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In case you want to read it, here is the Solicitor-General’s advice on the pairing of the Speaker:$file/SG+No+++37+of+2010+Office+of+Speaker+of+the+House+of+Representatives+22-9-10.pdf

His summary is somewhat more pithy than mine:

The question is: Is there any necessary constitutional impediment to a pairing arrangement between the Speaker of the House of Representatives and another member from an opposing political party if that arrangement has a fixed operation irrespective of any particular vote?

My answer is:No, subject to two provisos. The first proviso is that the arrangement could not give to the Speaker a deliberative vote and could not deprive the Speaker of a casting vote. The second proviso is that adherence to the arrangement by the other Member could only be voluntary.

The SG’s opinion, in essence, lays out the two relevant sections (ss 40, 50 of the Constitution) and examines the historical interpretation and interaction of these two sections. Section 40 provides that every member shall have a deliberative vote and that the Speaker shall have a casting vote. Section 50 allows Parliament to create its own internal rules, the Standing Orders. Essentially, s 50 may modify the operation of s 40 (eg. by prescribing a time for those votes and perhaps even compelling MPs to vote). He notes that successive AGs and SGs, including Sir Garfield Barwick QC and Sir Anthony Mason QC, have previously come to similar conclusions on their interaction. The question is merely one of extent.

Looking firstly at whether the Parliament may pair ordinary MPs, he notes that this is standard practice in the Australian Senate, the UK House of Commons and the House of Lords and expressly adverted to in the Canadian House of Representatives where there was a formal register for pairs. This of course shows that Parliament may advert to a pairing arrangement without breaching the Constitution. The only requirement was that this was a matter of moral or political obligation for the MPs and it was not enforceable by the Speaker:

“The consistent attitude of the Chair on this question was summed up by Speaker Watt when, in reply to a question as to whether it would be a breach of honour if a Member did not observe a pair, he observed that the Chair knew nothing of pairs, the question of honour being a matter for the Members and not the Chair to decide.”

On the second and more important issue of whether a Speaker may be paired (beginning at page 14), he begins by analysing the rights and obligations of the Speaker under s 40. The SG believes that there is a positive duty on the Speaker to exercise a casting vote as it is a ‘constitutional necessity’ for it to act as a mechanism for resolving the indeterminacy arising from an equality of members. Through a historical analysis, he concludes that the Speaker must be impartial. He then concludes there are two or three constraints imposed by s 40:

1) The Speaker may not be permitted to exercise a deliberative vote nor prevented from exercising a casting vote

2) MPs may not be bound by an agreement that can be made the subject of sanction by the House for non-adherence in respect of their deliberative votes. However, so long as an agreement is voluntary, that is fine – regardless of how formally it is expressed.

3) There is potentially a substantive constraint on the Speaker cannot exert influence over the exercise or non-exercise of a question to be determined by influencing a deliberative vote. This would be (if the prohibition existed) a question of fact or degree. He thought that the present agreement did not breach this potential constraint, even if a MP were paired with the Speaker because firstly, the Speaker does not have a deliberative vote and secondly because that arrangement stands irrespective of what particular Bill is being determined. So, it does not influence a particular question to be determined.

So that was the SG’s opinion. I essentially reached the same conclusion as him, through a much less learned and comprehensive path. His advice was strongly calculated to emphasise that this opinion applied regardless of how formal an arrangement this was, so long as it was voluntary. If I were the Opposition, I would hone my argument based on the third potential constraint.

Firstly, if Oakeshott were Speaker then that would actually breach the third prohibition. As I have previously explained, because Oakeshott does not hew to any party line he must decide each question on its merits. He must make an interim decision as to how he will vote during debate, and he must change that decision during the debate. He would not be sufficiently impartial. More importantly, by flagging to his paired MP which way he would finally vote, that is clearly intended to influence that MP’s deliberative vote on that particular question. It is not a generic vote.

Secondly, there is a (weaker) argument that this is presuming the existence of two major parties but the Constitution presumes no such thing. Therefore, perhaps even a generic pairing arrangement which has “has a fixed operation irrespective of any particular vote” could be seen to influence every single vote in favour of a two party system. As we have seen, a strict two-party lower House in not a certainty. Personally, I don’t think its the best argument, but it is very interesting stuff.


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