SENATOR Cory Bernardi’s statement that he wants to restore integrity and confidence in Australian politics as he ratted on the party under whose banner he was elected is about a credible as the assertion that Donald Trump will “never let you down” spoken by his third wife. And they are linked.
Remember Bernardi was photographed in the United States with a red baseball cap with the slogan “Make Australia Great Again” emblazoned on it front.
He was in the US, of course, on a publicly funded study trip to the United Nations, a body he has condemned as irrelevant.
The reaction from within the Liberal Party and the public generally has been one of outrage.
Bernardi was elected to the Senate purely through his endorsement by the Liberal Party and being second on the Liberal South Australian Senate ticket. Personally he got just 2042 votes, a paltry 0.19 per cent of the formal vote and a minuscule 0.025 of a quota. The Liberal Party, on the other hand got 329,516 party votes, or 31.05 per cent, enough to give the Liberals four of the 12 Senate seats.
His colleagues said the honourable thing would be for Bernardi to resign and stand again as an independent or under his new banner as an Australian Conservative.
But that course is not open to him. If he resigns, his seat becomes vacant and is filled according to Section 15 of the Constitution under which the seat is filled by a person nominated by the Liberal Party and confirmed by the state parliament.
There is no by-election for the vacancy, unlike in the House of Representatives.
The outrage at Bernardi’s action is compounded by the fact that he did it so early in his six-year term, with nearly five and a half years to go.
Yet there will be a half Senate election sometime in the next two and bit years. At that election the bottom two Liberals elected, Senators Anne Ruston and David Fawcett will come up for election.
To be honourable, perhaps Bernardi should resign just before the next half Senate election, handing the seat to the Liberals. He would then contest that half Senate election under the Australian Conservatives banner.
That way he could test whether he will “give hope to those who despair at the current state of Australian politics and who demand a better way” three years sooner than otherwise.
Even so, the Senate election system remains a mess even after last year’s Greens-Coalition deal to allow above-the-line preferencing.
The Barnardi case shows that the successful 1977 referendum to ensure the party balance remained the same after a vacancy from resignation or death did not go far enough.
And by the way, at 830 words, the amended Section 15 is the longest and most convoluted section in our Constitution – longer even than the section which sets out all the powers of the Commonwealth Parliament.
Six of the 44 referendums held since Federation have been about the Senate, two of them successful – the one in 1977 and one in 1906 which moved the terms from January to July, arguably making things worse.
The unsuccessful four were three cracks at getting Senate terms to be two terms of the House of Representatives rather than six years, thus ensuring simultaneous elections and no separate half Senate elections caused by early House of Representatives elections; and one that would beak the nexus requiring the Senate to be half the size of the House of Representatives, so the House could be increased without having to increase the size of Senate.
Even former Prime Minister Tony Abbott acknowledges that the Senate system is broken. He wants an end to double dissolutions, allowing twice rejected legislation to go straight to a joint sitting.
Getting rid of double dissolutions is a good idea, but there should be a supervening ordinary election before the rejected legislation could go to a joint sitting. Otherwise the Senate would be emasculated.
So with the Bernardi stunt and the gridlock caused by the rise of minor parties it would be good if some bipartisan proposals with cross-bench support were looked at to fix the whole Senate shemozzle.
The public has probably got a bigger appetite for change than at the times of previous referendums.
Breaking the nexus and simultaneous elections have merit, despite earlier rejections. Getting rid of double dissolutions and allowing a re-elected Government to pass rejected legislation through the house alone has merit.
And then we have to deal with replacing senators who resign from the Senate or die, and we have to deal with what happens when a senator resigns or is expelled from the party under whose banner they were elected.
Perhaps you could have a simple count-back – the same way the ACT deals with vacancies in its Parliament which is elected in a very similar way to the Senate. It is also the same way that Senate vacancies are dealt with when a senator is held to have been ineligible to stand at the election.
In nearly all cases of count-back a person of the same party gets elected.
Whether you extend that to the Bernardi situation may be contentious. But given the strong party voting in the Senate and extremely low individual vote it has merit. Certainly, it would appeal to Bernardi’s erstwhile colleagues. Surely, the next Liberal on the South Australian Liberal ticket which totaled more than 300,000 votes has a greater democratic right to sit in the Senate than Senator Bernardi who got just 2043 votes and would be nothing without the party banner he was elected under.
This article first appeared in the The Canberra Times and other Fairfax Media on 11 February 2017.