The question of whether defecting members of parliament should be able to hold on to their seat while joining another party or becoming an independent has garnered considerable attention in recent times.
Some say that a defecting member’s ability to hold on to the seat while jumping the party ship is borderline ‘voter fraud’. Others argue that controlling defection would contravene basic freedoms, such as those of association and conscience.
Regardless, there is no denying that there has been an unprecedented increase in the number of defections since 2014. One may rightly label the phenomenon as a ‘loophole’ that, although once existed for safeguarding fundamental freedoms, is now impairing our system of representative government. This calls into question the efficacy of Australia’s electoral laws.
Election and defection
Candidates representing a party rely on the party’s resources to get elected. Without the party label, the party money, the party workers and any party preference deals, it would be difficult if not near impossible for a candidate to get elected.
Once elected, members of parliament carry multiple responsibilities. These include responsibility to the voters, responsibility to the party and responsibility to one’s self. It is important that these responsibilities are balanced, and generally, they are.
However, there are circumstances when one of the responsibilities outweighs the others. When that happens, a member may defect to another party or become an independent.
Why is defection a problem?
One of the most undemocratic consequences of defection is a member’s ability to change the political dynamics of parliament. That is because a defecting member may hold the balance of power in parliament and be the deciding factor whether a crucial piece of legislation gets passed.
Defection can also distort the purpose of an election process and hamper the integrity of the representation of voters according to their intentions. For example, a candidate of a party, with as little as 19 votes, can become a senator only to defect on the first day of assuming office and turn into an independent.
The question then is: who does the now independent senator represent? The people of the state where the Senate seat belongs or the 19 voters?
The answer appears to be neither.
The defecting senator does not represent the people of the state anymore. That responsibility rightly belongs to the party who will now replace the defecting senator with another candidate.
The defecting senator also does not represent the 19 voters. Those 19 voters had cast their vote based on the defecting senator’s political allegiance at the time of the election.
So, why should the defecting senator still retain a seat in parliament?
Who owns the seat?
The Australian party system has developed to a point where seat ownership is difficult to discern.
One may argue that voters no longer vote for candidates personally. Rather, they vote for parties and as such, a candidate’s seat ‘belongs’ to the party and must be returned to the party if the candidate defects.
On the other hand, given that candidates of a party are directly elected by voters, one may argue that every seat belongs to the voters.
Either way, defecting is against the will of the people expressed during the preceding election.
Voters trust their elected representatives to make judgments on their behalf in parliamentary affairs. To assume that voters are also supportive of their elected representative’s decision to defect the party on the very first day of office would be short of absurd.
Can defection be controlled?
Beyond the frustration and disappointment, there are no laws in Australia that control the faith of defecting members. While sections 15 and 24 of the constitution determine the process of filling a vacancy in both houses, they do not prescribe a method for dealing with defecting members – nor does section 44.
The main problem barring Australia from enacting anti-defection laws at the Commonwealth level is the inflexibility of the constitution. The constitution exclusively defines the parameters of how a vacant seat may be filled and there are no legislative powers to alter this.
Therefore, if such laws were enacted in Australia, they could potentially be challenged on constitutional grounds, particularly under section 44.
Further, defection laws would also potentially contradict the implied freedom of political communication. However, one argument against this would be that such a law would be consistent with our system of representative government.
The only solution to this conundrum appears to be a constitutional referendum, which of course is a big ask – but not impossible.
Arthur Marusevich is a lawyer based in Canberra. He uses his five language skills to help people from disadvantaged backgrounds. Having written his first book, Arthur is an aspiring novelist and aims to publish one novel a year.
Emma Ryan is the deputy head of editorial at Momentum Media and editor of its legal publication, Lawyers Weekly.
She graduated from Charles Sturt University with a Bachelor of Communications (Journalism).