The Federal Government has today (23 September) released legal advice provided by the Commonwealth Solicitor-General stating that the proposed pairing arrangements for the speaker are allowed under the constitution.
Attorney-General Robert McClelland sought the advice of Solicitor-General Stephen Gageler SC following on-going disagreement between the Government and the Opposition as to which member will fulfil the role of speaker, before Parliament meets again this Tuesday.
Following the election on 21 August 2010, Labor, the Coalition and independent members of the House of Representatives signed an agreement called the "Agreement for a Better Parliament: Parliamentary Reform", which contained changes relating to the role of the speaker and pairing arrangements.
According to the advice of Gageler, there are no constitutional impediments to the pairing arrangement between the speaker of the House of Representatives and another member from an opposing political party, subject to certain provisos.
Those provisos are that the pairing with another member must be on a voluntary basis and that the arrangement does not give the speaker a deliberative vote nor deprive the speaker of a casting vote.
Under section 40 of the constitution "questions arising in the House of Representatives shall be determined by a majority of votes other than that of the speaker. The speaker shall not vote unless the numbers are equal and then he shall have a casting vote".
But the Opposition disagrees and has argued that the proposed changes are unconstitutional.
According to ABC News, Shadow Attorney-General George Brandis has said the changes to the speaker's role, agreed to by both major parties and the independents, are unconstitutional.
In his advice to opposition leader Tony Abbott, Senator Brandis said that pairing arrangements cannot be extended to the speaker and to do so, would in effect be to treat the speaker's casting vote as if it were a deliberative vote which is in violation of section 40.
Opposition treasury spokesperson Joe Hockey told ABC News that it is the Government's job to come up with a speaker. "I think it's rather cowardly for Julia Gillard not to nominate one of her own for speaker," Hockey said.