WA Labor secures third term in government but loses Legislative Council.
It has been two weeks since the Western Australian state election, and the composition of the new state-wide Legislative Council has not been finalised.
After Labor’s landslide re-election in 2021, Western Australia became the third state to adopt a single-electorate Legislative Council, abolishing the previous regional system with Section 5 of the Constitution Acts Amendment Act 1899 (WA).
That system divided Western Australia into 6 electoral ‘regions’ which each elected 6 members of the Legislative Council. The state-wide system has increased the number of Legislative Council members from 36 to 37, an odd number which makes it easier to establish a clear majority.
The purpose of the bicameral system has always been to have different houses representing different groups of people.
The British system is the earliest version of this. The ‘House of Commons’ represented the interests of electorates of common people, although that historically meant ‘white landowners with a certain level of wealth,’ while the House of Lords represented the interests of the nobility.
That system was modified in colonial Australia, with the upper house being made up of the wealthiest and most powerful individuals in colonies where the upper house was appointed.
In fact, the Legislative ‘Council’ is likely a reference to the ‘Privy Council,’ the monarch’s House of Lords advisors.
Australia’s modern system, except for the territories and Tasmania, has a lower house representing specific communities, and an upper house representing broader groups. In the Senate, this is each State, and in the states the upper house represents ‘regions.’
In section 38 of the Constitution Act 1899 (WA), the term used is ‘electoral divisions,’ which is a plural, rather than a singular state-wide electorate.
It’s quite common for plural and singular numbers to be interchangeable. Section 23(b) applies that rule to all Commonwealth legislation, although not to the Australian Constitution.
Commenting on the New South Wales equivalent, the Privy Council said in Blue Metal Industries Ltd v Dilley (1969) that it helps Parliament “avoid cumbersome and over-elaborate wording.” This is only a presumption, becomes sometimes a singular word is only intended to be singular.
The ongoing High Court case of Laming v Electoral Commissioner demonstrates this. It is an unlawful to create unauthorised campaign material “that is communicated to a person.” The material was a Facebook ad seen by 6 people.
The Federal Court trial judge applied section 23(b), making it 1 offence. On appeal, the Full Court didn’t apply it, so there were 6 separate offences.
It’s harder to argue that a plural word should be read as a singular, and section 38 of the WA Constitution uses the plural ‘electoral divisions.’
However, the 19th century saw a rapid expansion of voting rights, with South Australian women able to vote since 1894, so the Constitution Act 1899 (WA) makes it clear that section 38 is only the ‘default’ system and it can be amended.
The region-based system was adopted from the United States. It was based on a compromise where the more populous states would get more representatives in the lower house, but all states received an equal share of upper house members, protecting less populous states.
In Western Australia, most Legislative Assembly members are located in and around Perth, so the regional system was introduced to advance the interests of each regions.
The new Western Australian system is more party-centric, especially with the adoption of Optional Preferential Voting, which means that voters only have to vote for one party above the line, or no more than 20 candidates below the line.
Proportional representation tends to favour minor parties more, with Labor’s 22-14 majority expected to drop to 15 or 16 seats, down 8 or 9.
The Greens retained only a single seat in 2021, with 6.38% of the state-wide vote, as it was contesting with Labor in urban regions. Now, with nearly 11% of the vote, it will likely win 4.
In contrast, in 2021 the Nationals had 2.8% and 3 seats because of the rural vote. With 5.5% of the vote, that has dropped to 2 seats in 2025.
A party-centric OPV system could potentially conflict with Babet v Commonwealth (2025), where the High Court appeared to accept the argument that “there is no common law liberty of communication to have your party affiliation on a ballot paper,” so legislation would have to confer that right.
Fortunately for Western Australians, the new upper-house model depends on the right to have a party name on the ballot paper, so that would presumably override the common law position.
This would also apply in NSW and SA, and with Western Australia joining their ranks, the single-electorate upper house system has become the dominant Legislative Council model in Australia.
Tasmania is unlikely to change, given its Hare-Clark lower house, and if Queensland were to adopt an upper house, it would likely be region-based.
Victoria is under considerable pressure to abandon its regional system, leaving the Australian Senate as the only region-based upper house, even if its regions are called ‘States’ and ‘Territories.’
However, the Australian Senate cannot be changed. Section 7 of the Australian Constitution states that “the Senate shall be composed of senators for each State.”
Parliament and the High Court have agreed that Section 7, in conjunction with Section 122, can allow the ACT and NT can have 2 Senators each, although that took two cases.
But the term ‘each State’ makes it clear that, without a referendum, the Senate will retain the US-style region-based upper house.
Similarly, because of cases like Lange v ABC (1997), it is very clear that the term ‘directly elected’ in state and federal constitutions means that ‘below-the-line’ voting cannot be abolished.
Australia has broken away from both the US and Westminster systems by adopting preferential voting.
But at the same time it cannot fully embrace the European-style ‘party-list proportional representation’ model of voting for parties or groups alone.
The ‘directly elected’ requirement means that Australians must be able to vote for candidates, not for parties.
Above-the-line voting was brought in to fix informal voting rates, and like PL-PR, parties can choose the order of the candidates on the above-the-line ballot paper, but above-the-line has to remain ‘optional.’
As with many other things, this is part of Australia’s ‘hybrid’ democracy, but we make it work.