In both of the hypothetical examples of gerrymanders in the previous section, the electorates contained equal numbers of voters. All that was done to change the election result was to change the boundaries of equally sized electorates. A set of electoral boundaries that are drawn so that electorates contain unequal numbers of voters should not be described as a gerrymander, but as a malapportionment. When people complain about gerrymanders in Australia, they are usually really complaining about malapportionment.
The consequences of malapportionment can be just as significant as those of gerrymandering. The following example illustrates this point. It uses the same pattern of voting as in the examples given in the previous section, but this time across two electorates containing three voters and one electorate containing six voters.
The winning candidate in the larger electorate has to win twice as many votes as the winning candidates in the two smaller electorates. Another common way of expressing this is that each vote in the smaller electorates has been ‘weighted’ to count for as much as two votes in the larger electorate. By assigning different weights to votes, malapportionment violates the principle of voter equality generally expressed as ‘one vote one value’. The consequence in the case above is that Party A, with the same number of votes as Party B, wins two electorates to Party B’s one.
Malapportionment and Australian law
Deliberate malapportionment has been common in Australian electoral legislation. It has been used to favour small states and country areas and the parties that tend to draw their electoral support from these regions.
The Australian Constitution does not protect against malapportionment. In 1974 and again in 1988, voters rejected referendum proposals that would have written a requirement for equal electorates into the text of the Constitution.
In its decisions in the McKinlay and McGinty cases, the High Court held that the Australian Constitution does not require electorates to be drawn up on the basis of ‘one vote one value’. In 1975, Brian McKinlay argued unsuccessfully that Section 24 of the Constitution, stating that Members of the House of Representatives shall be ‘directly chosen by the people’, was violated by large inequalities in enrolment figures across different Victorian House of Representatives electorates. In 1996, Jim McGinty tried to have Western Australia’s state electoral system declared unconstitutional on similar grounds. McGinty hoped that the Court would view ‘one vote one value’ as a right implied by the Australian and Western Australian constitutions, following its decisions in ‘implied rights’ cases earlier in the 1990s. The Court rejected this argument.
Rather than preventing malapportionment, in several cases the Constitution produces it. Section 7 leads to malapportionment in Senate elections by requiring that each state have the same number of senators. This means that, (in round numbers) 360,000 Tasmanian voters elect the same number of senators as 4,600,000 voters in New South Wales. In 2010, candidates for the Senate from Tasmania needed just 48,820 votes to be elected, compared with the 593,218 votes needed by Senate candidates in New South Wales.
Similarly, section 24 of the Constitution guarantees all the original states at least five Members of the House of Representatives, regardless of whether their population size would otherwise justify this number. For this reason, the average number of eligible voters in Tasmanian House of Representative electorates in 2010 was around 72,000 voters, compared with an average of almost 95,000 across the rest of the country.
As well as this constitutionally protected malapportionment in favour of small states, for many decades from Federation, Commonwealth law allowed significant disparities in the numbers of voters in different electorates. The number of voters could vary up to 20 per cent either way from the average enrolment. This meant that some electorates could have two-thirds as many voters as other electorates. The Parliament also had to agree to redistributions being carried out and gaps of over ten years between redistributions were common. Population shifts during these periods, particularly from rural areas to the cities, reinforced the trend for some electorates to contain significantly more voters than others.
The main beneficiary of this inequality was the then Country Party (now National Party), since it drew its support almost exclusively from the less populous rural electorates. In the 1970s and 1980s, Labor federal governments initiated changes to the Commonwealth Electoral Act to ensure that House of Representatives electorates became more equal. As a result, the permissible variation in voter numbers for any electorate has been reduced from 20 percent to 10 percent more or less than the average enrolment. Redistribution committees are now also required to examine demographic trends and draw boundaries so that variations between electorates will tend to reduce over time.
Rather than Parliament determining when redistributions will take place, the Commonwealth Electoral Act 1918 now requires that redistributions be held for House of Representatives electorates in a state or territory at least every seven years. They must be performed more frequently if population changes within or between states and territories are large enough. More frequent redistributions and the reduction in allowed variations between electorates have reduced malapportionment at Commonwealth level.
Historically, malapportionment in lower house electoral systems has been much stronger at state than at Commonwealth level. Governments in all states except Tasmania have, at some time or other, passed legislation that divided state electorates into electoral zones. Queensland had various zonal systems from 1949 to 1991, New South Wales from 1928 to 1979, Victoria from 1903 to 1952 and again from 1965 to 1983, South Australia from 1936 to 1976 and Western Australia from 1922 to 2008.
These zonal systems separated country electorates from urban electorates. A number of systems also created different zones for different types of urban and country areas. In all cases, seats in the country zones have averaged fewer voters than those from urban zones. In Western Australia, the last state to end its zonal system, the electorates in the ‘Country Area’ averaged about half the number of voters in ‘Metropolitan Area’ electorates.
Governments that have used electoral zones have justified them in two ways. First, they have argued that parliamentarians cannot adequately service large country electorates. Second, they have argued that the economic importance of industries like farming and mining should be reflected in more seats for country areas. Not surprisingly, zonal systems were always introduced by parties that had significant support in country areas. Non-Labor parties introduced them in all states except Queensland. Moves to abolish zonal systems (rather than adjust or weaken them) have all been initiated by Labor governments, using the ‘one vote one value’ argument.