In a Senate committee, Professor Hogg and Professor Monahan have both argued that the existence of discretion for the Prime Minister and the Governor General are determinative of the constitutionality of this measure.
I disagree. I believe the court will concern itself with more than the lack of binding on the discretion of the Governor General. It will be concerned with the effects of the process set out here, as well as with the intent of the process. Once the process is under way and elected senators are included in the chamber, the powers of the Senate will change dramatically. There's no doubt that the intention is to populate the Senate with elected senators. The effects of this would be profound. The Supreme Court would look at the effects of the legislation and not simply the black-letter relationship between this process and a process that's detailed in the constitutional documents.
You talk about the convention. I think there would be a convention, and only the elected nominees would be appointed. I have argued that there would quickly be a convention in respect of term limits for the House of Commons. This is what the public understands and expects. A law passed by Parliament, it is thought, should be followed. So I think there would quickly be a convention so that the effects of this legislation would soon be very different from the bare legal framework it describes. Rather than simply consultative, it would become determinative.