But on Mr Brandis's legal opinion, the shadow cabinet resolved yesterday not to pair the speaker. If this position remains unchanged, the government would have to reappoint the Labor incumbent, Harry Jenkins, as the non-voting speaker and have its 76-74 majority reduced to 75-74.
Consequently, only one MP would have to change sides for the government to lose in the House on a motion or piece of legislation, creating an even more volatile Parliament and unstable minority government.
The shadow cabinet made its decision before Mr Abbott received the Solicitor-General's advice. ''Our position is we won't agree to pair the speaker,'' a Coalition source said.
The 20-page advice from the Solicitor-General cleared the way for the speaker to be paired by way of informal or voluntary agreement between the government and opposition.
''In my opinion, no arrangement for the 'pairing' of another member of the House … with the speaker could give to the speaker a deliberative vote, nor could it deprive the speaker of a casting vote,'' the advice says.
''Adherence to the arrangement by the other member could only be voluntary.
''If those constraints are observed, I consider there to be no necessary constitutional impediment to a pairing arrangement between the speaker … and another member and another member from an opposing political party if that arrangement has a fixed operation irrespective of any particular vote.''
Senator Brandis's opinion states that appointing a non-voting opposition deputy speaker to compensate for the speaker not voting would violate Section 40 and be subject to a High Court challenge.
An informal arrangement, as approved by the Solicitor-General, would still be a violation, he said.
Senator Brandis later told the Herald the Coalition was unlikely to be swayed by the Solicitor-General's advice. Senator Brandis said if pairing the speaker was unlawful if enforced by a motion or change to the standing orders, then ''no self-respecting lawyer'' would advocate an informal agreement to circumvent this concern.
The manager of opposition business, Christopher Pyne, told the Herald on Tuesday the Coalition would be guided by the Solicitor-General's advice.
A senior government source warned that unless the Coalition agreed to honour the deal it made to pair the speaker, there would be a campaign of payback.
(Bolding mine.)
And this - THIS is a major concern.
The Gillard government would be placed in a slightly more precarious position if Oakeshott cannot have his vote and eat it (be Speaker AND have a casting vote), so my feeling is (and I may be wrong; feel free to convince me) that they will throw whatever mud they can at the Opposition and seek by any means possible - EVEN IF IT MEANS VIOLATING THE CONSTITUTION - to achieve the goal of an Oakeshott-fed Speaker position engorged with power and heady voteability.
If I am wrong about my perception of this, I will readily apologise.
This is something I had not considered - but it is of the utmost significance.
As I see it, to 'pair' the speaker with a 'balancing' voting member would require that member - who is entitled to have a deliberative vote
under the constitution - to forgo that right. If such a member were to voluntarily agree and subsequently find they are driven to exercise their right to vote, then there are NO formal grounds to deny them that right. Under the constitution, they are guaranteed that right and no form of constraint on voting nor penalty for doing so would be enforceable, nor could be brought against them without a constitutional legal assault being fired back in no uncertain terms. Any form of motion from members - or anywhere - would clearly be right in the middle of this 'no go zone'.
If we want to look at changes to the Constitution to serve political expediency, then I have EXTREME issues with that idea - and I think a great many Australians would, too.
HOWEVER - I cannot see how 'pairing' the speaker will really have any functional benefit - which is why its been touted in the first place.
There are several scenarios that I have mulled over, but I will only present two to demonstrate how effectively useless the whole idea is....
(1) Let us say that the speaker is paired - and we have a vote which results in a 74 - 74 tie. We have two members who have not voted. If we allow
both to then vote, then (in all likelihood) we will end up with a 75 - 75 tie. Not very helpful. Also, we will have violated the constitution by allowing the speaker to give their 'casting' vote before all members who are entitled to make a deliberative vote have done so. It also makes an absolute mockery of the concept of a casting vote being 'the decider' in an otherwise tied-up situation. That is an absurdity.
This could possibly be addressed by allowing the 'paired' member to have their vote before the speaker is allowed to. This will take the heat out of the unconstitutional argument (but it's still an issue, in principle). Such an action will give the 'paired' member a form of casting vote. But this will have the identical result if they had voted as a regular member. So why even bother with this dangerous arrangement?
(2) Let us say that the speaker is paired - and we have a vote which, through an abstention, produces a 74 - 73 result, where the 74 is from the speaker's political alliance. That result is clear. If the 'paired' member steps up to cast their vote (as would be the case in normal parliamentary procedure) the vote would tie at 74 all. The speaker then makes their casting vote to resolve the deadlock to 75 - 74. So the outcome would not change. So, again, why even bother?
As I see it, the bottom line is pure politics - it's a game of perceptions for benefit to the politicians from the voters.
The 'pairing' idea is a great marketing ploy - but it just does
absolutely NOTHING in the wider scheme of running this country - other than running foul of the Australian Constitution.
These facts SHOULD be made clear and the issue SHOULD be stepped away from, from both sides of politics. One side has, but the other won't - not because it's a good idea (because, in practice, it's a very bad one) but because they can score political points.
Maybe she should have said.
"Parliamentarians & all Australians should ask not 'is this in my party's interest?' but 'is this in my nation's interest?'"
Couldn't have said it better.
