The Greens have been elected to the last position in Western Metropolitan Region with 130 votes less than the quota required.
The Australian Labor Party and former Legislative Council President, Bob Smith, more than 2,000 votes behind the Greens' Colleen Hartland primarily due to the optional preferential rules.
Many Liberal Party and DLP supporters who were opposed to the Greens candidature exhausted their preference allocation and in doing so allowed the Greens to be elected by default.
The VEC has also come under criticism for not providing clear instruction to encourage others to fill in all preferences. The instructions on the ballot legislative Council papers encouraged voters to only preference on to 5. The VEC should have been more proactive in encouraging voters to maximise their vote by fulling in all preferences. As a result of the VEC failure many voters were disenfranchised as a result.
As a result of the optional preferential rules that were introduced for the first time this year Labor has lost a third seat in Western Metropolitan.
The conduct of the count was further marred by the fact that the VEC failed to provide scrutineers copies of the below-the-line preference data. Copies of the preference data should have been published on line and in real time as the vote is counted.