Should a Member of Parliament lose their seat if they defect from their political party?

The Tasmanian Government has proposed the enactment of a 'stability clause' which would vacate the seat of a Member of Parliament who ceases to be a parliamentary member of the political party that endorsed them at the time of their election. In other countries, this is known as an anti-party-hopping law, or an anti-defection law, or even a 'waka-jumping' law.
This video discusses the reasons for the enactment of such laws and the serious criticisms of them as anti-democratic measures. It will be followed by another video that looks more closely at the drafting of such laws, their constitutional validity and the problems with their interpretation and application by the courts.

[@CatastrophicalPencil]

From my limited 1st year politics at uni, the representative government system in Australia is pretty clearly a Burke-ian one; one that encourages them to represent their community to the fullest, but to exercise their "enlightened conscience". If the parties wish to retain members, the parties should work harder instead of enforcing their platform from on high. If the founders wanted political parties to be central they would have written them in; they didn't, and so we either rewrite the constitution to produce such changes, or we're stuck with the model. Thanks for making these quick snippets of the key aspects of constitutional questions; they're engaging and thought-provoking.

[@franktully3065]

Good points.

[@sheriff0017]

As someone who has worked in call centres, this kind of law strikes me as the acme of the "middle management" approach to anything. No real attempt to investigate, let alone address underlying problems. A solution that has no flexibility, and requires no real thought in implementation. It is also a deeply punitive approach where such things are completely unnecessary.

[@constitutionalclarion1901]

It will be interesting to see whether the Tasmanian Government goes ahead with it, and if so, what its terms will be.

[@doubledee9675]

Are things "completely unnecessary"? Most voters vote for a party, not a particular local member. There are some exceptions, but by and large it's the party that draws the support. And is it punitive to say to a local member "Yes, I voted for you because you were a member of a party which promised more dog parks, but now you want to spend money on facilities for cats, I don't want to support you any longer"?

[@sheriff0017]

@doubledee9675 Yes, it is completely unnecessary. If a party is losing members, simply punishing, or intimidating people won't address the cause. If the voting public don't accept a member's decision to leave the party, they can exercise their judgement at the ballot box.

[@TheAbeKane]

I think they should serve their constituents over their party. Their party didn't put them in power, but many seem to have forgotten they serve us and serve parties and lobbies instead

[@jasonwalker2950]

Most people vote for parties.

[@MenaceGallagher]

​@@jasonwalker2950yes, most people do vote on party lines, but for an MP the obligation is to serve the whole electorate, not just those who voted for them/their party.

[@mullauna]

@@MenaceGallagher that's a comforting myth, no more.

[@ToadRoach]

"Their party didn't put them in power", In Payman's case the Labor preference votes did put her in power as she lost on the primary vote.

[@keanusolan2844]

​​@@jasonwalker2950except it is not the party on the ballot, it is the actual candidate meaning that the vote belongs to the candidate, even if s/he is endorsed by a party.

[@alexpentland5462]

Thinking back to your reference to the Franklin Referendum, I think a fascinating discussion might be to cover the history of State-led referendums, given how little focus they are given in contrast to their Commonwealth comparisons, and why they were sought (be they constitutional reason or other instigating factors)

[@constitutionalclarion1901]

Yes - good point. I will add it to the burgeoning list.

[@cesargodoy2920]

I mean, isn't the whole parilmentry system based on a responsible government? if it is legally wrong for an MP to switch parties, then why not for them to vote against a popular prime minister? on the other hand, as a voter, I'd be pissed[Mad] and the idea of a party switch leading to a vote makes a certain amount of sense.its a hard problem. great video as always!

[@constitutionalclarion1901]

Thanks. One of the problems with these laws is that they can't really distinguish between party-defection based upon principle or reflection of the wishes of the electorate on the one hand, and defection based upon personal enmity, corruption or ego on the other hand.

[@MaryGraceHutchinson]

ty once again so informative and leaves one thinking.

[@constitutionalclarion1901]

Thanks. Very pleased to get people thinking.

[@mullauna]

As you point out on your channel, since the 1977 referendum, if a Senator leaves their original party and then later resigns -- they can't pick arrange their own successor -- it is nominated by their original party. That's how Janine Hanes replaced Steele Hall instead of his seat going to the Liberal Party.

[@JacobKnight-Barendse-pe4jk]

Your case for the independence of Members of Parliament is excellent, once again a really interesting video :) However could it be prudent to discourage defections by enacting a law that causes a by-election to be held if a politician defects from their party. Given that members of the electorate may Not agree with the reason that an mp is defecting? Couldn’t such a system address many of these issues such that rather then accommodating the needs of a political party that may be desperate to hold on to its majority. A system like this is focused on accountability to Australian Voters, is this not always the most important thing? Once again Amazing Video !

[@linus1703]

Very good video. My personal view is that whilst leaving a party that got you elected can certainly be a jerk move, it should not be a legislative issue. As there is no law requiring how political parties operate in regards to expelling members it makes it totally chaotic and too easy to be weaponised. Indeed on many occasions an MP saying they will leave the party has caused the party view to change. Especially in the ALP often they have not supported legislation because one or two MPs say they will cross the floor and risk expulsion. Another point to counter the idea that people vote based on party policy is that no party has a policy for every single possible situation and no voter would know every policy that even does exist. Indeed the parties make up policies as new issues arise, which obviously they need to do but this is one of the most powerful safe gaurds.

[@TheLolbot3000]

Thank you for another fascinating video!

[@shloidain]

Surely, if defection is banned, could a politician not just cross the floor and then be expelled from the party, and thus have the same effect in the long term? Also, this is really a matter of whether you are voting for a party or for an MP. Like in NZ, you are voting for a party moreso (at least with the Party Vote), it makes more sense to have these anti-defection laws than in a place like Australia, where the argument could be made you are voting for the individual.

[@constitutionalclarion1901]

Yes - party expulsion is also included in many anti-defection laws as triggering the vacation of a seat. It depends on the terms of the law, which I'll get into in the next video.

[@cinemaipswich4636]

What happens when a party expels a sitting member, and force them to the cross-benches as an Independent, or into the arms of another party?

[@constitutionalclarion1901]

It depends on the terms of the law (which I'll go into in the next video), but most would count expulsion as also triggering a vacancy.

[@ianmcintosh418]

It would be interesting to know if the law allows replacing the member if they quit, or if they are removed from the party. The anti defection measure might be useful if it only comes into force where the member chooses to leave the party. Quits. But NOT if they are expelled from the party. That would be useful to prevent the party enforcing the actions of a member. Better still would be to have the law require a by-election rather than simply allow the party to appoint a replacement. But to be honest I have no issue currently with the status quo.

[@drphiliplock]

Singapore and Malaysia have law that when a Member of Parliament resign or removed from the party they were elected, they lose their seat in Parliament.

[@davidwilkie9551]

If we can't see how democratic principles are observed by the Representatives there isn't much to see of accountability? Which is the argument in progress around the world.

[@shellyaus]

is their oath to the monarch, or to the party leader ?

[@constitutionalclarion1901]

The oath of allegiance, as set out in the Schedule to the Constitution, is to the monarch. In the past, Labor required its candidates to take 'the pledge', to commit to policies such as abolishing the NSW upper House, but I don't believe that happens any more.

[@shellyaus]

@@constitutionalclarion1901Interesting, didn't court say they could not abolish upper House, what happened in QLD?

[@constitutionalclarion1901]

@@shellyaus Different State. In NSW, the upper House was entrenched in the Constitution, so it could not be abolished without a referendum. In Queensland, it was not entrenched in the same way. There's a long and interesting story about how the Queensland upper House was abolished. One day I'll do a video about it. Thanks for prompting the idea.

[@shellyaus]

@@constitutionalclarion1901 was this not against last paragraph of section 128

[@mullauna]

no - and as AT alludes to, when Sir Joh came in, a lot of people paid a heavy price for what the ALP did in 1922 and it's now heavily suspected some with their lives (at the hands of "the best police force that money can buy").

[@AlexBaz143]

Wish I was around for the Franklin dam affair

[@the-flatulator]

Timestamp 3:31 - 4:04. I would very much enjoy seeing that tested in a court.

[@constitutionalclarion1901]

Yes, it would be interesting.

[@retabera]

Fatima Payman has entered the chat

[@jasonwalker2950]

YES.

[@jasonwalker2950]

The only individuals who are elected into parliament are independents. Party seats should belong to the Party.

[@davidmangalasinghe4002]

The senator entered politicsto fulfill the election manifesto of the labor party. The voters did cast their votes in favor of her for a labor government. If the senator decides to defect from the labor party due to her personal opinion over a war in another country she has in fact not only failed the labor party but those who voted to bring her into power. She needs to go to fresh polls and make the voters understand what she now stands for and contest to be re elected to office. If not she will remain a rogue senator for the next four years for a reason nobody knows at the expense of hardworking tax payer funds.

[@Lyphatma]

I hardly consider Israel a 'mature democracy'.

[@mullauna]

When compared to its neighbours? Not one Muslim-majority country is a genuine democracy outside Albania and Kosovo, let alone a secular, egalitarian one.

[@billmago7991]

​@@mullaunaIndonesia

[@mullauna]

@@billmago7991 corruption, Javanese Muslim domination of the central government..

[@allensutton5390]

What a load of BS

[@JacobKnight-Barendse]

Your case for the independence of Members of Parliament is excellent, once again a really interesting video :) However could it be prudent to discourage defections by enacting a law that causes a by-election to be held if a politician defects from their party. Given that members of the electorate may Not agree with the reason that an mp is defecting? Couldn’t such a system address many of these issues such that rather then accommodating the needs of a political party that may be desperate to hold on to its majority. A system like this is focused on accountability to Australian Voters, is this not always the most important thing? Once again Amazing Video !

[@constitutionalclarion1901]

If the consequence of party defection is a by-election, that mitigates some of the democratic concern, as you note, because the electorate at least gets to have its say. But in Tasmania, because of its multi-member proportional system, vacancies are ordinarily filled by a re-count with the party retaining the seat. I'll go into all this in the next video. It just got too long to do it in one!