Pairing the Speaker

The debate on whether the Speaker of the House of Representatives should be ‘paired’ to compensate for the fact that the Speaker only has a casting vote continues appears to have been settled.

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.

Why is crossing the floor such a novelty?

Senator Judith Troeth recently crossed the floor to vote with the Government in support of their plan to stop charging asylum seekers and immigration detainees for their mandatory detention.

Immigration Minister Chris Evans lauded her for her decision.

On the same day, three ALP MPs endorsed a petition calling on the government to retain the prohibition on parallel importation of books.

It will be interesting to see if they cross the floor should the Government decide to remove the ban.

It is not often that ALP members cross the floor. This is because party rules prevent it.

In particular, Rule 5 says (in part):

d. The Federal Parliamentary Labor Party shall have authority in properly constituted Caucus meetings to make decisions directed towards establishing the collective attitude of the Parliamentary Party to any question or matter in the Federal Parliament, subject to:

i. at all times taking such action which may be possible to implement the Party's Platform and Conference decisions;

ii.on questions or matters which are not subject to National Platform or Conference or Executive decisions, the majority decision of Caucus being binding upon all members in the parliament; and

iii. no attitude being expressed which is contrary to the provisions of the Party Platform or any other decision of National Conference or National Executive

The existence of this rule in particular weakens the role of all Australian parliaments.

In Westminster, party whips divide votes into three categories.

In very trite terms:

a ‘one line whip' tells members what the party line is, however, there is a degree of discretion as to whether the line is followed;

a ‘two line whip’ is a debate in which a member is expected to vote in according to the party line, unless there is a strong conscientious objection; and

a ‘three line whip’ is a debate where the member should simply follow the party line.

However, all that said, there are many circumstances in which members of the House of Commons have 'rebelled' from the Whip and voted against party, notwithstanding the declaration of a three line whip.

Ask yourself: how often do you see an ALP member 'cross the floor' in Parliament? The answer is 'seldom' - and when they do, they are usually disciplined.

In that case, it is hardly surprising that the alternative political grouping becomes as rigidly controlled - if they weren’t, common sense tells you they would never win a parliamentary vote.

There are many circumstances where party discipline means that MPs are voting for a proposal against their better judgement.

The best way to ensure that legislation is appropriate is to ensure that there is a properly functioning parliament with members making decisions according to their conscience and not their party whip.

Matters may very well be assisted if the ALP abolished its rule.

Unfixing Parliamentary Terms

John Della Bosca has had a fall.

The Sydney Morning Herald has made a call: Nathan Rees should go to the Governor and just go to the polls.

Many hanker for an early election. However, the presence of a fixed four year terms acts as a barrier.

The concept was introduced into NSW following an agreement between Nick Greiner and the independent members of Legislative Assembly following the 1991 election that produced a hung parliament.

The rationale is explained by Clover Moore, one of the independents who negotiated the agreement, where she says on her website:

My work to reform Parliament led to the current four year fixed terms of State Government, reducing the number of elections and the political manipulation of their timing.

The then government acknowledged the idea was one of a number of:

….changes to the framework of Government in New South Wales to respect a strong Parliament and to ensure the accountability of Executive Government to the Parliament are necessary.

The fixed term concept is now washing through the other Australian jurisdictions.

It strikes me the idea works from a wrong premise.

It presumes Australian Parliaments are strong. They are in fact quite weak. Party discipline is so strong that independent action by MPs is almost unheard of. What the Executive wants, the Executive gets.

For all intents and purposes, under NSW law a successful no confidence motion is necessary to bring about an election.

Short of a schism in the ALP, if the NSW Government really decided to bring an election some government members would have to tactically abstain from the vote.

This could be called the ‘Bundestag solution’.

Germany has the same sort of fixed term provisions as NSW.

In 2005, members of the German government abstained from voting in a confidence motion so that an election could be called following increased dissatisfaction with, and instability within, a coalition of the Social Democrats and the Greens.

However, query whether that would look fair dinkum to either the electorate or (for that matter) the Governor.

After all, the intention of fixed four year terms is to reduce the number of elections and the political manipulation of their timing.

And so, it would appear the NSW Government will be with us until 2011.

Fixed four year terms for a parliament weakened by rigid party discipline is poor public policy.

We do not believe in fixed terms.

There are some occasions where the capacity to call an election is desirable. For instance there could an issue that is so big that it is proper to call an election to decide on whether the policy is a good idea – a ‘back me or sack me’ election.

Alternatively, there could be civil unrest of some nature (like a series of strikes) such that it is appropriate to call a ‘who runs the country’ election.

However, you can’t really identify whether an issue is one of these sorts of issues in advance. Everything turns on the political context of the day.

That is not to deny that there is a legitimate expectation that a government will usually run to term, or that there will be parliamentary leaders who will go to the electorate for cynical political reasons.

However, we think the electorate is smarter than many in the political classes think. Anything that is particularly cynical will be punished. The last Western Australian election is probably case in point.

And in any regard, we don’t think that an exercise in democracy is a bad idea at any time.

We also think that 4 years is too long between elections.

It is probably right that 4 years is the common period for a parliament or elected official.

However, demand in many of these jurisdictions there is a capacity to easily call elections should circumstances arise.

In other circumstances, the electoral system is designed to ensure that the system’s overall electoral mandate remains fresh.

For example, Barack Obama is President of the United States for four years. However, the House of Representatives is elected for two years. One-third of the Senate is elected at the same time as the House of Representatives.

It therefore means that whatever Obama does will receive an electoral test every two years, not every four. Any policy overreach can be punished; proper policy rewarded.

If there is to be fixed terms, then a fixed three year term is probably appropriate.

However, we have always supported the erstwhile Australian system of unfixed three year terms.

We have never accepted the argument that four year terms are necessary because it would be too hard for politicians to implement contentious yet necessary policy reforms because of fear of electoral consequences.

The microeconomic reforms generally described as national competition policy (and now the National Reform Agenda) have led to significant changes to the structure of Australian society – all achieved by governments of different persuasions within a political system with unfixed three year terms.

There is also a case for allowing the upper house to block supply.

The NSW Legislative Council has not had the capacity to block supply since 1933.

However, there may be a case to return this power to the upper house so as to force an unpopular government to an election.

Some will reject this idea because of a wish to avoid the controversy that arose in 1975 following the refusal of supply by the Senate that ultimately led that led to the downfall of the Whitlam Government.

That said, the 1975 election led to the Coalition to win a clear parliamentary majority – however, the controversy surrounding the decision to block supply caused will ensure that an upper house would need to think long and hard before it decided to deny the Executive its appropriation.

No-one would want to have a political environment such as that currently operating in NSW.

Yet this is the unintended consequence of a policy design thought to be a good idea by participants in a hung parliament of nearly 20 years ago.

The policy experiment has failed. It must be reformed. We should go back to the future with unfixed three year elections.