Is Thorpe the underarm bowler of Australian politics, or a dead-set warrior?

The senator's decision to cut ties with her party could be seen as a legitimate exercise in counter-sovereignty.

Lidia Thorpe, to immediate applause/infamy, has?departed the Greens?to sit on the Senate crossbench as an independent, just over seven months after she was elected on a party ticket. We’ll come to her reasoning, but first, is it cricket?

The practical consequence of her move is that she is looking at the balance of a six-year term wielding the power, and collecting the salary, of a senator with no strings attached. There’s no ambiguity about this, and certainly no legal consequence.

The constitution establishes the basic mechanism by which we elect senators, and it speaks only of them as candidates; it does not mention political parties. Once elected, on whatever ticket, and sworn in, the successful candidate takes their seat and it’s theirs until their term ends. Unless there’s a double dissolution, that’s six years.

The cricket analogy comes in when we measure the constitutional facts against the reasonable expectations of voters. In Senate elections, electoral law has created two voting options, as you’ll know from your intense scrutiny of the typically eight-foot-long ballot paper: above the line for parties or groups of candidates; below the line for candidates by name.

Most voters go above the line, putting a “1” next to the party they prefer. Senate seats are allocated by quota, so the more votes the party gets, the more of its candidates get seats.

Thorpe had the top spot on the Greens’ Senate candidature for Victoria at the election. She got 40,174 personal votes below the line, while the party scored 529,429 primary votes above the line. Simply, she’s in the Senate because her party got the votes that put her there.

People who voted Green undoubtedly didn’t contemplate this: that one of the Senate seats the party secured is now held, for the next half-decade, by an independent. That’s the practical consequence.

The ethical question is more complex. Thorpe has not done anything illegal nor broken any convention. However, her decision to leave the party is generally frowned upon as a breach of faith with her (or rather, the Greens’) voters.

Can the party demand its seat back? No, because it isn’t theirs — it’s hers. Finders keepers, in a way. (To be clear, the party isn’t asking for that; they’ve copped it on the chin.)

There is a counter-argument applicable to Thorpe’s particular circumstances as an Indigenous politician: that it lies ill in the mouth of settler Australians to be complaining about an Indigenous person taking something that institutional society claims to be its property.

It’s an interesting thought, the idea that what Thorpe has done can be fairly characterised as a legitimate exercise in counter-sovereignty by a representative of the illegally dispossessed.

That notion ties directly to what Thorpe said when announcing her exit: that she wants to “represent” the “strong grassroots Blak sovereign movement” she believes exists in Australia. Her opposition to the Voice proposal has been based on her concerns about sovereignty, and she has been consistent in her position that treaty should come first.

It should also be noted that, in 2020, after she was first given a casual vacancy in the Senate to replace Richard Di Natale following his retirement, Thorpe said, “It is my people that have put me here. The Greens just stamped it.” So, she did flag her first loyalty clearly enough, before the party decided to run her as its candidate at the general election.

Giving Thorpe the full benefit of the doubt — and I don’t see why we shouldn’t — it’s hard to find a substantive inconsistency in her words and actions. Sure, if she always intended to do what she’s done, then there was deliberate artifice in her choice to stand as a party candidate in 2022, and the voters in Victoria are entitled to feel dudded.

However, accepting she is sincere in her basic convictions around sovereignty and the illegitimacy of our constitutional framework (remember, she did have to be?sworn in twice?after first refusing to express her allegiance to the queen), it’s fair for her to ask why she should comply with conventions made by settler society in furtherance of its long-term illegal occupation of territory never ceded?

In that frame, taking a bit of liberty with voters’ faith while doing nothing remotely illegal, to secure a seat in the upper house and wield some actual legislative power for a while, is a long way from bomb-throwing anarchy. It could be described as, well, a poignant fuck-you to the power structure she believes keeps her people down by design and intent.

Personally I’m not a big fan of Thorpe’s decision, but I do get it and I kind of admire it. More importantly, I have no business telling her what she should or shouldn’t do. I think we should let it be. If you don’t like it, the next election isn’t that far away.

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