Senator For Victoria and newly ex-Greens Senator Lidia Thorpe has caused a stir this week, after resigning from the Greens over its position to support the "Yes" campaign with respect to the First Peoples' Voice and deciding to pursue her own path.
Naturally this has caused the usual ripples that any kind of political rock throwing would but perhaps the weirdest set of ripples comes not from the right-wing trashmedia who would very much like to kill off The Voice due to unstated racism but from within The Greens themselves. Specifically The Greens' candidate Julian Burnside has been jumping up and down like a rabbit on a trampoline in an elevator.
A furious row over former Greens senator Lidia Thorpe has sparked demands she give up her Senate seat because it belongs to the party and not to her, with a key preselection rival rebuking her for defecting to the crossbench.
Human rights activist and barrister Julian Burnside, who sought the Senate position in a ballot against Thorpe two years ago, said she had treated Greens supporters badly when their work had won the seat for the party last year.
- Sydney Morning Herald, 8th Feb 2023
I have but one word for Julian Burnside and it is this: "Tough."
The idea that the people of Victoria voted for "The Greens" as far as politics goes, could very well be true. However, the assertion that the people of Victoria voted for "The Greens" as far as the parliament goes, is quite quite wrong.
The reason why this is so murky is that rather than by election, Thorpe was preselected by Victorian Greens members to fill the federal Senate vacancy caused by former leader Richard Di Natale's resignation under the rules of Section 15 of the Constitution. Also under the rules of Section 15 of the Constitution she was appointed to the vacancy at a joint sitting of the Victorian Parliament on 4 September and sworn in on 6 October 2020. Thus, under the Section 15 of the Constitution Senator Lidia Thorpe was appointed by the Victorian Parliament for the people of Victoria. That's the end of the matter there. There isn't any more. Mr Burnside's claim at this juncture, is ended.
The unsaid problem for Mr Burnside is that at no stage does the ownership of the vote, change from the voter to the party; at no stage does the ownership of the seat in the House or the Senate, change from the member to the party; no matter what the candidates for that particular party think. This is why I find Julian Burnside's comments that Lidia Thorpe should stand down, so strange. The votes cast by the voters, were never Green Party votes to begin with. They may have had the ability to determine the pre-filling order by which votes were allotted but they never actually gained ownership of the votes.
I know that this is going to sound insane to the majority of people but the various members of both the House Of Representatives and the Senate, are never members of parties when it comes to either their position within the chambers or as far as voting is concerned. Political parties are in fact synthetic overlays; for neither the Constitution nor the rules within the chambers, actually bind the members to their parties. The Constitution doesn't even mention that there even needs to be political parties. In fact, the whole party system in Australia didn't begin until about 40 years after the states were granted responsible government.
Even if a candidate quits the party or is disendorsed by the party which they are branded with, their election or appointment to either chamber is not invalid. Probably the most famous example of this recently was Pauline Hanson who was disendorsed by the Liberal Party after the ballot papers were printed but before the election. She was voted to become member of Oxley in 1996 and despite protestations, the Liberal Party knew that she had won the votes; not the party.
You will of course note that enforcing Section 15 in this case has one distinct point of failure. Lidia Thorpe has quit the party but not resigned from the Senate. Lidia Thorpe's resignation from The Greens is not a resignation from the Senate and as such, it does not create a casual vacancy. She remains as she always did, as Senator for Victoria. The parliament of Victoria appointed her to the Senate and not the Party, despite what the Party thinks.
This is more or less an identical scenario to when Jackie Lambie quit the Palmer United Party or when Cory Bernardi quit the Liberal Party. In those examples, they resigned from their respective parties but neither of them resigned from the Senate either.
I might think that Lidia Thorpe is as mad as a hat full of tacks. I might disagree with what she has to say with regards The Voice to Parliament. I might even see this as very very rude. However, she feels as though she can say what she wants to more effectively without being shackled by The Greens. As an elected Senator, she is fully entitled to do so. We have in the past had a Prime Minister who quit one party, then joined another, and remained as Prime Minister. The machinery of parliament ultimately doesn't care.
Governments are formed by the majority of members who can control confidence and supply. Legislation is passed by the majority of members in both chambers who have agreed that this is what the law shall be. Neither of those statements are dependent on political parties. We the general public do not vote for parties in Australia. We vote for people who will represent us. They just happened to be branded for what essentially boils down to little more than marketing purposes.
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