Senate is the chaotic, unrepresentative swill that Keating described

Paul Keating once described the Senate as unrepresentative swill. Australia’s most recent parliaments have borne this out.

In 2013, the voting system was gamed to enable micro parties to win Senate seats with a minuscule share of the vote. This turned the election into a lottery. Parliament responded by rewriting the rules so that Senate elections better reflected the popular will.

Even larger problems emerged after the 2016 election that demand a parliamentary response. During the past two years, the Senate has been decimated by resignations and disqualifications due to section 44 of the Constitution. One in five senators has ­departed, including almost half the 20 minor party members on the crossbench. This unprecedented turnover has generated instability and arbitrary results.

It also has weakened party loyalty. Allegiances have realigned, and free agents have emerged in unpredictable ways that affect the balance of power. Enacting legislation resembles a random numbers game. Important bills pass or are rejected depending on who happens to be in the Senate at the time and where their party allegiance lies. The Senate has become chaotic and unrepresenta­tive, and so is unable to fulfil properly its role of scrutinising legislation and holding the government to account.

The disloyalty of our senators cuts to the heart of the role of the chamber. The Senate is a house of political parties that just happens to provide equal representation to each state. At the 2016 federal election, 93 per cent of voters marked their ballot paper above the line to preference a political party rather than a candidate. In doing so, voters determined the composition of the Senate as between parties while leaving it to the parties to choose their representatives for up to a six-year term.

The fact the Senate is a house of political parties also is demonstrated when a senator resigns. There is no by-election for the seat, as occurs in the House of Representatives. Instead, the Constitution mandates that the casual vacancy is filled by a member of the party that won the seat at the prior election. Even where a senator shifts from one party to another, a vacancy caused by their resignation will be filled by the party to which they belonged when they were elected.

It is understandable that party loyalties can break down and irredeemable conflicts arise. However, senators should pay a price for discarding the party that enabled their election. This is because in almost every case the people have voted for a party representative rather than the individual. As a result, the right course for a senator who has left their political party is to resign from parliament.

An example is Cheryl Kernot, who resigned her Senate seat in 1997 when she left the Democrats to join Labor. She is an honourable exception. Others have preferred to remain in the Senate, with the perks and power that go with it. Meg Lees remained in 2002 when she left the Democrats, as did Mal Colston when he left Labor in 1996. In the parliament, Jacqui Lambie left the Palmer United Party to become an independent and then formed her own party. John Madigan, the Democratic Labour Party’s first federal member since 1974, did the same.

Disturbingly, this trend has accelerated in the present parliament. Disloyalty has become so commonplace that it seems to be readily accepted among minor party members. The changes themselves are complex and bewildering. A seat held by the Jacqui Lambie Network now belongs to the Nationals, a Nick Xenophon Team senator is an independent, One Nation senators represent Katter’s Australia Party and the United Australia Party, a Liberal seat is held by the Australian Conservatives, and Family First has lost its only seat to the Liberals.

In the past, there have been fewer such examples and the case for reform has been weaker. It has been more important to preserve the right of a senator to shift their allegiance in accordance with their conscience. This, though, can no longer be tolerated. The unprecedented number of party defectors across the past two parliaments demands a remedy. Changing parties has become so routine that it undermines the legitimacy of the Senate and its democratic function of expressing popular will.

Parliament should change its standing orders to remove the benefits and voting rights of senators who abandon their party without resigning from parliament. It also should reform the law. Where a person leaves the party that has enabled their election to the Senate, their seat should be vacated. The seat then would be filled by a member of their former party. These changes are needed to restore the proper functioning of the Senate and to rebuild public confidence in the parliament.

George Williams is dean of law at the University of NSW.