George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I want to address tonight a matter which is now largely of historical interest, but I do so essentially to correct some inaccurate claims that were made about the opposition—in particular in relation to me. Honourable senators will recall that in the period of uncertainty after the recent federal election, when both the coalition and the Australian Labor Party negotiated with the members for Lyne, New England and Kennedy, an agreement was reached, described as the Agreement for a Better Parliament, between Mr Albanese, Mr Pyne and the three Independents. One clause of that agreement, clause 2.1, provided for what was described as ‘pairing the Speaker’. Subsequently, the opposition, on the basis of, among other things, an opinion commissioned from me, concluded that pairing the Speaker of the House of Representatives would circumvent the plain meaning of section 40 of the Constitution, which provides:

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 gravamen of the opinion that I prepared was that by, in effect, treating the Speaker as if he had a deliberative vote the pairing arrangement was plainly, at the very least, an attempt to circumvent the plain words of section 40 of the Constitution and was therefore—and I know that this is an ambiguous term—unconstitutional. That advice was provided to the Leader of the Opposition on 20 September 2010.

On 22 September 2010, the Commonwealth Solicitor-General, Mr Stephen Gageler, whom I know and whom I respect, also provided advice to the government. Mr Gageler was asked to address a very narrow question. The question was:

Is there any necessary constitutional impediment to a pairing arrangement between the Speaker of the House of Representatives and another member from an opposing political party if that arrangement has a fixed operation irrespective of any particular vote?

Mr Gageler’s answer to that question was no, subject to two important qualifications. It was subsequently represented by the Prime Minister and other ministers that Mr Gageler had advised that pairing the Speaker of the House of Representatives was constitutional. In fact, what Mr Gageler said, subject to two heavy qualifications, was that pairing the Speaker of the House of Representatives was not necessarily unconstitutional. Given that the meaning of section 40 of the Constitution has never been considered by the High Court of Australia or, indeed, by any court, no competent lawyer would provide absolutely unambiguous advice that pairing the Speaker of the House of Representatives was necessarily constitutional or necessarily unconstitutional. All a competent lawyer could do would be to arrive at a tentative conclusion. I did that; so did Mr Gageler.

In the discussion in Mr Gageler’s advice, particularly at paragraph 41, Mr Gageler treats of the alternative view that pairing the Speaker of the House of Representatives might be in violation of section 40. He says this:

An argument can be mounted that the prohibition—

that is, the prohibition in section 40 of the Speaker exercising a deliberative vote—

is properly to be construed as having a broad substantive operation so as to deprive the Speaker of any capacity to exert influence over the determination of a question in the House through the exercise or non-exercise of any deliberative vote, including by exerting influence over the exercise or non-exercise of a deliberative vote by another member. If the prohibition were to be construed as having that broad substantive application, the application of the prohibition to particular circumstances would necessarily turn on questions of fact and degree. Were even a voluntary arrangement to give to the Speaker the substance of a deliberative vote, the potential for the application of the constitutional prohibition could not be ruled out.

So, if I can express the contending views in layman’s language, they come to this, and they are not very different. One is the view that I expounded in the opinion that I wrote that it was likely that the effect of a pairing arrangement would be to circumvent the plain words of section 40. Mr Gageler said that was not necessarily so; there was not necessarily any constitutional impediment but there might be. Mr Gageler’s position was, as I said, misrepresented and oversimplified by the Prime Minister for political purposes.

Subsequently, on 23 September 2010, I prepared a critique of Mr Gageler’s opinion in which I focused attention on the narrowness of the question that he had been asked, the way in which what Mr Gageler said had been misrepresented, and parted company, in some respects, from Mr Gageler’s reasoning. The two opinions that I wrote, both the original opinion and the critique, were written at the request of the Leader of the Opposition for his use and for the purpose of informing the coalition’s views as to the legalities of the matter. They were not written for the purpose of being released. The decision to release them, to which I have no objection, was a decision ultimately made by the Leader of the Opposition.

There is nothing unusual about that, particularly if one adopts an orthodox view of the role of the Attorney-General to provide legal advice to the Governor-General. Good attorneys-general, who are senior and competent lawyers from both sides of politics, have historically done that—though more commonly these days the task is placed in the hands of the Solicitor-General. It seems to me that, for the opposition, the shadow Attorney-General’s role is no different from the orthodox role of the Attorney-General in providing objective advice to the opposition. Might I say that I give legal advice to Mr Abbott very often at his request. Sometimes it suits the opposition’s political purposes and sometimes it does not. In any event, the opinions of Mr Gageler and the two opinions that I wrote were tabled in the House of Representatives by, respectively, Mr Albanese and Mr Pyne during a debate.

To complete the record, I should say that Mr Tom Hughes QC, the leader of the Australian Bar, who has more experience in appearing in matters of the High Court than any other practising barrister in Australia, having taken silk in, I think, 1959, some 51 years ago, and practiced at the top of the profession for half a century, approached me after he became aware of the public controversy about the advice that I had given and the impeachment of my integrity by certain Labor politicians. Mr Hughes told me that he actually agreed with my view, and he has furnished to me an opinion expressing the view that the position, as I had expressed it, was in accordance with his own views on the meaning of section 40 of the Constitution.

I seek leave to table my opinion dated 20 September 2010, Mr Gageler’s opinion dated 22 September 2010, an opinion written by me entitled ‘Critique of Gageler opinion’ dated 23 September 2010, and the opinion of Mr Tom Hughes QC dated 5 October 2010. I might say that Mr Hughes’s opinion, which supports my view of section 40, is supported by most, though not all, of the experienced constitutional lawyers that participated in this public discussion.

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