The potential selection of independent MP Rob Oakeshott as speaker in the new parliament raises significant issues under the constitution, according to a legal expert from The Australian National University (ANU).
Professor Donald Rothwell from ANU's College of Law said that although there is nothing in the constitution to prevent Oakeshott becoming speaker, it would require the good will of both sides of parliament to make it work.
"Section 40 of the constitution makes clear that the speaker does not have a deliberative vote unless the 'numbers are equal', and then the speaker 'shall have a casting vote'," Rothwell explained.
"Therefore, under the constitution and consistent with past practice the speaker would not have a vote in the normal course of parliamentary business. However, in a parliament where the Gillard government has a majority of two - which would then be reduced to a majority of one if the vote of the speaker was removed - then it has to be anticipated that from time to time the speaker will be called upon to make a casting vote."
Rothwell noted the September "Agreement for a Better Parliament", which makes clear that the speaker is to be independent of the Government.
"But the agreement also implicitly recognises the significance of removing the speaker's vote and the destabilising impact that this may have upon the numbers in the House of Representatives," he said.
"Accordingly, the agreement seeks to neutralise this impact by pairing the vote of the speaker with that of the deputy speaker.
There is nothing constitutionally which prohibits the arrangement, according to Rothwell, however whether politically the agreement would be honoured depends upon the good will of the members of the House of Representatives to make the new parliament work.
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