Political Pairing

James Powell’s argument essentially relies on his proposition that, “The idea of pairing the speaker implies that he or she has a vote to neutralize” ( FinReview.“Kafkaesque constitutional opinion” September 24). This sounds good but is illogical. Just because in the customary pairing both parties have votes to neutralize, it doesn’t follow that all pairings imply that there is a vote to neutralize. Pairing might, on first sight, imply that the Speaker has a vote to neutralize, but when you delve further you discover that the implication in incorrect.
The fact is the Speaker does not have a vote, but would have had a vote if he or she had not become the Speaker. That is, the person who eventually becomes the Speaker had a vote to neutralize, before they became Speaker. It is the permanent negation of this vote that the pairing agreement seeks to neutralize, not a current right to vote that the Speaker has.
The reason why Powell and others talk of implications is because there used to be a vote that related to the person of the Speaker before they became the Speaker. But at no time is Section 40 of the constitution breached by the giving to the Speaker of a right to vote. The pairing agreement relates to the loss of a member’s vote, not the right of the Speaker to vote.
The pairing agreement was made before both leaders knew who would win. The one who lost now wants to break the agreement to try and change the result, to win, to make himself leader.
The fact is that faced with impending hung parliament the parties came to a political agreement in the interests of equity and stability, that the party which did not supply the Speaker would offer the other half of a pair.
This pairing arrangement is not unconstitutional. Firstly, on a black-letter-law reading the agreement between the parties does not alter the Speaker’s constitutional position: “The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.” (Section 40).
Secondly, neither does an “in spirit” reading change the constitutional operation of the Speaker’s role by the proposed pairing agreement.
Powell confirms our general understanding that the fundamental reason for Section 40 is to afford the Speaker a higher degree of independence, thereby allowing him the freedom to prosecute his duties equitably. However, by giving him the casting vote it does not seek to deny his essential nature as a political partisan. He is neutralized for the specific purpose of his role as speaker, but is not neutered as a politician. So the idea that he should not have a pair if both parties agree to it is wrong. He belongs to the Labor Party, he is a political person, the party is going to offer him as Speaker thereby losing a valuable vote. In the case of a hung parliament, and a minority government, it is fair and reasonable that a pairing arrangement such as this is put in place.
Having said that, there is nothing in the pairing agreement that would reduce the degree of independence that he would otherwise have under Section 40.
The constitution obviously does not prohibit political operations, including agreements, in the parliament. On the contrary, the rules of the constitution are there to encourage those very operations. The constitution is not an end in itself; the effective settlement of the nation’s political issues is the end that it seeks to foster.
There simply are no limitations to the making of political agreements, and nor should there be, as that is the political process envisaged. You could just as well argue that political parties and coalitions are unconstitutional, as they are not mentioned in the constitution, and they limit the voting freedom of the members involved, a freedom that could easily be implied.
The political agreement in this case had a compelling and legitimate reason, and was struck, like many other bipartisan agreements, in the interests of equity, political stability and functionality of the parliament.
In conclusion, the pairing agreement does not detract from the independence of the Speaker, is not unconstitutional, and would require more than the usual dose of judicial activism to make it so.
That being obvious, Tony Abbott is breaking the pairing agreement because he did not win government, not because of some spurious argument that it had constitutional implications. Let’s not forget that he did make the agreement in full knowledge of these issues, and he pledged his word. I think that it is an allowable assumption that if he had won he would be insisting on the execution of the agreement. Abbott either wants to frustrate the government and in so doing break the will of the independents, or he wants another election, because he didn’t win this one.
It is worth noting here that Abbott’s defeat couldn’t have been more complete, having been orchestrated by conservative men, formally of his own coalition, and because the coalition actually won the vote. There must have been a very strong reason for slamming the gate shut in his face. I think they sensed the feeling in the electorate that not many wanted this man as Prime Minister. He does not impress as any sort of great man or statesman for that matter. He comes across like one of those supercilious varsity thugs who are sent onto the field to injure the opposing team’s champion. Not prime ministerial material and in the light of this dishonourable breach of trust, we can clearly see why.