Section 40 and the Speaker’s Vote

The debate about the Speaker’s voting practice in the House of Representatives has received legal attention by the Commonwealth Solicitor-General, academic and other comments on the Speaker’s vote and section 40 of the Commonwealth of Australia Constitution. This article examines the provision to assess the extent to which section 40 provides the framework for the Speaker’s vote.

Voting in the House of Representatives

Voting in the House of Representatives is intended under section 40 to resolve questions arising in the House of Representatives. These questions are resolved by way of being determined by a majority of votes “other than the vote of the Speaker.” Section 40 then proceeds to deal with the Speaker’s vote in a second sentence:

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

First, the vote taken in the House of Representatives must be equal in number. Where the numbers are not equal then section 40 says that the Speaker “shall not vote”. Where the votes in number are equal then the second part of the second sentence of section 40 following the comma operates to provide for the Speaker to vote but only in the context of a casting vote. This vote is intended to break the deadlock in the voting on the matter in the House of Representatives only.

Pairing Speaker’s vote

The debate about pairing the Speaker’s vote is not a matter dealt with by section 40. This is a matter outside the operation of section 40. Section 40 does not limit the processes of the House of Representatives in its voting actions but merely provides how questions are determined and the casting vote of the Speaker. But section 40 does limit the Speaker’s casting vote.

Pairing occurs where the Speaker’s vote is in effect balanced exactly by an opposition vote. In another way of expressing the situation the Speaker’s vote is cancelled by a member’s opposition vote. Pairing is not dealt with by section 40 so a precise expression of “pairing” is not possible and it can have many meanings and expressions as the number of persons talking about it. But pairing of the Speaker’s vote has implications that can conflict with the requirements of section 40.

While section 40 does not limit the scope of actions taken in the House of Representatives to deal with voting issues to determine questions, it does provide parameters for the Speaker’s vote. In dealing with questions arising in the House of Representatives the Speaker’s vote does not operate unless and until the number of votes are equal. Where the votes are not equal the question is determined by a majority of votes. The requirement for the Speaker’s vote is not required at this point. However, pairing the Speaker’s vote could be viewed as operating at this time in the deliberative process of the voting process to arrive at a majority vote on the question. If this is the intention of the Speaker’s vote pairing then section 40 does not allow this action as at this time the Speaker’s vote is not called for under section 40. The Speaker does not vote. By pairing the Speaker’s vote there is an implication that there is a need for the vote to be cancelled by a member’s opposing vote. In the case of a majority vote there is no need for a member’s opposing vote to be cancelled as the Speaker does not vote at this stage under section 40.

So the notion of a Speaker’s vote has no relevance for section 40. The Speaker’s vote is a casting vote only.

Agreement between the parties for Speaker’s vote pairing

An agreement made between the parties containing clauses that are contrary to the Constitution is void to the extent of that inconsistency. If the agreement depends on the Speaker’s vote pairing then the agreement is void. If only a provision of the agreement deals with the Speaker’s vote pairing then that provision is void.

In the current balance of members in the House of Representatives of the major parties raised a question about an independent member holding the office of Speaker of the House of Representatives. Section 35 requires a member to be voted the Speaker. There is not qualification other than being a member of the House of Representatives being elected Speaker. So an independent member could be elected Speaker by the members of the House of Representatives. If an independent member is elected Speaker then the issue of Speaker’s vote pairing is not relevant. Section 40 operates to give the Speaker a casting vote only. The independent member being elected Speaker cannot change the requirements of section 40 to suit an agreement obtained with the major parties for parliamentary reform. Irrespective of the issues negotiated between members of the House of Representatives for parliamentary reform the agreement cannot override the Constitution. Section 40 provisions remain unless otherwise determined by section 128 or as otherwise determined by the High Court.

This is an occasion where the High Court’s opinion would be helpful. But the High Court does not provide advisory opinions. So far only the Solicitor-General has given official advice and only reported anecdotes have been disclosed. It would be helpful if this advice is published as the issue is of public importance.

Ongoing debate about Australian’s knowledge of the Commonwealth of Australia Constitution could only be assisted by advices and legal opinions being published. The media is providing this service but those providing advisory legal opinions should as a matter of course make them available publicly. As the Solicitor-General is technically part of the Executive Government then the Freedom of Information Act should operate. However, the Act contains provisions to negate such applications for information to frustrate attempts to elicit the Solicitor-General’s advice.

 

 

© 2010 Ian Tunstall
Email tunstall@pnc.com.au 
Web www.iantunstall.com