Late last year Democratic Labour Party (DLP) Senator John Madigan rose in Parliament to announce that he had quit his party and would serve the final three years of his term as an independent Senator. He has since started his own party called John Madigan’s Manufacturing and Farming Party. A sitting member can start a party without the 500 members normally required by the AEC.
This announcement sparked fury among DLP officials who demanded that he give the Senate seat back to the party.
In the 2010 election The DLP received 75,145 votes which equated to 2.34% of the primary vote. Senator Madigan was able to secure a seat due to preference flows from other candidates. Whether these preference deals had been organised by Senator Madigan or others in the party is unknown.
Last year The DLP president Paul Farnell stated that the party was willing to fight all the way to the high court for Senator Madigan to relinquish his seat. At the time the party asserted that Section 15 of the constitution gave them the right to choose the Senator who occupies the seat.
DLP federal secretary Michael Byrne has more recently announced that they received legal advice that any challenge to Senator Madigan's decision to quit the party but hold onto the Senate seat would fail. Then last week the party was deregistered by the AEC as they no longer had a sitting member and were unable to demonstrate the requisite 500 members to maintain registration.
With mounting disputes within the Motoring Enthusiasts Party in Victoria and the Palmer United Party we thought it might be intriguing to take a look at what the Constitution says about members leaving their parties.
First let’s take a look at Section 15
This section of the constitution deals with casual vacancies in the Senate and was the subject of a successful referendum in 1977.
The purpose of the referendum was to allow the replacement of a senator with a member of the same political party when a casual vacancy occurred.
Prior to the change the Houses of Parliament of the State for which the Senator was chosen voted together to choose a person to hold the Senate place. It was a long standing convention that a replacement should be filled by a person from the same political party. However, in February 1975 the NSW Liberal Government chose to replace a retiring Labor Senator with a candidate to suit their political agenda. It altered the balance of power in the Senate and ultimately led to the Constitutional crisis in November 1975.
Does Senator Madigan vacating the Democratic Labour party create a casual vacancy in the Senate?
Ultimately the DLP wanted to clarify whether the Senate seat belonged to the party or whether the seat belonged to the individual whose name was on the ballot paper.
The advice that the DLP received gives doubt that this section would be able to be used to wrest control of a Senate seat from an unruly Senator.
Perhaps we might ask whether something is missing from the Constitution that would allow parties to retain a seat if a member or Senator decides to leave the party.
Although….Senators and Members leaving parties in not uncommon
Crikey has published a list of 96 people which they describe as “political turncoats”. There can be ramifications for politicians leaving a party part-way through a term when your allies become your enemies. Just ask Peter Slipper. However, most of these politicians do serve out their terms as Independents. The ones that don’t have any skeletons-in-the-closet to be exploited by former colleagues can go on to have long careers. But it can be a tough fight. The National-turned-independent Tony Windsor received a lot of criticism when he sided with the Labor party in the 2010 hung Parliament.
Senator Madigan claims he was undermined and spied upon by the staff that party officials provided him. You can read some of the correspondence here that was tabled in Parliament. We might ask - should a Senator be beholden to a party if the party circumstances become untenable.
The Constitution and political parties
The Constitution was written in such as fashion that it does not dictate the number and strength of Australia’s national political parties or the dynamics of competition among them. The only section of the Constitution that mentions the statement “political party” is Section 15 that was updated in 1977.
John Madigan’s Senate place belongs probably belongs to him and not the now de-registered DLP, but it would have been interesting to see the definition of casual vacancy tested in the High Court.
Image attributed to AS 1979