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Who owns the seat - the party or the individual?


On Thursday 11 March 2015 Senator Glenn Lazarus became the third senator since September 2014 to leave his/her party and sit as an independent in the Senate. Senator Lazarus announced his decision to leave the Palmer United Party (PUP) on Facebook citing ‘a different view of team work’ as the reason for his move. He confirmed this decision in a statement to the Senate on 16 March 2015.

 Previously, on 24 November 2014, Senator Jacqui Lambie (formerly PUP) announced her decision to the Senate to sit as an independent and on 4 September 2014, in a statement to the Senate, Senator John Madigan (formerly Democratic Labour Party) announced his resignation from the DLP. The DLP signalled its intention to write to the Victorian Governor asking him to remove Senator Madigan from the Senate and if this action fails to take the matter to the High Court. It was also reported that the DLP asked PUP to back any High Court challenge. On 16 March 2015 PUP confirmed that the party had commenced discussions with the DLP.

Election analyst Antony Green has written about this situation noting that ‘it is only if a Senator’s seat becomes vacant [which does not apply in the case of Lazarus, Lambie and Madigan] that their party affiliation matters’.  Green added that:

It is true there is a logical inconsistency in that Senator Madigan can resign from the DLP and continue as a Senator, but if he were to resign from the Senate he would not be entitled to be re-appointed to his own vacancy. However illogical, this paradox is allowed constitutionally.

At an Additional Estimates hearing on 23 February 2015, the Clerk of the Senate, Dr Rosemary Laing, described the process of filling a casual vacancy created by the resignation of an independent senator who had defected from a political party. Dr Laing stated that:

the Constitution [
section 15] is very clear that the right to replace lies with the political party under whose banner the senators originally stood for election. The key is: what were they at the point of their election, when they were chosen by the people of the states? That determines the replacement.

A Parliamentary Library paper published in 2003 outlined the issues associated with party jumping in Australia and selected overseas countries. The author, Sarah Miskin noted that: 

Although defections in Australia are usually accompanied by a hue and cry about the party jumper's right to retain the seat, there is nothing beyond this expression of outrage that can be done—Australia has no law to control what should happen when a defection occurs (p. 23).

Parliamentary Library records show that, since 1901, 41 senators have defected from their parties to sit as independents or join another political party.

In the House of Representatives, a member who resigns from his/her political party to sit as an independent or join another party continues as the representative of that electorate. Section 24 of the Constitution states that ‘The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …’   A vacancy in an electorate is decided at a by-election or general election. The most recent defection in the House of Representatives was Craig Thomson (ALP) who became an independent in April 2012.

Similarly, in the UK, the Parliament website notes that a ‘by-election does not automatically take place if an MP changes political party’.

The last two House of Commons by-elections have been exceptions to this practice. When two Conservative members, Mark Reckless (September 2014) and Douglas Carswell (August 2014) defected to the UK Independence Party (UKIP) they also made the decision to resign from their seats to seek a mandate at by-elections. Mark Reckless noted on his website:

The people, not party whips, are my boss. They have the final say, which is why I resigned to allow this vote on my decision to stand for re-election under UKIP colours. I did so to be faithful to the promises I made to them, promises I simply could not keep as a Conservative – and which I can only honour to my constituents in UKIP. 

Both Reckless and Carswell won their respective by-elections.

When Carswell announced his defection and intention to force a by-election the Guardian noted that ‘it is the first time since 1982 that an MP has resigned their seat to fight a by-election on behalf of another party’.
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