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I don’t think my last post quite addressed or properly rebuttedthe Opposition’s key legal argument about the Speaker. So, in essence, the advice given by the Shadow Attorney-General, George Brandis SC is that you cannot do by the backdoor what you can do by the front door. Since you cannot create a de facto vote through a legal agreement, you cannot create a de facto deliberative vote through a non-binding political agreement, which is written, formalised and signed by both parties. I guess to support this point, he would look at cases like Magennis (where the NSW and Cth governments signed an agreement where NSW would compulsorily acquire some houses in exchange for payments by the th. That scheme was designed to circumvent the clause in the Constitution requiring  just compensation for compulsory acquisition). The plaintiffs adduced evidence that such an agreement existed, the High Court struck down the NSW Act for being in contravention of the Constitution (even though strictly speaking the Constitution only binds Cth Acts in respect of that just compensation clause).

But the difference between a legally binding agreement/Standing Orers and a political agreement strikes at the very heart of the Parliamentary system. Each and every member of Parliament has been vested with the power to vote on Bills and they must themselves make that decision on whatever basis they choose. It is not for the High Court to make that decision for them, nor can others compel them to vote a certain way through binding agreements or through amending the Standing Orders. Flowing directly from that logic, MPs can make their decision on whatever basis they so wish – the Constitution recognises that it is a political decision, and the MPs will be weighing up political recriminations and consequences. Obviously, breaking a political agreement will have (some) political consequences. So the underlying rationale of the Parliamentary system itself demands and compels that a sharp distinction be drawn between a binding agreement and a plitical agreement. It is not attempting to use a back door measure when there is a clear difference in kind between the front door measure and he back door measure.

The Shadow Attorney-General is wrong. The pairing arrangement for a Speaker is constitutional so long as the Deputy Speaker is put under no undue pressure to pair and makes his own decision to do so. The Opposition’s refusal to comply with the agreement is a clear sign that the Deputy Speaker is exercising his discretion wholly free of any legally binding agreement.

What I don’t get however is the practical consequence of not pairing the Speaker. Surely it won’t mean that Bills that would have been passed under a pairing arrangement wouldn’t be passed without it – because the Speaker gets a casting vote in cases where the Bills wouldn’t be passed (and since he gets to vote, the pairing arrangement isn’t in force). Is it that the media is misunderstanding how Parliament works, or am I missing something?

Edit: As a delicious twist of irony, the Constitutional position has been made so much clearer by the Opposition’s intransigence. If Alex Somlyay agrees to become Deputy Speaker (in defiance of thefaceless men of the Liberal Party), then clearly he is doing that out of his own voluntary will (which as I have argued is the crux of the matter). Indeed, the fact that the Liberals feel free to disregard the pairing arrangement shows that it is a voluntary arrangement.

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