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Chapter 5 - Improving the Parliament |
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Chapter 5 - Improving the Parliament
The permanent improvement of Parliament is a key feature of the Advancing Democracy proposal.
Its unique feature is the role of the Governor-General and Deputy in presiding over debates in Parliament. In part this would be implemented through extensive amendments to the current section 50 of the Constitution, which deals with what are commonly referred to as the Standing Orders of the House of Representatives and Senate. Following the amendment, the section would require:
“that decisions made under the standing orders during proceedings in Parliament by any person presiding cannot be overruled otherwise than by a resolution passed by two-thirds of those voting on the resolution”.
The present position
Historically decisions by presiding officers of both Houses have been capable of reversal by a simple majority vote. In the House of Representatives this has ensured that the Government of the day - which usually must command a majority in order to be the Government - has a complete stranglehold on debate. Generally it appoints one of its own members as the Speaker who is then very lenient on his or her own side.
It is difficult to find an Australian who is happy about our Parliamentary ‘debates’. The dissatisfaction is most apparent during Question Time in the House of Representatives, when members are able to ask questions of Ministers concerning the management of their portfolios. It is routine for Ministers to avoid answering the question, to mount attacks on their political opponents and to speak for far longer than is necessary, in order to use up the time allocated for questions. The Opposition responds with repeated points of order to interrupt the flow of Ministerial propaganda, and to create a sense of a Government not in control.
In the Senate, it should be a little different, and arguably better, because the Government often lacks a majority, in which case the Senate President may be a member of an Opposition party. Nevertheless the recently retired Senator Alan Ferguson (Liberal, South Australia), a veteran of 24 years in the Senate and himself a former President, observed in his final Senate speech that he thought Senate Question Time was so useless that it should be abolished: Senate Hansard Tue 21/06/2011, p.38. The culture in Canberra is for Ministers to avoid answering questions.
The problems in Question Time are symptomatic of other Parliamentary proceedings. The phenomenon is not new. There have been complaints about Parliament for decades.
The ‘hung’ Parliament of 2010
The 2010 election resulted in a ‘hung’ Parliament, where neither major party held a majority, resulting in the Labor Government needing to rely for its majority on the support of independent and Green members of Parliament. There was some expectation that this would force an improvement in Parliamentary conduct, as the Government-appointed Speaker could not rely on the automatic support of the independents and Green.
On 31st May 2011 the Speaker excluded an allegedly unruly Opposition member of the House during Question Time. A challenge to his ruling was successful - House Hansard, Tue 31/05/2011, p.13. Some might think this demonstrated the advantages of a ‘hung’ Parliament, in that it showed that the Government cannot get its way the whole time.
In fact, anyone watching Question Time on that day would have been struck with the extent to which Ministers were repeatedly able to ignore the questions actually asked, with the full support of the Speaker. Most of the Opposition’s points of order concerned the relevance of the reply to the question and were quite legitimate. The lack of a Government majority had not forced the Speaker to actually apply the rules of debate when they mattered most. It was only when he took the most extreme action he is permitted that he failed to carry the House with him. (There were some indications the new Speaker selected at the end of 2011 was enforcing more appropriate Parliamentary behaviour, but he was soon forced to stand aside).
‘Hung’ Parliaments with minority Governments are no solution to the current malaise within Parliament. They have occurred only twice since the party system crystallised in 1909, and the hung Parliament between 2010 and 2013 showed only tentative signs of elevating Parliament to what it should be - the principal forum in which the great issues of the day are debated, with solutions being enacted in law.
The need for an impartial chairperson
The problem is that the presiding officer, whether in the House or the Senate, is not independent of the participants in the debate. The present Constitution forces each House to select one of its own to preside, which automatically means a partisan politician will hold the position. The Speaker and the President of the Senate will invariably have had a long history of party involvement before assuming a position which carries significant extra salary and status. That person is then subject to the will of the majority, and knows that a decision contrary to the interests of his or her side in the political debate places the job, extra salary and enhanced status in jeopardy.
By contrast, the Advancing Democracy model requires the Head of State to preside in the House - proposed s.58A - and the Deputy in the Senate - proposed s.59A. Their decisions during debates will not be able to be overruled except by a two-thirds majority of the relevant house - proposed s.50(2)(i).
Coupled with the proposed method of appointment - a two-thirds majority of the House in which the Governor-General and Deputy preside under ss. 58B and 59B - this is much more likely to produce presiding offices who are genuinely independent and capable of impartial enforcement of the Standing Orders. The Governor-General and Deputy will know that they must retain broad support across the groups represented in Parliament, and the best way to achieve that is to be genuinely impartial.
Much will of course depend on the calibre of the persons chosen. There are plenty of able men and women who lack the ability to chair unruly meetings. But the possibility of an occasional unsuitable appointment is not a reason to discard the proposal. If a Governor-General performed poorly, Parliamentary debate would be no worse than it is at present. Poor performance by one individual in a system limits, but does not negate, the value of the system.
A chairperson with power
The Advancing Democracy model goes further, by requiring that the Standing Orders include financial penalties for members who do not follow the rules - see proposed s.50(2)(ii). Presently there are no penalties beyond exclusion from the Parliament for a short period.
Considering all these measures together, we can see the impact of the proposed model on of the worst excesses in our Parliamentary debates:
▸ Ministerial evasion of questions during Question Time:
Where the Government has a majority, the Speaker is appointed by the majority party and gives Ministers considerable leeway in determining whether their answers are relevant to the question. Even where there is an independent speaker, a motion dissenting from the Speaker’s ruling can be carried by the Government majority.
The Advancing Democracy model solves the problem in three ways. Firstly, a ruling by a non-partisan Governor-General or Deputy could not be overruled except by a two-thirds majority. So the Governor-General or Deputy would have the power to insist on questions being answered to his or her satisfaction, not just to the satisfaction of the Government majority. Secondly Ministers who fail to actually answer questions would suffer the penalty of a public declaration of failure by an impartial person. Thirdly, that declaration would have a personal consequence for the Minister - the forfeiture of one day of the Minister’s ministerial salary.
▸ Unruly behaviour in Parliament:
Debate frequently becomes rowdy and unruly. Members may then be suspended from the House for failing to follow the standing orders. Almost invariably more Opposition members are excluded than Government members, leading to complaints that the Speaker is biased.
Having a non-partisan Governor-General or Deputy in the chair solves this problem in three ways. Firstly, unruly behaviour during Question Time is often the result of frustration that Ministers are not answering legitimate questions. Since the proposal will force Ministers to answer, there should be less disruption from this frustration. Secondly, the Governor-General and Deputy would attract fewer complaints of bias because in practice they are much less likely to be biased than a Speaker drawn from the governing party. Those refusing to accept their decision would look like a footballer or cricketer who refuses to accept the umpire’s decision. Thirdly, Members suspended from the House would forfeit their Parliamentary salary for the duration of the suspension.
The effectiveness of these measures depends to some extent on the content of the Standing Orders. Current standing orders do not actually require Ministers to answer questions. They say the answer must be “directly relevant” to the question: House Standing Order 104(a). Standing orders would remain within the control of a simple majority, which may choose to ‘dumb down’ the rules so that Ministers may do and say whatever they choose. This is not very likely however. The majority can usually remember a time when it was the minority, and can anticipate being in the minority in the future. Changing the rules to counteract the loss of control over the presiding officer is unlikely to offer either side sufficient long term gain to make the option attractive.
What if the impartial chairperson becomes biased?
It remains possible that a Governor-General or Deputy will be biased, or will become so over time.
Bias against individual members of Parliament, arising from, say, a personality clash or a prior rivalry, is unlikely to be a lasting problem. Other members would benefit so little from such bias that they are unlikely to want the biased rulings upheld; hence motions of dissent from such rulings would be more likely to attract the necessary two-thirds majority.
Bias against a political party or group would cause much greater problems, because the other parties would gain from such bias, and be reluctant to overturn the biased rulings. Having a biased Governor-General could be worse than having a biased Speaker under our present system.
Accordingly, the Advancing Democracy proposal contains an alternative method of challenging bias shown in rulings on debate by the Head of State or Deputy. Proposed sections 58A(i) and 59A(i) oblige the Governor-General and Deputy to comply with the standing orders and the requirements of impartiality and fairness between competing parties when presiding over sessions of the House and Senate. Since those sections express this function to be the exercise of a “right”, the decisions of the Governor-General and Deputy will be “justiciable” under proposed s.60A(1). This means that aggrieved Members of Parliament who believe they have been discriminated against can commence proceedings against the Governor-General in the High Court, pursuant to s.76(i) of the Constitution and s.30(a) of the Judiciary Act 1903. It is of course unlikely that this action would be taken except in the most extreme of cases. The potential for such action is likely to be a sufficient deterrent to prevent a Governor-General or Deputy indulging his or her personal bias.
The undemocratic rules concerning the Speaker
The present arrangement concerning the Speaker of the House of Representatives has undemocratic features which should be discarded.
The Speaker of the House of Representatives is a member of the House, yet upon becoming Speaker, he or she loses his or her right to vote, unless the numbers voting for and against are equal, in which case he or she has a casting vote which determines the result of the question being debated. This rule is set out in section 40, which reads:
“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.”
The reason for this arrangement is presumably to make the Speaker appear independent and impartial. The position is different in the Senate. The President of the Senate votes even when he or she is presiding over the debate, and has no casting vote: section 23. There is no rational reason for the difference between the two Houses.
Section 40 causes problems when the parties in the House are nearly equally divided. The Government wants a supporter to be the Speaker, but appointing a supporter robs it of a vote on the floor of the House. In the 2010 election, the voters elected 73 Liberals and Nationals, 72 Labor members, 4 independents and 1 Green. By providing the Speaker, the minority Labor Government reduced its vote to 71. When all members attended and voted on vital debates, 149 members would participate in the vote, meaning the numbers could never be equally divided. On these occasions, and on others when an uneven number of members voted, the member elected as Speaker could not vote. This disenfranchises the Speaker’s electorate.
Although the Constitution does not expressly say so, logically section 40 applies to joint sittings of Parliament. Joint sittings are part of the mechanism in s.57 to resolve deadlocks between the House of Representatives and the Senate. They are only likely to occur when there is significant dispute, and Parliament is almost evenly divided. The relevant part of s.57 is set out below, but any reader who finds legal language confusing need only read the parts underlined by the author to understand the argument which follows:
“the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.
The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent.”
The point of relevance is that a joint sitting remains a sitting of the House of Representatives, despite it taking place together with a sitting of the Senate, and vice-versa. All section 57 does is to provide for the House to sit with the Senate, at which time a special rule applies. The sitting, in respect of members of the House of Representatives, retains the character of a meeting of that House. That after all is the only basis on which its members can vote a bill into law - because they are Representatives.
Accordingly a vote in a joint sitting is still a “question arising in the House of Representatives” to which s.40 applies. The Speaker cannot vote except in accordance with s.40, and this rule can operate so as to prevent legislation supported by the majority from being passed.
For legislation to be passed at a joint sitting, an absolute majority of the total of both houses is required. Presently there are 150 members of the House of Representatives and 76 Senators - 226 in total. An absolute majority would require 114 or more votes, as against 112 or fewer. Section 40 has no effect if the vote exceeds an absolute majority, but it has a marked effect on a proposed law which only just commands an absolute majority. In that event, these scenarios are possible:
▸ If the Speaker was one of 114 members who wished to pass the legislation, as opposed to 112 in opposition, the Speaker would under s.40 be prevented from voting, leaving 113 in favour and 112 against. This is less than an absolute majority. As the votes were not even, the Speaker would not be allowed a casting vote. The result would be that although an absolute majority was in favour of the legislation, it would not be passed into law because s.40 would prevent one of them from voting.
▸ If the number of members in the House was increased by 1, an absolute majority would be 114 to 113. In this case, s.40 would not make a difference - the members would split 113-113, then the Speaker’s casting vote would determine the result. Where the total number of members is uneven, s.40 does not affect a joint sitting.
In the first scenario the majority in favour of the legislation is higher, but the law is not passed. Consider how the public might react, given that joint sitting bills will usually be contentious. What if a double dissolution and joint sitting is required on the issue of the bills to repeal the carbon tax? By the time of the joint sitting, the Liberal / National Party coalition would have won two elections advocating repeal, yet it would fail to repeal the tax despite having an absolute majority of Parliamentarians in favour of repeal. How would the coalition’s supporters react to this completely undemocratic result? Surely it is better to change section 40, rather than gamble that the majority will stoically accept defeat on an undemocratic technicality.
It is absurd that the Government’s ability to carry votes and legislation through the House is impeded by rules designed to clothe the Speaker with an aura of impartiality which is routinely contradicted by his or her pro-Government rulings. If the Advancing Democracy proposal is carried, there will be no need for any member to surrender his or her ordinary rights as an Member of Parliament simply in order to chair debates. Debates will be chaired by the Governor-General of Parliament who, not being a Parliamentarian, is not entitled to vote.
Go to next chapter |
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Chapter 5 - Improving the Parliament
The permanent improvement of Parliament is a key feature of the Advancing Democracy proposal.
Its unique feature is the role of the Governor-General and Deputy in presiding over debates in Parliament. In part this would be implemented through extensive amendments to the current section 50 of the Constitution, which deals with what are commonly referred to as the Standing Orders of the House of Representatives and Senate. Following the amendment, the section would require:
“that decisions made under the standing orders during proceedings in Parliament by any person presiding cannot be overruled otherwise than by a resolution passed by two-thirds of those voting on the resolution”.
The present position
Historically decisions by presiding officers of both Houses have been capable of reversal by a simple majority vote. In the House of Representatives this has ensured that the Government of the day - which usually must command a majority in order to be the Government - has a complete stranglehold on debate. Generally it appoints one of its own members as the Speaker who is then very lenient on his or her own side.
It is difficult to find an Australian who is happy about our Parliamentary ‘debates’. The dissatisfaction is most apparent during Question Time in the House of Representatives, when members are able to ask questions of Ministers concerning the management of their portfolios. It is routine for Ministers to avoid answering the question, to mount attacks on their political opponents and to speak for far longer than is necessary, in order to use up the time allocated for questions. The Opposition responds with repeated points of order to interrupt the flow of Ministerial propaganda, and to create a sense of a Government not in control.
In the Senate, it should be a little different, and arguably better, because the Government often lacks a majority, in which case the Senate President may be a member of an Opposition party. Nevertheless the recently retired Senator Alan Ferguson (Liberal, South Australia), a veteran of 24 years in the Senate and himself a former President, observed in his final Senate speech that he thought Senate Question Time was so useless that it should be abolished: Senate Hansard Tue 21/06/2011, p.38. The culture in Canberra is for Ministers to avoid answering questions.
The problems in Question Time are symptomatic of other Parliamentary proceedings. The phenomenon is not new. There have been complaints about Parliament for decades.
The ‘hung’ Parliament of 2010
The 2010 election resulted in a ‘hung’ Parliament, where neither major party held a majority, resulting in the Labor Government needing to rely for its majority on the support of independent and Green members of Parliament. There was some expectation that this would force an improvement in Parliamentary conduct, as the Government-appointed Speaker could not rely on the automatic support of the independents and Green.
On 31st May 2011 the Speaker excluded an allegedly unruly Opposition member of the House during Question Time. A challenge to his ruling was successful - House Hansard, Tue 31/05/2011, p.13. Some might think this demonstrated the advantages of a ‘hung’ Parliament, in that it showed that the Government cannot get its way the whole time.
In fact, anyone watching Question Time on that day would have been struck with the extent to which Ministers were repeatedly able to ignore the questions actually asked, with the full support of the Speaker. Most of the Opposition’s points of order concerned the relevance of the reply to the question and were quite legitimate. The lack of a Government majority had not forced the Speaker to actually apply the rules of debate when they mattered most. It was only when he took the most extreme action he is permitted that he failed to carry the House with him. (There were some indications the new Speaker selected at the end of 2011 was enforcing more appropriate Parliamentary behaviour, but he was soon forced to stand aside).
‘Hung’ Parliaments with minority Governments are no solution to the current malaise within Parliament. They have occurred only twice since the party system crystallised in 1909, and the hung Parliament between 2010 and 2013 showed only tentative signs of elevating Parliament to what it should be - the principal forum in which the great issues of the day are debated, with solutions being enacted in law.
The need for an impartial chairperson
The problem is that the presiding officer, whether in the House or the Senate, is not independent of the participants in the debate. The present Constitution forces each House to select one of its own to preside, which automatically means a partisan politician will hold the position. The Speaker and the President of the Senate will invariably have had a long history of party involvement before assuming a position which carries significant extra salary and status. That person is then subject to the will of the majority, and knows that a decision contrary to the interests of his or her side in the political debate places the job, extra salary and enhanced status in jeopardy.
By contrast, the Advancing Democracy model requires the Head of State to preside in the House - proposed s.58A - and the Deputy in the Senate - proposed s.59A. Their decisions during debates will not be able to be overruled except by a two-thirds majority of the relevant house - proposed s.50(2)(i).
Coupled with the proposed method of appointment - a two-thirds majority of the House in which the Governor-General and Deputy preside under ss. 58B and 59B - this is much more likely to produce presiding offices who are genuinely independent and capable of impartial enforcement of the Standing Orders. The Governor-General and Deputy will know that they must retain broad support across the groups represented in Parliament, and the best way to achieve that is to be genuinely impartial.
Much will of course depend on the calibre of the persons chosen. There are plenty of able men and women who lack the ability to chair unruly meetings. But the possibility of an occasional unsuitable appointment is not a reason to discard the proposal. If a Governor-General performed poorly, Parliamentary debate would be no worse than it is at present. Poor performance by one individual in a system limits, but does not negate, the value of the system.
A chairperson with power
The Advancing Democracy model goes further, by requiring that the Standing Orders include financial penalties for members who do not follow the rules - see proposed s.50(2)(ii). Presently there are no penalties beyond exclusion from the Parliament for a short period.
Considering all these measures together, we can see the impact of the proposed model on of the worst excesses in our Parliamentary debates:
▸ Ministerial evasion of questions during Question Time:
Where the Government has a majority, the Speaker is appointed by the majority party and gives Ministers considerable leeway in determining whether their answers are relevant to the question. Even where there is an independent speaker, a motion dissenting from the Speaker’s ruling can be carried by the Government majority.
The Advancing Democracy model solves the problem in three ways. Firstly, a ruling by a non-partisan Governor-General or Deputy could not be overruled except by a two-thirds majority. So the Governor-General or Deputy would have the power to insist on questions being answered to his or her satisfaction, not just to the satisfaction of the Government majority. Secondly Ministers who fail to actually answer questions would suffer the penalty of a public declaration of failure by an impartial person. Thirdly, that declaration would have a personal consequence for the Minister - the forfeiture of one day of the Minister’s ministerial salary.
▸ Unruly behaviour in Parliament:
Debate frequently becomes rowdy and unruly. Members may then be suspended from the House for failing to follow the standing orders. Almost invariably more Opposition members are excluded than Government members, leading to complaints that the Speaker is biased.
Having a non-partisan Governor-General or Deputy in the chair solves this problem in three ways. Firstly, unruly behaviour during Question Time is often the result of frustration that Ministers are not answering legitimate questions. Since the proposal will force Ministers to answer, there should be less disruption from this frustration. Secondly, the Governor-General and Deputy would attract fewer complaints of bias because in practice they are much less likely to be biased than a Speaker drawn from the governing party. Those refusing to accept their decision would look like a footballer or cricketer who refuses to accept the umpire’s decision. Thirdly, Members suspended from the House would forfeit their Parliamentary salary for the duration of the suspension.
The effectiveness of these measures depends to some extent on the content of the Standing Orders. Current standing orders do not actually require Ministers to answer questions. They say the answer must be “directly relevant” to the question: House Standing Order 104(a). Standing orders would remain within the control of a simple majority, which may choose to ‘dumb down’ the rules so that Ministers may do and say whatever they choose. This is not very likely however. The majority can usually remember a time when it was the minority, and can anticipate being in the minority in the future. Changing the rules to counteract the loss of control over the presiding officer is unlikely to offer either side sufficient long term gain to make the option attractive.
What if the impartial chairperson becomes biased?
It remains possible that a Governor-General or Deputy will be biased, or will become so over time.
Bias against individual members of Parliament, arising from, say, a personality clash or a prior rivalry, is unlikely to be a lasting problem. Other members would benefit so little from such bias that they are unlikely to want the biased rulings upheld; hence motions of dissent from such rulings would be more likely to attract the necessary two-thirds majority.
Bias against a political party or group would cause much greater problems, because the other parties would gain from such bias, and be reluctant to overturn the biased rulings. Having a biased Governor-General could be worse than having a biased Speaker under our present system.
Accordingly, the Advancing Democracy proposal contains an alternative method of challenging bias shown in rulings on debate by the Head of State or Deputy. Proposed sections 58A(i) and 59A(i) oblige the Governor-General and Deputy to comply with the standing orders and the requirements of impartiality and fairness between competing parties when presiding over sessions of the House and Senate. Since those sections express this function to be the exercise of a “right”, the decisions of the Governor-General and Deputy will be “justiciable” under proposed s.60A(1). This means that aggrieved Members of Parliament who believe they have been discriminated against can commence proceedings against the Governor-General in the High Court, pursuant to s.76(i) of the Constitution and s.30(a) of the Judiciary Act 1903. It is of course unlikely that this action would be taken except in the most extreme of cases. The potential for such action is likely to be a sufficient deterrent to prevent a Governor-General or Deputy indulging his or her personal bias.
The undemocratic rules concerning the Speaker
The present arrangement concerning the Speaker of the House of Representatives has undemocratic features which should be discarded.
The Speaker of the House of Representatives is a member of the House, yet upon becoming Speaker, he or she loses his or her right to vote, unless the numbers voting for and against are equal, in which case he or she has a casting vote which determines the result of the question being debated. This rule is set out in section 40, which reads:
“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.”
The reason for this arrangement is presumably to make the Speaker appear independent and impartial. The position is different in the Senate. The President of the Senate votes even when he or she is presiding over the debate, and has no casting vote: section 23. There is no rational reason for the difference between the two Houses.
Section 40 causes problems when the parties in the House are nearly equally divided. The Government wants a supporter to be the Speaker, but appointing a supporter robs it of a vote on the floor of the House. In the 2010 election, the voters elected 73 Liberals and Nationals, 72 Labor members, 4 independents and 1 Green. By providing the Speaker, the minority Labor Government reduced its vote to 71. When all members attended and voted on vital debates, 149 members would participate in the vote, meaning the numbers could never be equally divided. On these occasions, and on others when an uneven number of members voted, the member elected as Speaker could not vote. This disenfranchises the Speaker’s electorate.
Although the Constitution does not expressly say so, logically section 40 applies to joint sittings of Parliament. Joint sittings are part of the mechanism in s.57 to resolve deadlocks between the House of Representatives and the Senate. They are only likely to occur when there is significant dispute, and Parliament is almost evenly divided. The relevant part of s.57 is set out below, but any reader who finds legal language confusing need only read the parts underlined by the author to understand the argument which follows:
“the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.
The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent.”
The point of relevance is that a joint sitting remains a sitting of the House of Representatives, despite it taking place together with a sitting of the Senate, and vice-versa. All section 57 does is to provide for the House to sit with the Senate, at which time a special rule applies. The sitting, in respect of members of the House of Representatives, retains the character of a meeting of that House. That after all is the only basis on which its members can vote a bill into law - because they are Representatives.
Accordingly a vote in a joint sitting is still a “question arising in the House of Representatives” to which s.40 applies. The Speaker cannot vote except in accordance with s.40, and this rule can operate so as to prevent legislation supported by the majority from being passed.
For legislation to be passed at a joint sitting, an absolute majority of the total of both houses is required. Presently there are 150 members of the House of Representatives and 76 Senators - 226 in total. An absolute majority would require 114 or more votes, as against 112 or fewer. Section 40 has no effect if the vote exceeds an absolute majority, but it has a marked effect on a proposed law which only just commands an absolute majority. In that event, these scenarios are possible:
▸ If the Speaker was one of 114 members who wished to pass the legislation, as opposed to 112 in opposition, the Speaker would under s.40 be prevented from voting, leaving 113 in favour and 112 against. This is less than an absolute majority. As the votes were not even, the Speaker would not be allowed a casting vote. The result would be that although an absolute majority was in favour of the legislation, it would not be passed into law because s.40 would prevent one of them from voting.
▸ If the number of members in the House was increased by 1, an absolute majority would be 114 to 113. In this case, s.40 would not make a difference - the members would split 113-113, then the Speaker’s casting vote would determine the result. Where the total number of members is uneven, s.40 does not affect a joint sitting.
In the first scenario the majority in favour of the legislation is higher, but the law is not passed. Consider how the public might react, given that joint sitting bills will usually be contentious. What if a double dissolution and joint sitting is required on the issue of the bills to repeal the carbon tax? By the time of the joint sitting, the Liberal / National Party coalition would have won two elections advocating repeal, yet it would fail to repeal the tax despite having an absolute majority of Parliamentarians in favour of repeal. How would the coalition’s supporters react to this completely undemocratic result? Surely it is better to change section 40, rather than gamble that the majority will stoically accept defeat on an undemocratic technicality.
It is absurd that the Government’s ability to carry votes and legislation through the House is impeded by rules designed to clothe the Speaker with an aura of impartiality which is routinely contradicted by his or her pro-Government rulings. If the Advancing Democracy proposal is carried, there will be no need for any member to surrender his or her ordinary rights as an Member of Parliament simply in order to chair debates. Debates will be chaired by the Governor-General of Parliament who, not being a Parliamentarian, is not entitled to vote.
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