[EL] Senate rules, constitutional justiciability

[Graeme Orr]

Fascinating to and fro, over Jim Gardner's speculative Senate rules.

>From the perspective of a parliamentary system under a written
Constitution, the second such rule in particular would be justiciable.
On an orthodox reading of the immunity of parliament (aka 'speech or
debate' rule in US) which is derived from the UK Bill of Rights Act 1689,
where a higher law raises a justiciable controversy, a Court must hear it.
Unless it involves impeaching parliamentary privilege in the sense of
treading on parliament's absolute freedom of *deliberation*.  Thus in
Australia, a Court would exercise some deference, but not treat this as a
purely political question simply because it involved standing orders of a
parliament:  cf *A-G v Marquet*
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2003/67.html at
para 107.

Jim's second speculative rule - that legislation would need the votes of
Senators from States representing 50%+ of the population (or electors? from
time to time?) would surely be suspect under an original intent, if not
literal, reading of the idea of a 'vote' and implications about
parliamentary majorities.  On top of that is any purposive intent derived
from the federal basis and compact of the Senate.   That seems to me
obvious, regardless of whether the rule was instead of, or just on top of,
the usual majority-present-and-voting-formally ideal.   Adding the rule on
top gives a kind of veto to Senators from the bigger States.     Which
might suit a democratic model based on genuine 1v-1v (as intended for the
House), but not the Senate as constructed.

The Australian Constitution was modeled on the US version in 1900.  It adds
'by majority' to 'each Senator shall have one vote'.  But that appears to
be out of caution. And is an adjunct to the rule that the President of the
Senate has a casting vote, but only if there is no majority either way.
Jim's speculative rules surely undermines the casting vote vested in the
Veep.

McCarthy v Pelosi may be distinguishable.  Doesn't it go to the form or
manner of voting in an Assembly - genuinely to procedure - rather than the
weight of the vote as such?

Real paradoxes of entrenchment, limiting freedom of future parliaments, may
also arise if a parliament could adjust vote weights directly.   (As
opposed to indirectly, through gerrymandering or malapportioning
boundaries).

yours
Graeme Orr  FASSA, FAAL
Professor, Law School
University of Queensland
Australia
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