The Constitution’s a bit of a problem for Oakeshott

Judging by this afternoon’s headlines, PM Gillard may be taking seriously Independent Rob Oakeshott’s bid to be appointed Speaker of the House of Representatives.  I tend to agree with Dolly Downer’s observation that Oakeshott just doesn’t have the maturity or parliamentary experience to be Speaker, and that having current Speaker Harry Jenkins continue in the job would be a much better choice.

However, the Commonwealth Constitution might ultimately stymie Oakeshott’s ambitions to have his cake and eat it too by achieving the salary, perks and prestige of Speaker while still being able to participate as an ordinary MHR in business on the floor of Parliament.

Eminent constitutional law academic George Williams has opined that there are no constitutional barriers to the possible appointment of Oakeshott as Speaker. While that is certainly true in the narrow sense, I’m not at all sure that Oakeshott’s reported ambition to also participate in ordinary business of the House would be free from constitutional difficulty, even though such arrangements are not unheard of at State and Territory level.

Commonwealth Constitution s 35 provides for the election and removal/resignation of the Speaker while s 36 provides for the choosing of an acting Speaker in the Speaker’s ABSENCE:

Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

As far as I can see that provision has not been judicially considered but it presumably means absence from the House.  That is the sort of situation where an acting Speaker typically takes the chair.  But what if the Speaker ISN’T absent from the House but rather wishes to take part in business on the floor as Oakeshott apparently wants to do?  Can an acting Speaker take the chair in that situation and allow Oakeshott to participate in debate and vote on questions he thinks are important or relevant to his constituents?  If the answer is no (as I suspect would be the correct interpretation)11. KP: The only argument I can conceive that would allow Oakeshott to behave as he wishes in Parliament would be if Constitution s 36 is interpreted as not being intended as an exhaustive statement of the circumstances where an acting Speaker may take the chair.  However that seems a rather strained interpretation. [], then  s 40 clearly consigns the Speaker to a casting vote only:

Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

George Williams cited the Speaker (Presiding Officer) of the ACT Legislative Assembly as an example of an Independent Speaker who also became involved in business on the floor of that House.  However the example may not be apposite in that the Australian Capital Territory (Self-Government) Act 1988 contains no equivalent to Commonwealth Constitution s 40.  Indeed s 18 of the former Act provides for all Members including the Presiding Officer/Speaker to have a deliberative vote with any question being lost in the event of equality of votes.

If Oakeshott is constitutionally unable both to act as Speaker and also be actively involved in parliamentary business and vote on the floor of the House when he chooses, then I suspect he would likely lose his current enthusiasm for the role.

PS George Williams has advised me that he agrees with the above analysis, although that doesn’t seem to completely square with his remarks as reported by the ABC.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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13 Responses to The Constitution’s a bit of a problem for Oakeshott

  1. Alan says:

    If you look at Australian House of Representatives Practice you’ll find that speakers have participated in debate in the past. Speaker Rosevear ruled against it in 1947, but Rosevear also had a famous war with the government of the day over his opinion that assistant ministers were unconstitutional. Clearly, at least the Rosevear opinion on assistant ministers is now dead.

    S40 does not address participation in debate. It addresses voting.

  2. Ken Parish says:

    Thanks Alan

    Yes I should have made it crystal clear. I’m talking mostly about Oakeshott’s ability to cast a deliberative vote while he is Speaker. On a narrow view he couldn’t even participate in debate. As I said, that would be the case if you interpret s36 as containing an exhaustive statement of the circumstances in which an acting Speaker may take the chair. Your link to Reps Practice is valuable in that respect in that it indicates that Parliament itself has tended not to take the narrowest view but HAS taken a significantly narrower view than Oakeshott seems to want (i.e. to participate in any debates he regards as important to him or his constituents).

    However even the fact that Parliament itself has sometimes accepted that a Speaker can take part in debate (generally only on questions directly affecting the Speaker’s role and functions) would not prevent a person from challenging the constitutional validity of parliamentary proceedings where the Speaker participated in substantive debate. While the High Court has generally taken a very conservative view of its function in relation to Parliament’s powers, privileges etc, the Court HAS indicated that it can and will rule on the constitutional boundaries of Parliament’s powers and privileges (e.g. Egan v Willis). If a Speaker did take part in a substantive debate extending beyond the Speaker’s role and functions into matters where citizen’s substantive rights and interests are affected, an aggrieved citizen might well challenge the validity of proceedings and the High Court would have to rule on whether it could or should entertain such a challenge. As I commented in a sidebar/footnote, I think the conclusion that the Speaker can even participate in debate (let alone cast a deliberative vote) is at least arguable if not a strained interpretation of s 36.

    However on just about any reasonable meaning of s40 he certainly can’t cast a deliberative vote. “Speaker” is a specific office created by the Constitution and doesn’t mean, for s 40 purposes, the person who happens to be sitting in the chair while the holder of that office participates in business on the floor of the House. One would strongly suspect that if Oakeshott is told that he can express his opinion (participate in debate) at least to some extent but cannot make it count by casting a deliberative vote then he would be likely to decide that becoming Speaker is not a good idea.

  3. Ken Parish says:

    I should also note that it appears nearly all of the infrequent occasions when a Speaker has participated in debate (but not voted) have been from the Speaker’s chair i.e. the Speaker has continued to preside over the House. That procedure avoids the problem with the interpretation of Constitution s 36 which I discuss in the primary post. Moreover it is an approach which would if used sparingly allow the Speaker to discharge at least to a limited extent some of his ordinary duties as a Member of Parliament by advocating the interests of his constituents where they are seriously and immediately affected, while preventing him from actually voting (except in the event of a tie) to preserve the neutrality of the chair.

    The neutrality of the Speaker is a critical aspect of the Westminster system on which ours is based. In both the UK and Australia the Speaker effectively steps aside from day-to-day partisan politics, does not attend party caucus meetings etc. In the UK at least until quite recently a respected Speaker would sometimes remain in office even after his party lost office. That hasn’t happened in Australia to the best of my knowledge, nor has the Speaker’s neutrality been as carefully observed.

    Sections 35, 36 and 40 of the Commonwealth Constitution reflect and to an extent codify this principle of Speakerly neutrality and, while a limited amount of flexibility may be consistent with that principle (as both House of Commons and Reps practice illustrate), the principle cannot simply be ignored and trashed as Gillard appears to be contemplating to indulge the whims of a spoiled Independent whose support she needs. The problem with that is that she may by so doing force the High Court to make a ruling on the meaning of these sections where a more prudent PM would respect the flexible but real boundaries of unwritten principles on which the Westminster system depends. I completely agree with these comments by the Coalition’s Christopher Pyne:

    But the manager of opposition business in the lower house, Christopher Pyne, says the independent’s vote isn’t able to be counted when he is in the chair during divisions.

    “The Speaker does not have a deliberative vote; under the constitution the Speaker only has a casting vote,” he told ABC Radio.

    This month, Labor, the Coalition and Mr Oakeshott agreed to a series of parliamentary reforms, including “pairing” the Speaker for votes – meaning whichever party the Speaker belonged to would not lose a vote when divisions were called.

    But Mr Pyne said pairing was only relevant for the Deputy Speaker and others who occupied the chair.

    “The issue of pairing only comes up with the Deputy Speaker and other members of the Speaker’s panel, all of whom have a deliberative vote,” he said.

    “There is no other possible reading of the agreement if you read it in conjunction with the constitution of the country.”

    Mr Pyne made no apologies for some members of Parliament potentially being confused about how pairing can work in tandem with the agreed parliamentary reforms.

    “I can’t help it if other members of Parliament are confused and don’t understand their constitution and the standing orders and the way Parliament has been arranged for 110 years.”

  4. pedro says:

    Oakeshott has admitted on the ABC (at least) that a pair for him is a defacto deliberative vote as he would tell which of the whips had to drop someone off. The effect of the parliamentary reform agreement as interpreted by Oakeshott is that an independent member becoming speaker leads to the trashing of the traditional (and constitutionally enshrined) concept of the independent speaker.

    I had thought that the purpose of the agreed pair was to maintain the balance between the major sides while keeping the independent role of the speaker as it tradionally has been.

  5. Ian Harris says:

    One should look at the arrangements Morris Iemma put in place for the Independent speaker in the NSW Parliament to see how they work and what was neogiated to ensure his electorate was not disadvantaged.

  6. Alan says:

    Just for the record, NSW has significantly different constitutional provisions on the speakership. Those derive from the minority government agreement in 1991 and this is probably the model that Oakeshott and Windsor would like.

    I don’t know that it would be easy for the speaker to engage in debate and still remain independent, although that model seems to work in the Senate.

  7. James Farrell says:

    I’m trying to figure out what exactly is at stake in regards to Oakeshott’s voting right as Speaker. Presumably the answers are out there somewhere, so forgive my laziness in posting my confusions here.

    If all members are present, and everyone adheres to the loyalties they are currently expressing, then no-confidence and supply motions would be passed 75-74, so that wouldn’t be a problem for Oakeshott or the Government. If a member on the Government side was missing, Oakeshott would have a casting vote: again, no problem.

    However, if two on the Government side were missing, the Coallition would prevail 74-73 — and presumably the Speaker wouldn’t have a casting vote. (The same applies if, say, Tony Windsor switches sides on some isue.) It’s in such cases that Oakshott’s ability to step out of the Speaker’s chair would matter, I guess. In that situatiuon, do we have no Speaker at all, or does someone else have to be appointed (from the Government ranks), and if so, don’t we still have the same problem? In any case, would a 74-74 vote mean defeat for a no-confidnce motion or supply bill?

    Then there’s the question of Government bills that Oakeshott actually wants to oppose. Too many permutations for my little brain.

  8. Geoff Honnor says:

    The most important point, surely, is that Oakeshott doesn’t need to be the Speaker. There’s nothing in the arrangements that have been put in place that require that he – or another independent – should preside over the House of Representatives. The last Parliament had a perfectly adequate Speaker in Harry Jenkins and I see no reason why he shouldn’t continue. Julia Gillard is presumably giving favourable consideration to Oakeshott’s pitch solely on the basis that it would lock in his support – so much for the new politics paradigm.

    In the absence of any compelling reason – or qualification – for his candidacy, the guy increasingly looks like a self-entitled chancer with more tickets on himself than the Acer Arena.

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  10. I think the reforms are the issue.

    The pairing of all MPs make it interesting as the Speaker is still an MP and would be entitled to a pair regardless of he is obligated to vote or not. There is also the appointment of a Deputy Speaker.

    The other issues are the pairing of absent members and finally the ability to vote if you are out of the house when a division is called.

    The current numbers game is not an issue if the speaker and his pair is from the major parties, but with an independent, then that pairing will change depending on the intention of the Speaker.

    It also means the numbers left are 148 which means either party can pass policy if they have the numerical advantage. But without the pairing for the speaker, the numbers of 149 makes the speakers casting vote unimportant.

    That is of course if the reform package gets in! Losing advantage is something neither major party will be up for.

    Do you know if the pair applies to a casting vote? Because it got to that, would the speaker cancel out a vote and the numbers will go to the party that had to pair.

    All trick issues.

    Personally I think this is a test of who folds first. The Coalition do not want to come off as being unfaithful in their word so they will hope Jenkins is nominated. They can even do it themselves.

    The 28th will be interesting methinks

    Ash

  11. Marion Barker says:

    The various snipings at the proposal for Oakeshott to be Speaker seem to have been those of the envious and shallow minded. The Speaker takes responsibility for a host of administrative responsibilities to do with the running of Parliament. The idea that Oakeshott is not one of the best qualified people to ensure these processes occur fairly and effectively could only be supported by those who are entrenched in the current, ineffective models that have led to widespread disillusionment with politics: The he-men tough guys who believe that only decades of petty bickering in Parliament qualify someone to take the position of Umpire in a match with more of the same.
    Their idea of extensive experience only seems likely to ensure that the position holders are mired in the traditional partisan politics that politics has been every increasingly sunk into over the last century. If anything’s going to get it out of that mode it would have been Oakeshott. A true Independent to be Speaker. All the bully boy supporters of party politics would be horrified, I’m sure. Whatever game playing absurdities will be undertaken to ensure there is no challenge to the status quo must happen.

    There are others who think differently from the seeming majority of this forum. I think Oakeshott’s got the qualifications that should be relevant. A non-party base from which he is genuinely prepared to consider the issues. A fresh and open readiness to call on people to rise above petty party politics. The Group Hug approach. There’s nothing wrong with hoping our politicians can behave in an adult fashion and have civil disagreements over what is best for Australia while trying to work through the important issues. If Oakeshott is not experienced enough to know this is unlikely to ever happen then I for one am hoping he never gets to have the necessary embittering experiences. Being blooded with cynicism shouldn’t be a qualification for a Speaker.

    Even the aspersions on Julia Gillard by Ken Parish and Geoff Honor seem petty. Why must Gillard be trying to placate a spoiled independent? Maybe she is understanding that having an Independent independent Speaker would assist a variety of Parliamentary Reforms take place. Maybe she thinks Oakeshott’s fairness, open mindedness and non-partisan position would enhance the processes of the Chamber. Maybe she just thinks he would do the job well. Why impute bad faith. Both to him and to her.

    Sections 35, 36 and 40 do not, in the end, provide a detailed guide to the Chamber’s procedings, and could sensibly be interpreted as simply providing that when the Speaker is absent from his or her position – whether they are absent from their position because they are absent from the Chamber or involved in the debate is not relevant to the fact – he or she is simply absent. Then, by section 36, someone else can be appointed to fulfil their necessary functions at the time – i.e. running the Chamber. So simple. So sensible. And section 40 is the same – no deliberative vote for the Speaker, but there is no ban on participating in debates.

    Oakeshott’s decision to withdraw from the debate is likely to make these issues redundant, but let’s hope that if anyone outside the well-established and well-protected norms ever raises his head above the ramparts again he doesn’t get it blown off by the others of us who remain cowering under those ramparts.

  12. Senexx says:

    Marion, how is an Independent spoiled when their vote or say rarely ever counts? That is backwards logic.

    What is the Constitutional situation with pairing the speaker when the speaker is not an Independent? Or does it remain the same?

  13. Marion Barker says:

    Senexx, I agree entirely that it is absurd and illogical to say Oakeshott is spoilt. I was in fact quoting others who had said this in order to highlight the flaws in the logic of such an accusation.
    There has been a long history of pairing the Speaker with another Member – usually the Deputy Speaker, who usually comes from the opposite side of politics. There is no established constitutional objection to this practice, other than in the self-serving ‘opinion’ from Senator Brandeis (isn’t it unethical to put oneself forward as able to give advice when one’s own self-interest is so transparent?).
    Having a true independent as Speaker would simply highlight the impact of that pairing. There need not have been any problem with this arrangement. But it seems the Coalition will stop at nothing, including a twisted revenge attack, when they lose a particular battle.
    Marion

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