LABOR ANTI-CROSS RULE TO BE TESTED

This is one of those times where everyone, all of a sudden, thinks s/he's an expert on Constitutional Law.  We're talking, of course, about the Constitutional drama that is the pairing of the vote of the Speaker of the House of Reps.

While there is valid discussion about sections 40 and 50 of the Constitution of Australia Act 1900 of the Imperial Parliament, what is deafeningly silent  from much of the commentary is this very simple question: given that renegade Lynne 'independent' Rob Oakeshott must lose a deliberative vote, and must retain a casting vote, as speaker (just as any speaker must), why withdraw from the Speakership because of an inability to pair?

Follow this logic with us:

1. Oakeshott is part of the Labor/Greens rainbow government (as slim and as temporary that minority government may be).
2. As such, in accordance with the Australian conventions of our Westminster-based system, the nomination of Rob Oakeshott by the government would fall in line with the Speaker of the House of Reps being from the governing side.
3. His appointment (or anyone else's from the Rainbow Club) would then leave a 75-74 confidence and supply minority governance in favour of the Rainbows.
4. If Rudd or Gillard is overseas, or a member is sick or absent for some reason, or an MP decides to abstain (Obama style), then one can imagine that the vote would be tied at 74-74.
5. In such a case as this, the Speaker (Oakeshott), would get the casting vote. Oakeshott would more likely than not cast his vote in favour of the Rainbow by virtue of the Speaker's Constitutional powers, and carry the vote over the line for the Rainbow Alliance.
6. Even better for Oakeshott, apart from the pay rise, is that he gets to be the most important vote, most likely on several occasions! His 16 minutes and 50 seconds of fame will be dramatically extended.  It's a win-win situation.  One his ego may have rashly overlooked!

Of course, there are several other combinations that could play out, given that the lights in between Green and Red (namely Windsor and Wilkie) claim they have only committed to supply and confidence votes in support of the Traffic Light Coalition under limited circumstances.  However, because the Labor party has a strict rule that crossing the floor results in disendorsement from the party (or usually would - questionable now under slim majority circumstances), it means that even with a 1 seat majority after the speaker is chosen, it would effectively take 2 votes to defeat a traffic light Bill in the House of Reps!

BUT... and it's a BIG but... while the 2 votes needed to defeat a traffic light Bill may not regularly or often come from Wilkie or Windsor (only because we don't think they have the spine to do so), the door is now left wide open for the faceless men of Labor to cross the floor, with no fear of reprimand or disendorsement.  PM (Puppet Minister) Gillard can't afford to penalise anyone for crossing the floor, effectively leaving the House of Reps down to 74-74-1.  A serious question would then be put to Her Excellency (and I use that term loosely), the Governess-General Quentin Bryce, mother-in-law to the favourite for next PM, Bill Shorten, to do her actual job, and impartially invite the leader of the opposition to form Government (the GG's partiality and conflict of interest will be discussed in another post).  Knowing the self-promoting and self-serving priorities of the faceless men, the Greens, and the Independents, Gillard is now even less than a puppet.  She is a lame duck, held at ransom by any one person in "her" party at any time.  That, fellow Australians, is the more pertinant issue to the appointment of Speaker.  The pairing rights have less to do with Parliamentary reform, and everything to do with making sure the traffic lights stay on, and the red light camera keeps on fining us!

Given that convention is one of the most powerful sources of Constitutional Law (for example, in Australia, the office of Prime Minister does not exist in the Constitution of Australia Act), the Honourable Tony Abbott was more than wise in deciding today not to support an agreement that relies on a contravention of the spirit of our Constitution (an important factor when we lawyers interpret any Act of Parliament, not just constitutions).  If it hasn't already, the Rainbow Alliance will lose its credibility and confidence, not just from the Australian public (whether it had ever achieved that is another question), but from its own "allies."

At that time, the Opposition - the true Coalition - will be ready to govern in the best interests of Australia - if the representative of Her Majesty ERII the Queen of Australia, the GG, does her Constitutionally allocated job.  That, however, is yet to be seen.
For the Cause...

Drew Scott, Esq. is Federal President and Founder of the Young Australia's Foundation, an Attorney & Counsellor at law of the Appellate Court in New York, USA and a candidate for admission to the Supreme Court of Victoria, and the Federal Courts of the Commonwealth of Australia.