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.
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)((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. ~ KP)), 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.