Apr 23, 2012

There’s no constitutional provision for Slipper standing down. So what now?

There is no provision for "standing aside" in the constitution. The Peter Slipper scandal takes parliament into uncharted waters, writes constitutional expert Peter Black.

There is no provision for "standing aside" in the constitution. But it can't be assumed standing aside means Peter Slipper has resigned as Speaker, and constitutionally he must still be considered to be the Speaker. As such, he surely cannot be entitled to sit on the backbench and vote on matters before the House of Representatives. (The only alternative here would be if "standing aside" meant he does not preside during debate but that he resumes the chair during a vote, allowing him to exercise the casting vote in the government's favour. But that would seem to be a farcical situation that surely could not be countenanced by the government or the opposition.) The House of Representatives standing orders support this conclusion as they operate on the assumption  the speaker will simply not be present in the House when the acting speaker or deputies are. Standing order 3(d) provides:
"The power to exercise a casting vote (standing order 135) is reserved for the Speaker, Acting Speaker, Deputy Speaker or Second Deputy Speaker."
This does mean, of course, if deputy speaker Anna Burke is acting, the casting vote will be exercised in the government's favour. It's worth noting the House of Representatives Practice (5th edition) observes that speakers have spoken in the past but only on bills that particularly affect parliamentary administration (see page 176), and in the days when they had committee of the whole with a chair of committees in the chair, when some speakers have voted in committee (see page 185).  Both of these situations are quite different from the situation of having a speaker who has decided to "stand aside". I think it would be totally inconsistent with the position and office of the speaker to allow Slipper to simply return to the backbench and speak and vote on all matters. Indeed, such a situation would make a mockery of the office. It seems to me Slipper has to stand aside from all business before the House of Representatives. Of course, if Slipper decided to formally resign as speaker, it would be a very different situation and he would be entitled to sit on the backbench and vote on matters before the House. What this means for the government is that there will effectively be 149 members of Parliament able to participate in debate and votes. Fortunately, Parliament is now not sitting until Tuesday, May 8. Which gives everyone a few weeks to resolve the constitutional and political issues surrounding this situation. *This article was originally published at Peter Black's blog Freedom To Differ

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2 thoughts on “There’s no constitutional provision for Slipper standing down. So what now?

  1. Suzanne Blake

    Maybe he knows more is to come.

    Precendent been set now

  2. Tom McLoughlin

    Ha ha, that’s great work. An academic lawyer writes a whole screed without once mentioning the presumption of innocence which is, you know, sort of a pretty big principle of law. Even Rumpole knew about that one. Sure it’s not a principle of constitutional law, but hey I thought you might at least acknowledge it’s mere allegations, the complainant is no shrinking violet, and these cab charge issues look particularly trivial. Like if there is an error, just reimburse them? Especially if we are getting into areas of discretion and interpretation, less an ironclad precedent.

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