Speaker Tony Smith puts propriety before politics and lets the government suffer

 smh.com.au  02/12/2019 08:40:00 

Clearly Porter needed this opinion to be ventilated. But he did not want it to be published. In a letter, he told Smith: "I provide the Solicitor-General's advice on a confidential basis for the limited purpose of assisting you in your consideration of the Senate amendments, and would appreciate you not circulating it further."

MPs on both sides of the chamber praise and respect Smith as a cautious, fair and thoughtful Speaker, not prone to the partisan indulgences of some predecessors. Those traits were made abundantly clear on Tuesday.

But Smith felt compelled to do the opposite, given the gravity of the situation. He told the chamber that "as Speaker, it is important that I ensure in this instance all material available to me is also available to all members of the House", and made the decision to table the advice - thereby making it public.

Leader of the House Christopher Pyne confers with Speaker Tony Smith on Tuesday.

Leader of the House Christopher Pyne confers with Speaker Tony Smith on Tuesday.Credit:AAP

Porter also implored Smith to take Donaghue's advice as gospel and to therefore decide to throw out the amendments passed by the Senate and refuse to bring them on for debate.

"In my respectful submission, the ... House cannot consider the bill as amended by the Senate," Porter wrote. "The government considers that the only proper course is to disagree the purported amendments and to refuse to entertain the Senate amendments."

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Again, Smith disagreed. He noted the fundamental importance of resting the government's finances with the executive and the House of Representatives. But he also said that questions around this section of the Constitution had been the subject of disagreement between the House and the Senate over the years.

Smith said it was recognised that Parliament ultimately controlled its own rules, not the courts - as Donaghue himself had said in his advice, citing the High Court's judgment when it ruled on the postal survey in 2017.

"I will leave it in the House’s hands as to how it wishes to proceed," Smith told the chamber.

No one in Labor or on the crossbench was swayed by these events. By a vote of 75 to 74, the House determined it would ignore the solicitor-general's advice - and Porter's protests - and push on with the debate. It ultimately voted to support the bill, also by a margin of one.

Illustration: Matt Golding

Illustration: Matt GoldingCredit:

The stakes could not have been higher for the Morrison government, which became the first federal government in about 80 years to lose a vote in the House of Representatives on a substantive piece of legislation.

The Speaker is traditionally drawn from the governing party, but sits apart from it politically. By custom, they don't attend party room meetings, and are supposed to stay above the fray.

MPs on both sides of the chamber praise and respect Smith as a cautious, fair and thoughtful Speaker, not prone to the partisan indulgences of some predecessors. Those traits were made abundantly clear on Tuesday.

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