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Published online by Cambridge University Press: 24 January 2025
1 Robert, A Caro, The Power Broker: Robert Moses and the Fall of New York ( 1974)Google Scholar.
2 Robert, A Caro, The Years of Lyndon Johnson: The Path to Power (1982)Google Scholar; The Years of Lyndon Johnson: Means of Ascent (1990); The Years of Lyndon Johnson: Master of the Senate (2002) (Master of the Senate).
3 The excellent American work Legislation and Statutory Interpretation by William N Eskridge Jr, Philip P Frickey and Elizabeth Garrett (2000) has a picture of Lyndon Johnson on its cover, as President signing into law the Civil Rights Act 1964.
4 John, Quick and Robert, Garran, The Annotated Constitution of the Australian Commonwealth (1901) especially 411–444Google Scholar, 662–673 and 683–688; G, Evans (ed), Labor and the Constitution 1972–5 (1977) especially 178-190 and 215–301Google Scholar; Geoffrey, Sawer, Federation Under Strain (1977)Google Scholar especially 107–40; Dennis, Pearce, ‘The Legislative Power of the Senate’ in L, Zines (ed), Commentaries on the Australian Constitution (1977) 119Google Scholar; Peter, Hanks, Constitutional Law in Australia (2nd ed, 1996)Google Scholar within 33–127; P H, Lane, Lane’s Commentary on the Australian Constitution (2nd ed, 1997)Google Scholar especially 63-81, 392-397 and 406-419; Gabriel, Moens and John, Trone Lumb and Moens’ The Constitution of the Commonwealth of Australia Annotated (6th ed, 2001) especially 44–56Google Scholar, 188-196 and 202-213. Odgers’ Australian Senate Practice edited by Harry Evans (11th ed, 2004) focuses to a greater extent on the practical workings of the Senate. However, recent editions have included comments such as: ‘In practice, with the ministry, the executive government, initiating most legislation in the House of Representatives, controlling that House through a party majority, and advising the Governor-General, the task of exercising the legislative power falls upon the Senate’ (11th ed, 227). This seems to me to be more of a rhetorical flourish than a statement of either constitutional principle or political reality. Political scientists are often best at looking at the meeting of principle and practice, see the recent publication by Stanley Bach, Platypus and Parliament: The Australian Senate in Theory and Practice (2003).
5 Scott, Sherman, ‘Caro’s Way’ (2002) 41(1) Columbia Journalism Review 63-4Google Scholar.
6 Master of the Senate 1051 and following.
7 Ibid 1053.
8 Ibid 835.
9 The first volume of Caro’s biography, The Path to Power, see above n 2, deals with Lyndon Johnson’s family and childhood in this country, and Caro lived in this area when he was working on it.
10 This is discussed extensively by Caro in volume 2 of the biography, Means of Ascent, see above n 2.
11 Meg, Russell, Reforming the House of Lords, Lessons from Overseas (2000) 19–20Google Scholar.
12 Master of the Senate 8.
13 Ibid 9.
14 Henry Parkes stated in the 1891 Federal Convention Debates that what became the Australian Senate should:
have within itself the only conservatism possible in a democracy — the conservatism of maturity of judgment, of distinction of service, of length of experience, and weight of character — which are the only qualities we can expect to collect and bring into one body in a community young and inexperienced as Australia.
Quoted in Quick and Garran, above n 4, 416. The 1891 draft of the Australian Constitution provided for a Senate chosen ‘by the Houses of the Parliament of the several States’, but by 1898 it was generally accepted that the Senate should be directly elected: see Quick and Garran, above n 4, 412-413, 418-419.
15 United States Constitution art I, § 3 (4).
16 The Australian solution is to give the President of the Senate, who is a senator, an ordinary vote, but no casting vote (Australian Constitution s 23).
17 For example, Master of the Senate 856.
18 Bruce, Ackerman in ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633Google Scholar discusses and assesses these two primary models, and their variants. As Ackerman points out, separation of powers is not an end in itself. The measures against which he assesses the models are democracy, professional competence, and enhancement of fundamental rights.
19 Discussed by Ackerman, ibid 674–6.
20 As to the very significant debate in relation to the drafting of this provision, see Brian, Galligan and James, Warden ‘The Design of the Senate’ in Gregory, Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) 89Google Scholar. As to issues in relation to its current operation, see House of Representatives Committee on Legal and Constitutional Affairs, Parliament of Australia, The Third Paragraph of Section 53 of the Constitution (1995).
21 Again, as to the drafting debates, see Galligan and Warden, above n 20. There is significant High Court consideration of s 57 in Cormack v Cope (1974) 131 CLR 432, Victoria v The Commonwealth (1975) 134 CLR 81, and Western Australia v The Commonwealth (1975) 134 CLR 201. See also SirAnthony, Mason ‘The Double Dissolution Cases’ in H P, Lee and George, Winterton Australian Constitutional Landmarks (2003) 213Google Scholar.
22 Department of the Prime Minister and Cabinet, Resolving Deadlocks: A Discussion Paper on Section 57 of the Australian Constitution (2003)Google Scholar.
23 Master of the Senate 79–80.
24 Giles, Scott-Smith ‘From Symbol of Division to Cold War Asset: Lyndon Johnson and the Achievement of Hawaiian Statehood in 1959’ (2004) 89 History 256Google Scholar.
25 Master of the Senate 137.
26 Ibid 137.
27 Ibid 136 (emphasis in original).
28 Ibid 137.
29 Australian Constitution s 24. The Constitution states that until the Parliament otherwise provides there shall be 6 senators for each original State, that Parliament may increase or diminish the number of senators, but only so that there shall be equal representation of, and not less than 6 senators from, the original States (s 7). No new States have been admitted to the federation, but while the Australian Senate began life with 36 senators (6 from each State), it has moved by legislative reform to 60 in 1949 (10 from each State), 64 in 1975 (2 each from the Northern Territory and the Australian Capital Territory), and 76 in 1984 (12 from each State). The addition of Territory senators was upheld by the High Court in Western Australia v The Commonwealth (1975) 134 CLR 201 and Queensland v The Commonwealth (1977) 139 CLR 585. The increase in senators was driven to a large extent by the link to House numbers.
30 Russell, above n 11, 25.
31 Russell, above n 11, 10 and 25.
32 Ibid.
33 Ibid 25.
34 The 17th Amendment states in part:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
35 See above n 2.
36 Master of the Senate 390 (emphasis in original).
37 Ibid 452.
38 Australian Constitution s 7. Early drafts of the Constitution followed the original American model and provided for a Senate chosen ‘by the Houses of the Parliament of the several States’: see Galligan and Warden, above n 20, 109–110; and also above n 14.
39 Bach, above n 4, especially 69–82, drawing in particular on the work of John Uhr and Campbell Sharman.
40 Russell, above n 11, 29.
41 Master of the Senate 81.
42 United States Constitution art I, § 3(3). For representatives it is only 25 years and a citizen for seven years (art I, § 2(2)). For Presidents it is 35 years, and a natural born citizen (art II, § 1(5)).
43 Master of the Senate 81.
44 Ibid 82.
45 Commonwealth Electoral Act 1918 (Cth) s 163(1) in relation to both senators and members of the House of Representatives. Section 16 of the Australian Constitution provides that ‘the qualifications of a senator shall be the same as those of a member of the House of Representatives’. Section 34 states that ‘[u]ntil Parliament otherwise provides’, a member of the House of Representatives ‘must be of the full age of twenty-one years’.
46 For example, this greater diversity was noted by the Prime Minister John Howard in the Opening Address, Liberal Women’s Conference, Brisbane Convention and Exhibition Centre, 13 March 1998 <http://www.pm.gov.au/news/speeches/1998/libwom.htm> at 28 May 2005.
47 Russell, above n 11, 32–3.
48 Ibid 33.
49 Ibid 33–43, especially 41, using the analysis of Arend Lijphart.
50 United States Constitution art II, § 2(2).
51 Treaties are generally required to be tabled in the Parliament. The Joint Standing Committee on Treaties established in 1996 reviews and reports on all treaty actions proposed by the government before action is taken which binds Australia to the terms of the treaty. For a recent analysis, see Madelaine, Chiam ‘Evaluating Australia’s treaty-making process’ (2004) 15 Public Law Review 265Google Scholar.
52 Legislation may give a Committee a particular role. For example the Auditor-General Act 1997 (Cth) provides that the Minister must not make a recommendation for appointment as Auditor-General unless this has been referred to the Joint Committee of Public Accounts and Audit for approval, and the Committee has approved the proposed recommendation (sch 1 cl 2).
53 Master of the Senate 232.
54 Australian Constitution s 50(ii).
55 Master of the Senate 363.
56 Ibid 359.
57 Ibid 488.
58 Ibid 485.
59 Ibid 92.
60 Ibid.
61 I C, Harris (ed), House of Representatives Practice (5th ed, 2005) 512–519Google Scholar; House of Representatives, Standing Orders, Os 1 and 69 (formerly O 91).
62 Harris, above n 61, 384–390; House of Representatives, Standing Orders, Os 82-85 (formerly O 92).
63 J R, Odgers, Australian Senate Practice (5th ed, 1976) 245Google Scholar.
64 Ibid 352.
65 Master of the Senate 92–4, 216–8. Caro describes how the southern senators even had this provision strengthened in 1949 to require two thirds of senators chosen, not just present. In 1975, the required number was reduced to three-fifths: see Richard S Beth and Stanley Bach ‘Filibusters and Cloture in the Senate’ Report for Congress, updated March 28, 2003, CRS Report RL30360, 10.
66 Master of the Senate xxiii.
67 Ibid 102.
68 Ibid xv.
69 Ibid xxiii.
70 Ibid 688–91; United States Department of Justice ‘Introduction to Federal Voting Rights Laws’ <http://www.usdoj.gov/crt/voting/intro/intro_a.htm> at 28 May 2005.
71 Master of the Senate ix– xi.
72 Ibid 892.
73 Ibid 890.
74 Held invalid by the High Court in Australian Communist Party v The Commonwealth (1951) 83 CLR 1.
75 Parliament of Australia, Senate, ‘Bills debated for longer than 20 hours’ <http://www.aph.gov.au/Senate/work/statistics/consid_legis/longest_debate.htm> at 28 May 2005.
76 The Commonwealth Bank Act 1951 (Cth) was passed after the double dissolution election of 1951 when the government obtained control of the Senate.