vote, One Value 72 contradict the Government’s position when making public statements (National Party, 2001:1).

An indication of the National Party’s motives is evident in its strategy to amend the legislation in two ways. First, the party considered an amendment to return the Legislative Council to single-member electorates, with 15 metropolitan electorates and 15 non- metropolitan electorates. This amendment would have the dual effect of firstly, removing proportional representation, and probably eliminating the Greens from the Parliament, but leaving the Nationals able to win two or three seats in their Agricultural heartland; and secondly, retaining the existing level of malapportionment. The second proposal was to broaden zonation for Assembly electorates, with metropolitan, regional, and remote zones. Under this proposal, weighting would be allowed for regional and remote electorates (National Party, 2001:5). Although not ultimately moved in Parliament, these proposals give an indication of the National Party’s preferred electoral system.

7.4 Initiating Supreme Court Action

The Clerk of the Legislative Council holds the position of Clerk of the Parliaments (the effect of a Joint Standing Order), with the Clerk of the Parliaments being responsible for presenting Bills for Royal Assent following their passage through Parliament. One of the main roles for the Clerk of the Legislative Council is to provide legal advice to the Council and the President. Since 1995, the Clerk is also the accountable officer for the financial management of the Council. The duality of these roles created some tensions between the current Clerk and the Labor Government during the progress of the Bills and the subsequent Supreme Court action. Although the Clerk’s action in seeking a declaratory statement from the Supreme Court was taken with the support of the Council, it was viewed by the Government as thwarting its agenda. Labor only supported the Supreme Court action under sufferance, knowing that the Bills would be defeated if a declaratory statement was not sought. The following Labor comment illustrates this:

The Greens said to the Government that there was some doubt about the legality of the Bills and it all looked a bit shonky… therefore they said to us they were not willing to pass the Bill at the third reading unless we can assure them that they’re legally in order. They were not satisfied with One Vote, One Value 73

respect to Solicitor General’s opinions or anything else and basically without this device it looked as though the Greens would defeat it at third reading. This was concurred under much sufferance by the Government…because at least it affected the passage of the Bills and we had some chance in the courts.

The Gallop Labor Government has been able to limit the effectiveness of the Council through reductions in its appropriations. While this also occurred with the previous Richard Court Coalition Government, the debate on the electoral reform Bills highlighted the critical role the Council can play, especially in this case by conducting a committee inquiry and initiating court action. The limitations placed on the Council are illustrated by the following comments:

The Council’s vote [appropriation] has diminished in real terms by 23 per cent since 1999. The Upper House of course is always seen as a bloody nuisance so you keep them on a very tight financial string. I think it’s a deliberate ploy on the part of Government to starve the Council of funds. That way it won’t become a nuisance. Its better to keep the Council muzzled by a starvation of funds rather than let them run riot.

His [the Clerk’s] decision to refer caused a huge rift between him and the Labor Party and subsequent funding issues and all sorts of things. As a result since then Laurie’s [the Clerk’s] budget was decimated. A lot of the stuff about the irrelevance of the Upper House and should it be abolished arose out of that.

It should be noted that the Gallop Government was the first Labor Government to have the opportunity to deal with a Legislative Council that was not controlled by conservative parties. It was a unique opportunity therefore to negotiate with a ‘left of centre’ party to pass legislation. However, having won support from the Greens for electoral reform, it appeared that Labor had fallen at the final hurdle due to the Clerk’s advice to seek a declaratory statement from the Supreme Court. This was noted by one interviewee:

One Vote, One Value 74

The Government was confident that the legislation would go through with a majority of seventeen - sixteen. It didn’t anticipate the whole process being wrecked by a non-elected official. It certainly took them by surprise.

7.5 Further Negotiations

The pivotal issue in the electoral reform debate was whether the absolute majority requirement in section 13 of the Electoral Distribution Act 1947 applied to Labor’s electoral reform Bills. If section 13 did not apply, as was Labor’s contention, the Bills would have become law shortly after being passed by the Legislative Council in December 2001. Labor had a reasonable expectation that they had framed the Bills in such a way as to avoid the section 13 requirement, as it had obtained advice to that effect from Crown Counsel and the Solicitor General. The Government had not considered that its legislation may require an absolute majority to pass.

Following the Supreme Court decision that an absolute majority was required to pass the legislation in the Legislative Council, the Government was left with three choices – accept the decision and not pursue the reforms any further; challenge the decision in the High Court; or pursue changes to the legislation that would win support of an absolute majority. While the first option was not seriously considered given the importance Labor placed on the reforms, the Government used its High Court appeal as a bargaining point in attempting to win Liberal support, as a Labor interviewee explains:

It was partially based on it being a further negotiating chip that once the Greens continued to be intransigent…we went back to the Libs and said, look, you risk being overturned in the High Court and losing everything. We offered to cut a half-way house deal...the Libs would have extracted a high price for their co-operation. Whether we could have paid that in the end is a different matter. The price was the destruction of proportional representation in the Upper House, reintroduction of a staggered term, with the current six regions, which would put the quota at thirty per cent or above…it destroys minor representation effectively.

One Vote, One Value 75

The reintroduction of staggered terms would mean that Members of the Legislative Council would be elected for two terms (eight years), with only half of the Council seats up for election at each general election. This would effectively double the quota required for election. However, before the High Court made its decision, the Western Australian Electoral Distribution Commissioners published their decision on its redistribution of electoral boundaries, which was seen to favour the Liberal Party. Following this, the issue of a compromise was not pursued further, prior to the High Court decision. As observed by one interviewee:

People like Dan [Sullivan] the man who had a very nice sixty-two per cent Leschenault seat decided they had no interest in overturning this draft redistribution.

7.6 A Deliberative Vote for the President

The possibility of amending section 14 of the Constitution Acts Amendment Act 1899 to give the President a deliberative vote was raised at the time of the Standing Committee inquiry in 2001. The Greens sought views from constitutional lawyers on the issue of whether the President had a deliberative vote under existing legislation. While they received a variety of opinions, the Greens came to a view that an existing right to a deliberative vote existed, as one interviewee illustrates:

Even when we were going in to vote on the Bill, we were encouraging the President to vote…not withstanding the advice we subsequently received…we actually believed…the view that the President had the vote anyway.

The Supreme Court decision confirmed that the Labor Government would need an absolute majority to pass its electoral reforms. The Greens preferred position was for legislation to be amended to clarify the President’s voting rights, but in doing so, the Greens felt that the implications of such a change needed investigating (such as the increased likelihood of deadlocked votes, and therefore the need for a casting vote). Additionally, the Greens believed that broader issues of reforming the Western Australian Constitution should be addressed at the same time. Following the Supreme Court decision, Labor was unwilling One Vote, One Value 76 to have the President exercise a deliberative vote, as it believed that such an action would inevitably be subject to a legal challenge, and that the Supreme Court may look upon the Government unfavourably given the previous history of the legislation.

7.7 Subsequent Developments

In June 2004, Alan Cadby, a Liberal Member of the Legislative Council, resigned from his party as a result of a preselection process that placed him in an unwinnable position for the upcoming state election (Videnieks and Taylor, 2004:4). This breathed new life into the electoral reform debate, with the possibility that Labor could obtain Mr Cadby’s vote, thereby achieving an absolute majority for its legislation, with the Greens’ support. Alternatively, it was suggested that Mr Cadby could be offered the President’s position, giving Labor an absolute majority, again with the Greens’ support. The Greens stated that they would support the legislation if it were reintroduced (Sharp, 2004). However, the Premier ruled out this option in response to media questioning, and apparently without consulting his party, as explained by the Greens:

That’s why we were really dirty on Gallop when Cadby resigned, there it was, on a plate…and it would have gone through…we’ve seen Gallop do this before, he gets put on the spot, he doesn’t consult because at that stage we’d been talking for about a week with Cowdell, and McGinty through Cowdell, and we had been relayed Cadby’s position and there it was…the Labor Party was devastated.

We were at that stage, or fairly soon afterwards, we were invited to meet with the President…the President was hopeful that the Government could move again before the election…that was subsequently quashed by Gallop.

There remains an opportunity for the Labor Government, if it is returned at the upcoming state election, to have its electoral reforms passed prior to the changeover of Council members, and a possible return to conservative control of the Council, on 22 May 2005. The temptation for Labor will be strong, as, if voting equality is introduced, it will be unlikely that a Liberal or Liberal/National Coalition Government will attempt to revert back to a system of malapportionment. As noted by one observer: One Vote, One Value 77

It is interesting that they wouldn’t allow him [the Liberal Deputy Leader] to proceed with this, as is my understanding, with promising any repeal, that once it was swept away, it would be the same situation that the Liberal Party has accepted in every other state of the Commonwealth and at the national level, that it is a fair system of one vote, one value. Even the WA Liberal Party didn’t promise to try and turn back the clock once it was set.

7.8 Summary

This chapter has provided insights into the political strategies and behind-the-scenes negotiations that commonly occur when attempting to pass or block contentious legislation. This chapter has highlighted that political theory and principle are often secondary considerations to the political imperative of maintaining a party’s status and position in Parliament. A major problem in relation to instigating change to Western Australia’s electoral system is the conflict of interest that occurs when decisions are made by people who are going to be directly impacted by those decisions. The electoral reform debate also highlights the dichotomy of a bicameral system that uses proportional and non- proportional systems, as identified by Farrell (2001), and discussed in Chapter 3. In this case, the non-proportional Legislative Assembly has provided a strong, stable government with a clear legislative agenda. However, the Government has been unable in this instance to pass legislation through the proportionally-based Legislative Council, which is more accurately representative of the peoples’ wishes.

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CHAPTER 8

Concluding Discussion

The aim of this thesis has been to provide a greater understanding of the Western Australian electoral system and the political forces at play in the process of passing legislation, through an analysis of the recent attempts by the Gallop Labor Government to incorporate the principle of one vote, one value into electoral law. Quantitative and qualitative methods were applied to gather data, with the results providing insight into the strategies employed during the debates. This chapter discusses findings of the research, considers possible future scenarios for electoral reform, addresses the strengths and limitations of the study, and concludes with suggestions for future research directions.

8.1 Summary of Findings

The historical data reviewed in this study demonstrates that successive electoral reforms over the past century have led to a reduction in the levels of malapportionment in the Western Australian electoral system. However, existing electoral laws prevent further declines of any significance, although minor reductions can be anticipated through population growth along the western coastal strip of the South West Region. This population growth has led to suggestions that areas such as the Mandurah and Dawesville districts should be included in a broadened Perth metropolitan region. It is unlikely that there will be any significant population shifts in the Mining and Pastoral, and Agricultural Regions in the short to medium term.

The analysis of data generated from the interviews of Members of Parliament involved in the debate provided insight into the political strategies of the parties. It is evident that Labor entered into an agreement with the Greens on a model of reform that both parties would support. Labor then drafted its legislation in a manner that incorporated the Greens’ One Vote, One Value 79 requirement for a level of vote weighting for sparsely populated areas, and allowed for the Greens to move amendments to increase Council membership from 34 to 36.

The incorporation of the Greens’ requirement for vote weighting for remote areas into the Labor Government’s original Amendment Bill is an important aspect of this legislative process. While this provision would clearly benefit the Labor Party, the alternative was for the Greens to move an amendment to this effect in Parliament, requiring Labor to vote in support. This action would have received far greater public derision and cynicism than otherwise occurred, as Labor would be perceived to be acting out of self-interest. Conversely, the Government did not incorporate increased Council membership into its original Bills, which would have been a far simpler legislative process than actually occurred. By forcing the Greens to make the necessary amendments to the Amendment Bill during the parliamentary process, the Labor Government deflected the odium from a cynical public for increasing the costs of Parliament, from themselves to the Greens.

The findings also reveal potential threats to the existing representative nature and effectiveness of the Western Australian Legislative Council, due to the suggestion of the reintroduction of staggered terms, and the ability for the Government of the day to use financial means to restrict the operations of the Council. As previously discussed, an electoral system based on proportional representation should accurately reflect voting support, with all significant interests represented (Birch, 1966:71; Newman, 1989:12). There is also a direct correlation between the number of members elected per electorate and the prospect of true proportionality, with a reduction in members relating to a reduction in proportionality (Lakeman and Lambert, 1955:115).

Data suggests there is a willingness for the two major parties, Labor and Liberal, to seriously consider the reintroduction of staggered terms. As discussed, this would halve the number of Council seats up for election at each general election, approximately doubling the required quota. This would have considerable impact on the ability of minor parties and independents to be adequately represented in Parliament, an important outcome for proportional representation in the Legislative Council. The suggestion that the Council’s electoral system could be reformed in a way that effectively eliminates minor party representation raises fundamental questions concerning the representative nature of the Parliament. This would have very serious impacts on the role of the Council, which One Vote, One Value 80 has evolved into a genuine ‘house of review’ since the introduction of proportional representation in the mid 1980s, and increase the possibility of one party gaining control of both Houses of Parliament. Such a change would also have implications for the coalition between the Liberal and National parties, and may influence the strategies the Greens adopt in their current ‘balance of power’ position.

The Council’s ability to perform as a house of review is determined to some extent by its capacity to inquire and investigate through a strong committee system. This study found that the current Labor Government and previous Richard Court Coalition Government have been effective in restricting this capacity through a reduction in the Council’s budget. While strong accountability and responsible management requires the Government to have a role in placing limits on financial expenditure, it is worthwhile questioning whether a more appropriate and independent method of determining the costs and budgets for both Houses of Parliament should be considered. At the same time, it is important that the Parliament expends money effectively. In this instance, the Standing Committee on Legislation’s inquiry into the Government’s electoral reform Bills was of little apparent benefit, with members of the Committee having pre-established party objectives. The conduct of the inquiry appears to have fulfilled the purpose of gathering arguments to support individual members’ viewpoints, rather than providing genuine insight into electoral reform issues. There is a risk that such inquiries diminish the role of public consultation, and continue to increase public cynicism as to the value of engaging in consultative processes.

8.2 Future Scenarios

The upcoming state election, due in early 2005, provides a number of possible scenarios for future electoral reform. In terms of progressing their reforms, the ideal situation for Labor would be a return to Government with a Legislative Council comprising an absolute majority of non-conservative Members. However, based on interview data, there appears to be a strong possibility that the Council will return to conservative control, or at least to a 17-17 balance of conservative and progressive interests, when the terms of existing Members expire on 21 May 2005. If either of these situations occur, a re-elected Labor Government will be keen to take advantage of the fixed terms of existing Council One Vote, One Value 81 members, by quickly re-introducing electoral reform legislation in the hope that it can be passed prior to the May changeover.

Under this scenario, Labor’s proposed reforms could be achieved, with Greens support, in either of two ways. First, by passing legislation to provide the President with a deliberative vote, Labor and the Greens would be able to achieve the required absolute majority. Second, if Labor was able to win the support of the former Liberal, now Independent Member Alan Cadby, this would give a Labor/Greens/Cadby alliance an absolute majority on the floor of the House, with either John Cowdell or Alan Cadby as President. This would negate the need for the President to have a deliberative vote.

If a re-elected Labor Government is unable to pass reforms prior to the May changeover of Council members, it may remain willing to consider Liberal Party suggestions of reforming the Council in a way that severely reduces the ability of minor parties and independents to be elected. In addition, the Liberal Party may look favourably on reforms for the Legislative Assembly that favours itself at the expense of the National Party. The possibility of a Labor-Liberal agreement on electoral reform may influence the Greens’ approach to negotiations with the Government prior to the May changeover, and may also influence the National Party to moderate its existing opposition to one vote, one value, provided it can maintain some level of vote-weighting for at least one of the Houses.

If a Liberal/National Coalition were elected to govern, it would appear unlikely that electoral reform based on voting equality would eventuate. However, it is possible that the Coalition may be willing to modify the existing Assembly system, possibly by moving some of the urbanised areas of the South West Region into a broader Metropolitan zone. Reform of the Council to remove minor party representation, as outlined above, would also remain a real possibility.

8.3 Strengths and Limitations of the Study

The collection of quantitative data allowed for a comparative analysis of levels of vote weighting across Australian jurisdictions. This provided a sound context from which the Western Australian debates could be considered. A further strength of the study was the collection of qualitative data from key participants in the debates. This data provided One Vote, One Value 82 insights into the private and sensitive negotiations that were conducted before, during and after the passage of electoral reform legislation through the Parliament. It was possible to cross-check the authenticity of this data through multiple interviews and investigations. Without data such as this, the study would have been reliant on analysis of the debates through publicly available data, such as parliamentary Hansard accounts, Court decisions and media commentary. While such sources of data are highly valuable, the personal interviews provided the strategic context, which was of a politically sensitive nature, for the public actions of the key participants in the debates.

There were some limitations to the study, primarily related to accessing relevant participants for interviews. I travelled to Western Australia to conduct interviews during a parliamentary sitting week, so that country Members could conveniently be accessed while they were in Perth. While this was largely beneficial, some Members cancelled appointments for interviews at a late stage due to new commitments. While this is an understandable aspect of parliamentary sittings, not all of the appointments could be rescheduled in the time available. The qualitative data would have been strengthened by conducting further interviews, particularly with Members from the conservative parties, but limits on time and budget prevented this. These limitations were largely overcome through holding discussions with Members’ staff, which was not a component of the original design of the study.

8.4 Future Research

The findings from this study raise a number of questions concerning the effectiveness of political representation, which could be addressed through further research. It was raised in the debates and interviews that non-metropolitan regions require additional representation so that the more populous Perth metropolitan area does not overwhelm the interests of country areas. However, as Dr Christine Sharp pointed out in her second reading speech for the Amendment Bill, ‘one sees that the decline in the country has taken place despite the electoral system being extremely weighted in its favour’ (Sharp, 2001:3957). Research employing qualitative and quantitative methodology to measure the effectiveness of representation would be useful to investigate whether non-metropolitan residents actually benefit from malapportionment. The research could include assessment One Vote, One Value 83 of factors such as political parties’ pre-selection processes, and the parties’ enforcement of block voting in Parliament.

8.5 Conclusion

It can be seen from this study that the notion of reforming electoral law to provide a fairer and more equitable means of parliamentary representation, is largely an altruistic one. Reforms tend to occur only when a political party has a sufficient parliamentary majority to make changes from which it can benefit, or at worst, has no negative impacts on its representation. Alternatively, parties may join forces to limit the ability for other parties to achieve or maintain representation. It would appear that of the parties currently represented in the Western Australian Parliament, the National Party has acted the most strongly from a position of self-interest. However, it can also be argued that the Nationals are simply representing the interests of their constituents. Conversely, the Greens adopted a selfless position on the reforms as, if the reforms had become law, they would have been detrimental to the Greens’ future chances of election. As there is no possibility of electoral reform before the next election, the Greens’ ability to influence changes to electoral laws may now be lost forever.

Western Australia has changed dramatically since the time when the state’s electoral laws were first formulated in the late nineteenth century. The public consultation carried out by the Commission on Government in the mid 1990s was an attempt to assess whether the state’s laws remained relevant for modern times, and from this, a package of reforms was recommended. Although the Gallop Government’s proposed electoral reforms were not entirely in line with the Commission’s recommendations, they represented a significant step towards adapting the system to reflect public views. It remains to be seen whether the wishes of the public, expressed through political activism, including media debate and the ballot box, will provide sufficient direction for the public’s representatives in Parliament to act accordingly.

One Vote, One Value 84

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Queensland Parliament (2004) “Key Dates in Electoral and Parliamentary History of Queensland”, Queensland Parliament web site. Retrieved 24 September 2004, from http://www.parliament.qld.gov.au/Parlib/Parl_Information/Elections/state.htm

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Robinson, Kirsten (2003) “One Vote, One Value: The WA Experience”, in G. Orr, G. Williams, and B. Mercurio (eds), Realising Democracy: Electoral Law in Australia. Sydney: Federation Press.

Rose, Richard (1983) “Elections and electoral systems: choices and alternatives”, in Bogdanor and Butler (eds), Democracy and Elections: Electoral systems and their political consequences. Cambridge: Cambridge University Press.

Rossman, Gretchen B. and Rallis, Sharon F. (1998) Learning in the Field: An introduction to qualitative research. Thousand Oaks: Sage Publications.

Ruse, Ben (2001a) “Labor moves to axe bush MPs”, in The West Australian, Perth, 30 March 2001, p. 6.

Ruse, Ben (2001b) “Doubt over electoral shake-up”, in The West Australian, Perth, 4 August 2001, p. 8.

Ruse, Ben (2001c) “Greens threat to vote reform”, in The West Australian, Perth, 19 September 2001, p. 8.

Sainsbury, Diane (2001) “Rights without seats: The puzzle of women’s legislative recruitment”, in Sawer (ed.), Elections: Full, Free & Fair. Sydney: The Federation Press.

Sawer, Marian (2001a) “Representing Trees, Acres, Voters and Non-Voters: Concepts of Parliamentary Representation in Australia”, in Sawer and Zappala (eds), Speaking for the People: Representation in Australian Politics. Melbourne: Melbourne University Press.

Sawer, Marian (2001b) “Pacemakers for the world?”, in Sawer (ed.), Elections: Full, Free & Fair. Sydney: The Federation Press.

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Appendix A Legislation Relevant sections of the Australian Constitution and Western Australian and Australian legislation referred to in the text (Source: Austlii, 2004).

1. The Constitution (Australia) – Sections 7, 23, 24, 29, 30, 31, 122, 128 2. Constitution Act 1899 (Western Australia) – Section 73 3. Constitution Acts Amendment Act 1899 (Western Australia) – Sections 5, 6, 14, 19 4. Electoral Distribution Act 1947 (Western Australia) – Sections 6, 7, 9, 13 5. Commonwealth Electoral Act 1918 (Australia) – Sections 40, 59, 63A, 66

1. The Constitution (Australia)

Section 7 – The Senate The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State1, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. The Senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General. Section 23 – Voting in the Senate Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative. Section 24 – Constitution of House of Representatives The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.

1 Increased to 12 senators for each state by the Representation Act 1983. One Vote, One Value 95

The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner: (i.) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators: (ii.) The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State. Section 29 – Electoral divisions Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws2 for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate. Section 30 – Qualification of electors Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once. Section 31 – Application of State laws Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives. Section 122 – Government of territories The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. Section 128 – Mode of altering the Constitution This Constitution shall not be altered except in the following manner:-

2 State laws ceased to have effect upon the enactment of the Commonwealth Electoral Act 1902. One Vote, One Value 96

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory3 to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first- mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment to which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approved the proposed law, it shall be presented to the Governor-General for the Queen's assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, "Territory" means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

2. Constitution Act 1899 (Western Australia)

Section 73 – Legislature as constituted by this Act empowered to alter any of its provisions (1) Subject to the succeeding provisions of this section, the Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. Provided always, that it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly

3 The provision for electors in the territories to vote in constitutional referendums was added in 1977 (No.84, 1977) One Vote, One Value 97

respectively. Provided also, that every Bill which shall be so passed for the election of a Legislative Council at any date earlier than by Part III provided, and every Bill which shall interfere with the operation of sections 69, 70, 71, or 72, or of Schedules B, C, or D, or of this section, shall be reserved by the Governor for the signification of Her Majesty’s pleasure thereon. (2) A Bill that — (a) expressly or impliedly provides for the abolition of or alteration in the office of Governor; or (b) expressly or impliedly provides for the abolition of the Legislative Council or of the Legislative Assembly; or (c) expressly or impliedly provides that the Legislative Council or the Legislative Assembly shall be composed of members other than members chosen directly by the people; or (d) expressly or impliedly provides for a reduction in the numbers of the members of the Legislative Council or of the Legislative Assembly; or (e) expressly or impliedly in any way affects any of the following sections of this Act, namely — sections 2, 3, 4, 50, 51 and 73, shall not be presented for assent by or in the name of the Queen unless — (f) the second and third readings of the Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly, respectively; and (g) the Bill has also prior to such presentation been approved by the electors in accordance with this section, and a Bill assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act. (3) On a day fixed by the Governor by Order in Council, being a day not sooner than 2 months, and not later than 6 months, after the passage through the Legislative Council and the Legislative Assembly of a Bill of a kind referred to in subsection (2), the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of the Electoral Act 1907. (4) When the Bill is submitted to the electors the vote shall be taken in such manner as is fixed by law. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for assent by or in the name of the Queen. (6) Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in subsection (2) is presented for assent by or in the name of the Queen. One Vote, One Value 98

3. Constitution Acts Amendment Act 1899 (Western Australia) Section 5 – Constitution of Legislative Council The Legislative Council shall consist of 34 elected members who shall be returned and sit for electoral regions as defined under section 6. Section 6 – Electoral regions and representation (1) The State shall be divided into 6 electoral regions under the Electoral Distribution Act 1947. (2) The electoral regions known, respectively, as the North Metropolitan Region and the South West Region shall each return 7 members to serve in the Legislative Council. (3) The electoral regions known, respectively, as the South Metropolitan Region, the East Metropolitan Region, the Agricultural Region and the Mining and Pastoral Region shall each return 5 members to serve in the Legislative Council. Section 14 – Quorum — division, casting vote The presence of at least one-third of the members of the Legislative Council, exclusive of the President, shall be necessary to constitute a quorum for the despatch of business; and all questions which shall arise in the Legislative Council shall be decided by a majority of votes of the members present, other than the President, and when the votes are equal the President shall have the casting vote: Provided always, that if the whole number of members constituting the Legislative Council shall not be exactly divisible by 3, the quorum of the Legislative Council shall consist of such whole number as is next greater than one-third of the members of the Legislative Council. Section 19 – Electoral Districts The State shall be divided into — (a) 55 Electoral Districts until the dissolution of the Legislative Assembly or the expiry thereof by effluxion of time first occurring after 31 December 1982; and (b) 57 Electoral Districts thereafter, under the provisions of the Electoral Distribution Act 1947, each returning one member to serve in the Legislative Assembly.

4. Electoral Distribution Act 1947 (Western Australia)

Section 6 – Basis for division of the State into districts (1) The Commissioners shall — (a) divide the Metropolitan Area into 34 districts; and

(b) divide the area comprising the remainder of the State into 23 districts. One Vote, One Value 99

(2) The Commissioners shall make the division of an area mentioned in subsection (1) (a) or (b) into districts in accordance with the principle that the number of enrolled electors comprised in any district in the area must not be more than 15% greater, or more than 15% less, than the quotient obtained by dividing the total number of enrolled electors in the area by the number of districts into which the area is to be divided. Section 7 – Matters to be considered in dividing the State into regions and districts In making the division of the State into regions and districts the Commissioners shall give due consideration to — (a) community of interest; (b) means of communication and distance from the capital; (c) physical features; (d) existing boundaries of regions and districts; (e) existing local government boundaries; (f) the trend of demographic changes, and where the State is divided for the first time — (g) boundaries of the electoral provinces and electoral districts into which the State was divided prior to the division. Section 9 – Basis for division of the State into regions The Commissioners shall divide the State into 6 regions so that — (a) 3 regions, to be known, respectively, as the North Metropolitan Region, the South Metropolitan Region and the East Metropolitan Region, each consist of complete and contiguous districts that together form the Metropolitan Area; (b) one region, to be known as the Mining and Pastoral Region, consists of complete and contiguous districts that are remote from the capital and where the land use is primarily for mining and pastoral purposes; (c) one region, known as the Agricultural Region, consists of complete and contiguous districts that together form an area that is generally south, or south and west, of and adjacent to the Mining and Pastoral Region; and (d) the remaining region, to be known as the South West Region, consists of complete and contiguous districts. Section 13 – Amendments to be passed by absolute majorities of members of Council and Assembly It shall not be lawful to present to the Governor for Her Majesty's assent any Bill to amend this Act, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively. One Vote, One Value 100

5. Commonwealth Electoral Act 1918 (Australia)

Section 40 – Representation of the Territories in the Senate (1) Subject to subsection (2), the Australian Capital Territory and the Northern Territory shall each be represented in the Senate by 2 senators for the Territory directly chosen by the people of the Territory voting as one electorate. (2) Where the number of members of the House of Representatives to be chosen in the Australian Capital Territory or the Northern Territory at a general election is 6 or more, that Territory shall, on and from the day of the general election, be represented in the Senate by one senator for every 2 members of the House of Representatives to be chosen in that Territory. (3) Where the number of members of the House of Representatives to be chosen in the Australian Capital Territory or the Northern Territory at a general election is an odd number, subsection (2) applies as if the number were reduced by one. (4) Subject to subsection (5), a Territory (other than the Australian Capital Territory and the Northern Territory) is not entitled to separate representation in the Senate. (5) Where 2 or more members of the House of Representatives are to be chosen in a Territory (other than the Australian Capital Territory or the Northern Territory) at a general election, that Territory shall, on and from the day of the general election, be represented in the Senate by one senator for every 2 members of the House of Representatives to be chosen in that Territory. (6) Where the number of members of the House of Representatives to be chosen in a Territory (other than the Australian Capital Territory or the Northern Territory) at a general election is an odd number, subsection (5) applies as if the number were reduced by one. (7) Until the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island becomes entitled to separate representation in the Senate under subsection (5), this section has effect as if the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island, as the case may be, were a part of the Northern Territory.

Section 59 - Times at which redistributions are to commence (1) A redistribution of a State or the Australian Capital Territory into Divisions shall commence whenever the Electoral Commission so directs by notice published in the Gazette. (2) Subject to subsections (3) and (5), a direction under subsection (1) shall be made in relation to a State: (a) forthwith after the making of a determination under subsection 48(1) that results in an alteration of the number of members of the House of Representatives to be chosen in the State at a general election; (b) whenever it appears to the Electoral Commission, from statements published under subsection 58(1), that more than one-third of the Divisions in the State are, and have, for a period of more than 2 months, been, malapportioned Divisions; and One Vote, One Value 101

(c) if a period of 7 years after the day on which the State was last distributed into Electoral Divisions by a determination under subsection 73(1) expires, within 30 days after the expiration of the period of 7 years; and not otherwise. (3) direction under subsection (1) shall not be made in relation to a State by virtue of paragraph (2)(b) or (c): (a) if the State is undergoing redistribution into Divisions; or (b) within one year before the date of expiry of a House of Representatives by effluxion of time. (4) If a period of 7 years after the day on which a State was last distributed into Electoral Divisions by a determination under subsection 73(1) expires within one year before the date of expiry of a House of Representatives by effluxion of time, subsection (2) of this section has effect, in relation to the expiration of that first- mentioned period, as if the reference in paragraph (c) to within 30 days after the expiration of the period of 7 years were a reference to within 30 days after the day of the first meeting of the next following House of Representatives. (5) Where: (a) a direction under subsection (1) is, but for this subsection, required by subsection (2) (including that subsection as affected by subsection (4)) to be made in relation to a State at any time within 13 months after the day of the first meeting of a House of Representatives; (b) a determination under subsection 48(1) has not been made after the day of that first meeting; and (c) the Electoral Commission is of the opinion that the next following determination under subsection 48(1) will or may result in an alteration of the number of members of the House of Representatives to be chosen in the State at a general election; the Electoral Commission may, by notice published in the Gazette , direct that subsection (2) does not apply in relation to the State until the making of the determination referred to in paragraph (c). (6) Where: (a) a State is undergoing redistribution into Divisions; and (b) a direction under subsection (1) is made in relation to the State by virtue of paragraph (2)(a); the redistribution of the State into Divisions, being the redistribution referred to in paragraph (a) of this subsection, is, by force of this subsection, terminated. (7) Subject to subsections (8) and (9A), a direction under subsection (1) shall be made in relation to the Australian Capital Territory: (aa) forthwith after the making of a determination under subsection 48(1) that results in an alteration of the number of members of the House of Representatives to be chosen in the Territory at a general election; and (a) whenever it appears to the Electoral Commission, from statements published under subsection 58(1), that a Division in the Territory is, and One Vote, One Value 102

has, for a period of more than 2 months, been, a malapportioned Division; and (b) if a period of 7 years after the day on which the Territory was last distributed into Electoral Divisions by a determination under subsection 73(1) expires, within 30 days after the expiration of the period of 7 years; and not otherwise. (8) A direction under subsection (1) shall not be made in relation to the Australian Capital Territory by virtue of paragraph (7)(a) or (b): (a) if the Territory is undergoing redistribution into Divisions; or (b) within one year before the date of expiry of a House of Representatives by effluxion of time.

(9) If a period of 7 years after the day on which the Australian Capital Territory was last distributed into Electoral Divisions by a determination under subsection 73(1) expires within one year before the date of expiry of a House of Representatives by effluxion of time, subsection (7) of this section has effect, in relation to the expiration of that first-mentioned period, as if the reference in paragraph (b) to within 30 days after the expiration of the period of 7 years were a reference to within 30 days after the day of the first meeting of the next following House of Representatives. (9A) Where: (a) a direction under subsection (1) is, but for this subsection, required by subsection (7) (including that subsection as affected by subsection (9)) to be made in relation to the Australian Capital Territory at any time within 13 months after the day of the first meeting of a House of Representatives; and (b) a determination under subsection 48(1) has not been made after the day of that first meeting; and (c) the Electoral Commission is of the opinion that the next following determination under subsection 48(1) will or may result in an alteration of the number of members of the House of Representatives to be chosen in the Territory at a general election; the Electoral Commission may, by notice published in the Gazette , direct that subsection (7) does not apply in relation to the Territory until the making of the determination referred to in paragraph (c). (9B) Where: (a) the Australian Capital Territory is undergoing redistribution into Divisions; and (b) a direction under subsection (1) is made in relation to the Territory by virtue of paragraph (7)(aa); the redistribution of the Territory into Divisions, being the redistribution referred to in paragraph (a), is, by force of this subsection, terminated. (10) A reference in this section to a malapportioned Division is a reference to a Division in a State or the Australian Capital Territory in which the number of electors enrolled differs from the average divisional enrolment of the State or Territory to a greater extent than one-tenth more or one-tenth less. One Vote, One Value 103

(11) For the purposes of this section, a State or the Australian Capital Territory is undergoing redistribution into Divisions if: (a) a redistribution of the State or Territory into Divisions has commenced by virtue of a direction under subsection (1); (b) the redistribution of the State or Territory has not been terminated under subsection (6) or (9B), as the case requires; and (c) the State or Territory has not been distributed into Electoral Divisions as a result of the redistribution so commenced.

Section 63A – Projection time for equality of enrolments

(1) This section defines the projection time for the purpose of applying sections 66 and 73 in relation to a redistribution (the current redistribution ) of a State or Territory.

(2) The projection time is the end of the period of 3 years and 6 months after the starting time for the projection, unless the Electoral Commission determines an earlier time under subsection (3) of this section.

(3) If the Electoral Commission is of the opinion that a further redistribution of the State or Territory will or may be required, as a result of a determination under section 48, sooner than 7 years after the starting time for the projection, the Electoral Commission may determine that the projection time will be a time that is half-way between: (a) the starting time for the projection; and (b) the time when, in the opinion of the Electoral Commission, the further redistribution will or may be required.

(4) A determination under subsection (3) must be published in the Gazette not later than the time when a notice is published in the Gazette under subsection 64(1) in relation to the current redistribution.

(5) In this section: "starting time for the projection" means the time of making the determination referred to in subsection 73 (4).

Section 66 – Redistribution Committee to make proposed redistribution

(1) A Redistribution Committee for a State or the Australian Capital Territory shall, in accordance with subsections (2), (3) and (4), make a proposed redistribution of the State or Territory. (2) The proposed redistribution shall propose the distribution of the State or Territory into Electoral Divisions equal in number to the number of members of the House of Representatives to be chosen in the State or Territory at a general election. (3) In making the proposed redistribution, the Redistribution Committee: One Vote, One Value 104

(a) shall, as far as practicable, endeavour to ensure that, if the State or Territory were redistributed in accordance with the proposed redistribution, the number of electors enrolled in each Electoral Division in the State or Territory would not, at the projection time determined under section 63A, be less than 96.5% or more than 103.5% of the average divisional enrolment of that State or Territory at that time; and (b) subject to paragraph (a), shall give due consideration, in relation to each proposed Electoral Division, to: (i) community of interests within the proposed Electoral Division, including economic, social and regional interests; (ii) means of communication and travel within the proposed Electoral Division; (iv) the physical features and area of the proposed Electoral Division; and (v) the boundaries of existing Divisions in the State or Territory; and subject thereto the quota of electors for the State or Territory shall be the basis for the proposed redistribution, and the Redistribution Committee may adopt a margin of allowance, to be used whenever necessary, but in no case shall the quota be departed from to a greater extent than one-tenth more or one-tenth less. (3A) When applying subsection (3), the Redistribution Committee must treat the matter in subparagraph (3)(b)(v) as subordinate to the matters in subparagraphs (3)(b)(i), (ii) and (iv).

(4) In a proposed redistribution of the Australian Capital Territory, the whole of the Jervis Bay Territory shall be included in one proposed Electoral Division.

One Vote, One Value 105

Participant Information Form Appendix B

Representation in Electoral Systems : A Study of the ‘One-Vote, One-Value’ Debate in Western Australia

Participation Information Sheet

The purpose of this study is to examine the forces at play in the legislative and constitutional debates related to the Electoral Distribution Act 1947, the Electoral Distribution Repeal Bill 2001 and the Electoral Amendment Bill 2001. The research seeks to understand the positions and actions of the various political parties in relation to the implications for electoral representation in Western Australia in the future. The results of this study will be published as an Honours thesis late in 2004.

I wish to interview key political representatives who participated in the reform debates, and others who have a sound knowledge of the issues related to this matter. I would like to interview you for approximately an hour on this issue to understand *the position and actions of your political party or *your role or thoughts on these debates. Following the interview, I may need to follow-up by phone or email to seek further comments or information, or verification of information previously provided. With your permission, I would like to tape the interview.

Your involvement in this study is entirely voluntary. Your non-participation or a decision to withdraw from the study may be done freely, and will not affect your rights or the responsibilities of the researcher in any respect. The material gathered from this process will only be used for the purposes of this study, and will only be available to my supervisor, Associate Professor David Charnock and myself. The data will be stored securely at the researcher’s address during this study, and then at the Curtin University of Technology. The interview participants will not be individually identifiable in any published material. I will contact you if I later wish to publish anything on the topic other than the Honours thesis.

The debate surrounding electoral reform on the ‘one-vote, one-value’ issue has significant historical importance in Western Australia. It is anticipated that the results of this study will be beneficial to the participants and general public, by providing a concise and comprehensive history of this issue. It will also be a useful research source for the study of the Western Australian electoral system.

Should you require further details about the study, you may contact me on mobile telephone 0414 493 749, or email [email protected]. My supervisor’s contact details are: Associate Professor David Charnock, of Curtin University, on telephone 9266 7749, or email [email protected]. The Human Research Ethics Committee at Curtin University of Technology has approved this study. If you wish to make a complaint on ethical grounds you can contact Ms S. Darley, Secretary, Human Research Ethics Committee, Curtin University, GPO Box U1987, Perth WA 6845.

I am planning to be in Perth in late August to conduct interviews. In anticipation of your agreement to participate in this study, I will contact your office in the near future to organise a convenient interview time. Your input will be very much appreciated. * One of these two phrases will be used, depending on the participant’s position.