There is plenty of colourful terminology to describe a politician who uses a political party to get elected and then deserts it. Labor describes it as “ratting”. In New Zealand it is known as “waka-jumping” – the perilous move of jumping from one waka (a Maori canoe) to another mid-stream. Wikipedia even provides a delightful list of “notable waka-jumpers” and “historic waka-jumpers”. Whether Lidia Thorpe’s leftwards leap from the Greens is notable or historic remains to be seen.
Party defections expose deep clefts in how we understand our political system. Do we elect the individual to serve a constituency or do we elect a representative of a party who is bound to support party policy? In blunt terms, do parties “own” a seat once they win it in an election?
The courts have recognised that it is the duty of a parliamentarian to serve the public, in accordance with their best judgment and conscience, and to act with a single-mindedness for the welfare of the community. Any contract that requires a politician to vote in parliament in a particular way is treated as void because it is against public policy. Parties, therefore, cannot legally control the parliamentary votes of their members, although in practice they can impose strong political and moral pressure.
But parties became recognised in the Constitution in 1977. Section 15 now requires casual Senate vacancies to be filled by a person from the same political party as the departing senator belonged to when elected. If, for example, Senator Thorpe were to resign her seat in the Senate, the Constitution requires that it be filled by a person chosen by the Australian Greens. This is because Senator Thorpe was publicly recognised as being an endorsed candidate of that party at the time of her election.
The 1977 constitutional amendment recognised that electors commonly vote based on the policies of a political party, rather than the merits of an individual candidate. This is particularly so when voting in the Senate above the line for a party’s candidates.
So, should we have “anti-defection laws”, as have been used in countries such as New Zealand, India and Israel? Such a law would automatically vacate the seat of any parliamentarian who left the party that had endorsed them for their election. In some countries, such as India, it also disqualifies a person who fails to vote as directed by their party whip, unless he or she has the party’s permission.
Party-defection laws tend to have two main rationales. The first is to maintain faith with voters. If voters elect a candidate upon the representation that the candidate will support the policies of a particular party, and that candidate then ceases to do so, the voters have been misled and the full effectiveness of their vote has been denied. This is particularly important where a candidate has been elected to a long term, such as six or eight years, leaving voters with no electoral recourse during that period.
The second rationale is to discourage corruption and support the stability of governments. In countries with small legislatures, particularly in developing countries, defection of one or two MPs from one party to another can result in a change of government. There is therefore a strong incentive to engage in bribery, whether it be in the form of money or power, such as appointment to offices. Governments can also change rapidly, as party defections swing each way, resulting in economic and social instability as little governing and planning can occur.
This is not a major concern in Australia, where the main objection to party defection is that it cheats voters of the type of representation they chose at the election. This concern is exacerbated if the remaining term in office is long and the parliamentarian decides to narrow his or her representation to the interests of a section of the community, rather than the whole electorate they were elected to represent, which in the case of a senator is an entire state or territory.
Such anti-defection laws have, however, proved to be constitutionally problematic. One concern is whether they breach the implied freedom of political communication by constraining how parliamentarians express themselves, both through speeches and voting in parliament.
The main problem, however, is the notorious section 44 of the Constitution, which sets out the grounds upon which members and senators are disqualified from parliament. It is most memorable for taking out a phalanx of MPs on dual-citizenship grounds a few years ago.
The wording of section 44 ranges from the quaint – “attainted of treason” – to the obscure. No one is really sure what is meant by being “entitled to the rights or privileges of a subject or a citizen of a foreign power” or having a “direct or indirect pecuniary interest in any agreement with the Public Service”. The section could, frankly, do with a good clean-up. Marie Kondo would find plenty to de-clutter. But this requires a referendum, which, as we all know, is a fraught task.
So here’s the rub: If we want to disqualify parliamentarians who get elected under the banner of one party and then jump ship to another party or become an independent, we would have to add it to the disqualifications in the Constitution by a referendum. Mere legislation would not be enough.
The framers of the Constitution were concerned that giving parliament the power to decide who gets disqualified from parliament would mean that one party could use it to disqualify its enemies.
Quite rightly, they thought that was a bad idea. Ultimately, we get what we vote for, and have to live with it, which is why we should be very careful with our votes.
Emerita Professor Anne Twomey is a constitutional law expert at the University of Sydney.
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