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(I apologise for the heading, alas a good headline was never my forte)

The major newspapers, the SMH and the Australian, don’t seem to have reported the release of the Solicitor-General’s advice on the constitutionality of the Speaker’s position last night. It wasn’t on either of their online sites so I had to Google it.

http://www.smh.com.au/national/abbott-wont-back-down-on-speaker-20100922-15n14.html

http://www.theaustralian.com.au/national-affairs/libs-set-to-tear-up-deal-on-speakers-pair/story-fn59niix-1225928046392

Neither story explains the substance of the advice (presumably on the quite correct assumption that most people are too dumb or uninterested to understand constitutional law). My last post focussed more on the practical difficulties with an Oakeshotte speakership rather than the constitutionality of a paired vote in general, so I thought I would briefly explain the constitutional arguments.

[Actually, I typed this out and realised the word ‘briefly’ was completely inapt to describe what I wrote… so here’s a much briefer version I wrote in an email yesterday:

PS: What do you guys think about the debate about the Speaker’s constitutionality? At first, I agreed with the Liberals, then I thought about it and realised I still agreed with the Liberals. Agreements cannot bind the discretion of Parliament or Parliamentarians, so its not an agreement enforceable at law unless it were placed into the Standing Orders – but if it were formalised into the Standing Orders, there’s a risk that giving the speaker an effective deliberative vote would be unconstitutional. It is only effective as an agreement binding at will, such that if the Liberal Party out of the goodness of its heart and fearing political (and not legal) sanction decided to pair one of its members for each and every vote of the Speaker, then that would be a valid bill.

Read on, for those of you who want the full explanation. I am, however impressed by my own ability to turn a 1 paragraph explanation into a 2 page explanation by accident…]

Under s 40, the Speaker may not exercise a deliberative vote but may only have a casting vote. That effectively codifies the Constitutional convention (brought over from the days of Westminster) that the Speaker should be independent if not fully impartial on each and every vote. I think the wisdom of that proposition is so well illustrated by the example of an Oakeshott paired Speakership. If a Bill came up, Oakeshott would have to decide to vote yea or nay on each Bill, and thus have to actively contemplate his position at the beginning. He would then have to listen to debates and consider if he would change his mind. That thought process is totally inconsistent with the idea of an impartial arbiter. Ann Twomey explains.

Now, the problem is that Rob Oakeshott wants a de facto deliberative vote through the pairing arrangement where he himself does not cast a deliberative vote but his vote is counted by removing the vote of someone who intended to vote the other way. That would clearly breach s 40 if the Standing Orders (the procedural rules of the House of Representatives) were amended to enforce that. It would also breach s 40 if some document which was intended to be legally enforceable was drafted between the major parties because Parliament cannot bind exercises of its own discretion (including which way they will vote on future Bills). If I sign a contract with someone, saying that I will vote down an ETS if BHP voluntarily cuts carbon emissions by 100%, that is a void contract which is not enforceable by law. However, if I still choose to vote against an ETS, despite the voidness of that contract, my vote remains unimpeachable. I may have voted against it to honour the spirit of that agreement. I may have voted against it because of the political ramifications of me making such a public agreement with BHP then reneging on it. I could have voted it down for completely different reasons. In each and every case my vote is valid.

For the same reasons, so long as this agreement is not intended to be binding at law, there are no problems. And, as a question of fact, it appears that the agreement between the major parties and the independents was not intended to be any sort of contract. It’s very skimpy on the details, it has no consideration. It’s just a heads of agreement for a political document. That, in essence, is the legal argument for the Government and I think it is the correct legal answer.

The Opposition (and anyone adversely affected by a Bill enacted with a de facto deliberative vote) would argue two things. Firstly, s 40 codifies that constitutional convention I spoke about. The proper process of argumentation has not been followed, and perhaps the voting might have gone differently if the Speaker hadn’t disallowed this question or told Christopher Pyne to shut the fuck up in that particular instance etc etc. Technically, this is a valid argument. Courts often distinguish between procedural fairness and substantive fairness in decision-making under administrative law. If the proper procedures were followed (ie having an independent Speaker) then the decision of a decision-maker is unimpeachable (notwithstanding having come to the correct decision on the merits) and vice versa. In that case of Parliament, however, we can see Courts being far more unwilling to interfere. They will find some easy excuse not to even touch the issue.

Secondly, the Opposition may argue that you cannot do through the backdoor what you cannot do through the front. In other words, s 40 prevents you having a deliberative vote and therefore, you cannot have a de facto deliberative vote. Again, this is a valid point, but I think one which is adequately defused by the point that its not really a de facto deliberative vote. If we have an ALP Speaker, the paired Liberal is not bound to negate his own vote except by political pressure. He is still free (legally speaking) to change his vote. So it is not a de facto deliberative vote.

The other major issue for the Opposition is justiciability. It is wildly unlikely that the High Court would be willing to give standing to an MP to challenge the pairing arrangement just because he is an MP. It is also wildly unlikely (though the HCA has left the door open in certain circumstances) for any Bill to be challenged before it is signed by the Governor-General. So the only option is for someone adversely affected by an Act passed through this invalid procedure to sue. But, if it has been passed by this procedure then it probably conformed with s 40 anyway! Let me put it this way – if the Bill passed the lower House with >2 votes, then even if we invalidate the Speaker’s de facto vote it passed with >1 votes. If the Bill passed by 1 vote…  it was the vote of the Speaker that got it over the line. But that’s exactly what a casting vote is! The vote that gets you over the line.

In those circumstances, the only thing you can argue is that the proper procedure was not followed and that the Speaker was not impartial. But other aspects of the Constitution suggest that the Speaker need not be strictly impartial. For one thing, he is an elected Member of Parliament and clearly must be looking out for his electorate’s own interests. For another thing, the convention also states that he should come from the Government benches anyway. And, as a practical matter, the Courts wouldn’t want to touch this issue with a ten foot pole.

So, in summary, the Solicitor-General’s advice is the correct advice in law. The pairing arrangement is constitutional. But we will probably never find out since there is absolutely no way it will ever reach a Court.

As for the practical concerns – as I said, its a dumb idea for Oakeshott to be Speaker anyway. But a pairing arrangement for an ALP Speaker and a Liberal Deputy Speaker is an excellent idea to make the Parliament more stable in this hung Parliament.

Moving forward, however, Tony Abbott’s choice is a starkly political one. Does he continue to assert the unconstitutionality of an agreement that he himself had agreed to, or does he accept the SG’s advice? If he opposes, then he risks political backlash at reneging on an agreement to ensure the stability of government for his own political gain (though, unless the election is held very soon, that will all be forgotten by then).

In other words, Tony Abbott has the choice of giving the ALP the Speaker now or forever holding the pieces.

PS: As a disclaimer, I obviously haven’t done any research beyond the application of what we learned in Public Law and Constitutional Law. You would be fool to take legal advice from a blog which has, at various points, advocated for a corporation’s right to marriage and called Julia Gillard an inspiring leader. This post provides legal facts and not legal advice.

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