The proposal that the Speaker be paired was always problematic. No one can predict how the High Court would react to a challenge to legislation passed while a pairing agreement was in place.
It is not surprising then that the theme in the legal advice and commentary suggests that the wisest course would be not to attempt pairing.
This theme is common both to the opinion from the Solicitor General, Stephen Gageler SC, based as it is on a surprisingly limited question, and that of the broader opinion by the shadow Attorney General, Senator George Brandis SC, as well as his critique of Mr. Gageler's views. To read these, click on the underlined links in blue in this paragraph.
Why risk a finding that legislation be held to be invalid? It is not that any constitutional lawyer is saying that pairing the practice would be ruled unconstitutional. What is common to all is the counsel that it might.
…Labor Speaker especially vulnerable…
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This would be particularly so in relation to a speaker who is a member of the Australian Labor Party in a way which does not apply to a Speaker at Westminster who comes into Parliament under the aegis of the British Labour Party.
This is because a Labor Speaker at Canberra is bound by the Caucus Pledge. The sanction for not following a Caucus decision extends to the loss of endorsement. This would mean that the Labor Speaker’s pair would effectively be under the control of the Caucus, a fact which could well sway the judges.
(Under the Rudd government, at least with the advent of what is called the Global Financial Crisis, the decision making power of the Caucus and the Cabinet seemed to move to a group of four ministers. But their decisions seemed to be treated as enforceable under the Caucus Pledge.)
What is clear is that whatever the Speaker’s political allegiance, pairing would undermine the independence of the office and thus offend, at least, the spirit of the Constitution. Rather than making the Speaker more independent, he or she would be even more politically partisan.
This 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. The concept of a roaming pair under his speakership revealed the absurdity not only of his bid, but of the very concept of the Speaker being paired.
…Constitution clear: only a casting vote…
Legal experts were warning last weekend that this provision could lead to a High Court challenge as to the validity of any law passed under the agreement. Under the Constitution the Speaker is only to have a casting vote if the House is divided.
There are well known conventions about the use by chairmen of casting votes.
The convention guiding the Speaker of the House of Commons is known as Speaker Denison's rule. The Founding Fathers would have been well aware of this. This is a constitutional convention established by a 19th century Speaker, John Evelyn Denison. Under this, a casting vote is to be exercised 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. This was affirmed when the Constitution was being drafted and an unsuccessful attempt was made to give the Speaker a deliberative vote on proposed constitutional amendments ( Conv.Deb., Syd.[1897,pp.461-3; Quick & Garren, Annotated Constitution p.483).
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.
By purporting to give him a pair, the agreement effectively gives him what the Constitution specifically denies the Speaker.
As with the Solicitor General and the shadow Attorney General, 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".
George Brandis SC has expressed a similar view. The opinion of the Solicitor General Mr Stephen Gageler SC is in response to the narrower question whether there is “ any necessary constitutional impediment “ in the paring arrangement. His is a qualified answer. He warns that if the pairing agreement were held to give to the Speaker the substance of a deliberative vote, “the potential for the application of the constitutional prohibition could not be ruled out”
The very clear conclusion is that only a foolhardy House of Representatives would seriously contemplate such an practice so offending the spirit if not the letter of the Constitution.