It is extraordinary. An unnoticed provision of the agreement for the reform of House of Representatives procedures undermines the independence of the Speaker and offends at least the spirit of the Constitution.
This only became obvious when independent Rob Oakeshott did what has never been done before. He made a public bid to be Speaker but also wanted to be an active partisan member.
In olden times, members were reluctant to be speaker because they could have to face the King. Even now the tradition is that the one elected is dragged unwillingly to the chair. Am I correct in recalling that the infant son of a recent speaker cried out from the gallery “ Leave my father alone”?
Legal experts are warning this could lead to a High Court challenge as to the validity of any law passed under the agreement. The Achilles’ heel of the agreement is in giving the Speaker a pair that is having someone from the opposite side refraining from voting.
Under the Constitution the Speaker is only to have a casting vote if the House is divided. There are conventions about the use of casting votes. (When I have had one, I always tried to use it to maintain the status quo, which I understand to be the convention.)
The convention guiding the Speaker of the House of Commons is known as Speaker Denison's rule. This is a constitutional convention established by a 19th century Speaker, John Evelyn Denison. This is to exercise the vote so as to favour further debate. Where further debate is not possible, the Speaker should vote in favour of the status quo.
The intent of our constitution is clear. The Speaker is not to have a deliberative vote. Section 35 provides:
The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.
But by purporting to give him a pair, the agreement effectively gives him what the Constitution specifically denies the speaker.
And as Edward Davidson, of Graceville, in Queensland asks in his letter to The Australian (18/9):IF Rob Oakeshott becomes Speaker, why would he be paired with an opposition member? As an independent, surely he should be paired with another independent. I nominate Tony Windsor. What could possibly be fairer than that?
..legal opinions, the High Court and GetUp!…
[ to continue click on Read more]
The constitutional lawyers named in the report by Chris Merritt and Patricia Karvelas in The Australian 18-19 September go no further than saying the deal goes against the spirit of the Constitution. They warn of the potential of a challenge.
Professor Geoff Lindell said it would be going too far to describe the pairing proposal as a direct breach of section 40 of the Constitution but he believed it was inappropriate for a potential Speaker to be trying to benefit from a mechanism that breaches the spirit of the Constitution.
"We do need to remember we have a written constitution and this is a key thing – it is like the quorum provisions – you just cannot ignore something staring you in the face," he said.He warned that in the past the High Court had examined the question of whether laws had been validly enacted by a joint sitting of parliament. "By parity of argument, if there was a legal problem here this could get into the courts," Professor Lindell said. "That is very much against the tradition of Westminster parliaments, but because we have a written constitution I think you are heading toward a possibility of catching (the High Court's) attention."He said the Commonwealth Solicitor-General and parliamentary staff were able to provide advice on this.
"What the agreement does is allow the Speaker almost to vote negatively by taking one vote off one side of parliament," Professor Greg Craven said. "It gives the Speaker a negative vote." This meant the "parliamentary reform" agreement was "pushing against the intention of the Constitution".
…and the High Court?
If there were to be a legal challenge no one really knows how the high Court would react. Few constitutional lawyers would have predicted the recent GetUp case, in which the High Court found the early closing of the rolls to be unconstitutional.Incidentally on that case, the High Court handed down its decision before the justices had released their written judgements. They probably had not written them. All we know is that it was by majority, although intelligent guesses are being made about the composition of the Court.
Justice John G Roberts, Chief Justice of the United States recently pointed out that judges will change their minds when they are writing a judgement and see the weight of the different arguments.
One suspects Their Honours are locked in on GetUp!