The Australian Constitution anticipates that sometimes ties will happen, and when they do the Speaker will break the vote - and that is the designated role of the position.
As the bible of the British Parliament, Erskine May, says:
‘If the numbers in a division are equal…the Speaker, who otherwise never votes, must give the casting voice. In performance of this duty, he is at liberty to vote like any other member, according to his conscience, without assigning a reason: but, in order to avoid the least imputation upon his impartiality, it is usual for him, where practicable, to vote in such a manner as not to make the reason of the House final and to explain his reasons….’
As they did in NSW, if you want to change the voting power of the Speaker you really do have to change the Constitution.
The NSW Constitution only gave the Speaker only had a casting vote until 2007.
To accommodate the wish of an Independent Member of Parliament encouraged by the NSW ALP to become Speaker to participate in debates and vote when an issue important to his electorate came up (much like what Rob Oakeshott appeared to want to do federally) the law was changed.
Now, so long as the Speaker is not presiding, he can participate in debate and vote.
However, the Constitution had to change to allow this to happen.
As the Solicitor-General’s advice makes clear, the agreement of parliamentary reform sealed with a ‘man hug’ during the discussions to form a government can be honoured - it is quite possible for a party to organise for one of its own to abstain to ‘match’ the vote of the otherwise non-voting speaker if they want, thus creating a constitutional ‘work around’.
That said, the question of whether ‘pairing’ the Speaker is a good idea remains.
For better or worse, Australians returned an equally balanced parliament. Sometimes, ties will happen. And the Speaker will have to make a casting vote.
Had the Liberals stuck to the ‘pairing agreement’ they would have explain to the millions of people who voted for it that where otherwise the vote in the House would be tied, in the name of ‘stability’ one of its members abstained from voting - thus allowing through something contrary to its constituent’s interests like a mining tax or carbon tax or any other controversial measure that will invariably come up - in a circumstance where otherwise, if custom was followed by the Speaker, the matter would not have passed but rather stayed in the House for further consideration.
The ALP would of course have been in the same conundrum if they were in Opposition.
The result of the election will therefore be properly reflected in the votes of the House.
Strap in for a wild three years.