Today’s Crikey Clarifier comes after a reader sent in the following request:

Could we please have your esteemed team of tame constitutional lawyers write us mere mortals a Crikey Clarifier on the speaker? I’ve read and re-read the Constitution several times, once even without falling asleep.

As far as I can discern the speaker has only three roles; presiding over the House by sitting in a big chair (silly wig optional), a casting vote if there is a tie, and receiving the resignations of members who have decided that the time is nigh for them to move on the traditional post-political life as a lobbyist, company director, consultant or enthusiastic amateur diplomat (or in some cases all of the above).

There is currently a storm brewing in Canberra over who will be elected speaker, which side of parliament they will come from and whether their casting vote will be paired with the deputy speaker. Crikey went to the office of the Clerk of the House of Representatives and Queensland University of Technology constitutional law expert Peter Black for answers:

What is the role of the speaker?

According to House of Representatives Practice, the speaker’s powers, functions and duties may be categorised as “constitutional, traditional and ceremonial, statutory, procedural and administrative”.

“The role of the speaker in the House is to enforce the standing orders, to maintain order and to preside over proceedings,” the Clerk’s office told Crikey. “The Speaker has power to interpret and adjudicate on the standing orders and the power to deal with any disorder in the house.”

What does the Constitution say?

Under the Constitution, the Speaker is charged with the following tasks:

  • they are responsible for the issue of a writ for the election of a new member whenever a vacancy occurs in the House of Representatives between general elections;
  • at the commencement of a new parliament the speaker is commissioned by the governor-general to administer the oath or affirmation of allegiance to any member not present at the opening of parliament and to new members elected during the course of a parliament;
  • if the number of votes on a question before the House is equal, he or she exercises a casting vote;
  • a member who wishes to resign his or her place does so in writing addressed to the speaker.

Does the speaker get to vote on legislation?

According to section 40 of the Constitution, the Speaker does not vote unless there is a tie and then they have a casting vote. In the current parliament, if the cross-bench votes stay as they are (keep in mind cross-bench MPs have only guaranteed to vote with the ALP on supply and no-confidence motions), that will leave the ALP with 75 votes and the Coalition with 74.

The Speaker shall not vote unless the numbers are equal, and then
he shall have a casting votThe Speaker shall not vote unless the numbers are equal, and then

What happens when the speaker is absent? Who fills in?

“Routinely, in the last parliament there was a roster for a number of members to serve and do duty in the chair,” the Clerk’s office confirms. “It’s not just the speaker and the deputy speaker, it includes a second deputy and a members of the speaker’s panel, which acts on a rotation basis.”

How does the role of a deputy speaker work? Do they have a vote?

The deputy speaker votes on legislation unless they are in the speaker’s chair. Then it’s the same situation as the speaker, in that they only have a casting vote. Furthermore, once a member has been elected to the speakership they can’t rejoin the benches and let the deputy speaker take over. “If the speaker is not in the chair, they’re not in the chamber,” the Clerk’s office told Crikey.

How does the ‘pairing’ of votes work? Are they mentioned in the Constitution?

‘Pairing’ arrangements are not mentioned in the Constitution and they are not mentioned in the standing orders, they are simply an agreement between the parties. “The convention is that it tends to be if the minister or member is unable to attend parliament then someone from the other side of parliament would abstain from the vote,” Peter Black told Crikey.

The parliamentary reforms proposed by the independents recently recommended the ‘pairing’ of the speaker and deputy speaker. How would that work? Who would get the casting vote?

The casting vote can only be exercised by whoever is in the speaker’s chair. If there was some understanding about ‘pairing’ the speaker and deputy speaker, then the deputy speaker would not be able to vote on any legislation. This would offer an advantage to whichever party held the speakership, as it would remove a vote from the other side.

Why is the opposition calling the ‘pairing’ of the speaker and deputy speaker “constitutionally unsound”?

“There are two layers to that, the first is because the practice that evolved between the parties with respect to ‘pairing’ had never been contained in legislation or standing orders it was never subject to a constitutional challenge,” Black says. “The other is that the ‘pairing’ arrangement with respect to the speaker was only ever an understanding and an agreement for political purposes. It is obviously no longer politically expedient for Tony Abbott to agree with ‘pairing’ the speaker.

“Also, I can see that if they were going to go down the path of trying to legislate or enshrine ‘pairing’ into standing orders, that does raise legitimate constitutional questions.”

Here’s a hypothetical for you — assuming the deputy speaker comes from the opposition and their vote is not ‘paired’ with the speaker. If the cross-benches stay where they are and the speaker is elected from the government then the numbers on the floor will be 75-74. But if the deputy speaker is in the chair then the numbers become 75-73, offering legislative breathing space to the government. Could you see a situation where the government brings on a vote when the deputy speaker is sitting?

“The government whip will decide when to bring matters to the floor of parliament,” Black says. “I can see that in a finely balanced parliament — and in a parliament when an opposition wants to be as obstructionist as possible — then that could be a method of getting legislation through.

“I do think if they start doing that then they lose the moral high ground that they have claimed in the argument so far. But when push comes to shove, getting important legislation through parliament is more important than contributing to the new political paradigm.”