We can of course gain some assistance from the Constitutions of the existing republics with non-executive Presidents directly elected by the people. In respect of each of the eight issues below, I have prepared extracts from the constitutions of four of the most significant republics of this type - Iceland, Ireland, Austria and Portugal [for discussion of why these four have been selected, sources of the texts, etc., see Four Precedents, Intro] For some issues, there may be ideas we can copy from these countries; for others, we may need to work out our own approach; and for some others our Constitution may already have a reasonable approach. So here are some ideas for republicans to think about.
Eligibility: Austria, Iceland and Portugal, like the United States, have a minimum age of 35. In Ireland, anyone who is eligible to vote can run for President. We have no rules imposing a minimum age, apart from the voting age of 18, for any elected office in Australia. There seems no real need to impose a minimum - it will be hard for most 18-year-olds to persuade the voters that they have the dignity needed to be President, but why should we disqualify an exceptional one?
Nomination: One of the big issues we have to work out. In Ireland candidates can only be nominated by 20 members of parliament or by four County Councils. In Iceland (pop 280,000) 1500 voters can nominate a candidate, and in Portugal (pop 10 million) the number is 7500. [In Austria I think it is specified in ordinary laws passed by the legislature.]
There is no reason why there needs to be only one nomination method - to attract a range of candidates it would make sense to allow nomination by members of the Commonwealth Parliament, State Parliaments or local governments, or by some number of ordinary voters. George Winteron has suggested that the nomination method proposed in 1999 should be one of the alternatives - that the two Houses of the Commonwealth Parliament must nominate someone by a two-thirds majority. It seems unnecessary to force them to agree - I would rather turn it into a challenge. I suggest that any number over one-third of the members of the two Houses (ie, one-third rounded up, or one-third plus one, if one-third is a whole number) should be able to nominate a candidate. If two-thirds of them could agree, that would shut out any other candidate and there would be just the one nomination from the federal politicians ("the feds"). If two-thirds of them couldn't agree, there would be probably be two candidates nominated by the feds.
If one candidate was nominated by the feds with bipartisan support, or if two were nominated each with the support of a major party or coalition, they would probably be seen as pretty strong candidates and it is possible that nobody else would be interested in nominating someone, or in being nominated. However, we should leave room for other candidates to ensure a properly democratic range of choice. Here are some suggested numbers:
Method of Election: Iceland uses first past the post (the voting system for idiots), while in Austria and Portugal, if no candidate has received an absolute majority there is a "run-off" for the top two candidates (ie, the preferential voting system modified for idiots). The Irish demonstrate their intelligence by using preferential voting (which we are quite familiar with and Americans are now calling "instant runoff"!). We should either do the same or consider "approval voting". I leave readers to read the general arguments in favour of approval voting by clicking the link, but I note that it is particularly appropriate when you are trying to select a person to fill a neutral role, like a non-executive President.
Term: Among other countries, terms of 4, 5, 6 or even 7 years are given, and usually a serving President may stand for re-election once but must then stand down, at least for one term. There seemed to be a consensus among republicans in 1999 that either a 4- or 5-year term would be appropriate, and that the "re-elect once only" rule was a good idea.
Unfortunately, an approach has become widespread among republicans of wanting to demonstrate that a republican constitution can be brought in by making "minimal" changes to the present Constitution - therefore all of the drafts referred to above say "executive power is vested in the President". If we are trying to create a republic with a non-executive President, to say this would be to invent a new constitutional lie. Constitutions should tell the truth about the way government works under them. Since the current constitution tells a lie about the exercise of executive power, to make a minimal change to our institutions we need to make slightly more than minimal changes to the text of the Constitution.
I am not suggesting that these countries have set precedents which we need to follow exactly. Some of them, indeed, show some residual signs of the English idea that the monarch rules with the "advice" of the Ministers. They all include some Articles that seem to be giving the President pretty wide discretionary powers, but then you find sections making it clear that the President must, at least in most matters, act on recommendations of the Government - see:
In case all of the express provisions about responsible government and the powers of Presidents and Ministers are not sufficient, the four precedents also all make it clear that the legislature controls the right of the government to raise and spend money - see this file. Of course, the US Constitution has a similar provision, but it also spells out a strict separation of power between the legislature and the executive, so when the President and the Congress differ over the budget they have to come to a compromise eventually. Where Ministers are allowed, or required, to be members of the legislature, giving the legislature control of the money gives them power over the executive government.
How we Might do it in Australia: I don't suggest that any of these precedents should be followed exactly, but as I said they show that it can be done. I suggest we should depart in respect of many of the details. We are long past the time when we need to play deferential games and pretend that the President is some sort of monarch, and then immediately contradict that with other sections that show who has the real power. As to the "reserve powers", there was much agonising at the Constitutional Convention as to whether these should, or even could, be codified - and then those who drafted the alteration proposed in 1999 simply said the President can exercise the reserve powers and those powers can continue to evolve. The Constitutions of Austria and Portugal, drafted to establish democratic parliamentary government after years of dictatorship, spell out the rules about government responsibility to the legislature and no confidence motions in detail. With a long tradition of understanding such things in this country, I suggest that all we need to do is say that governments are appointed and dismissed, and parliaments dissolved, according to the conventions of responsible government.
So for an Australian republican Constitution I suggest that we should simply spell out the following:
[No amendment is needed to spell out the parliamentary control of finance - it is already there, in sections 81 and 83.]
Here we already have sections (two of them - sections 5 and 28!) that say that the Governor-General can dissolve the House of Representatives, and section 57 that says there can be a double dissolution when the Hosues are deadlocked. This will generally be done on the advice of the Prime Minister, though perhaps one of the "reserve powers" is to dissolve the House without that advice. In the section above I have suggested that the republican constitution should say that the President can dissolve parliament according to the conventions of responsible government. [In 1975, John Kerr thought it so important to have a PM's advice before dissolving Parliament that he sacked the PM and appointed a new one who did not have the confidence of the House. I would have thought this was a worse breach of the conventions of responsible government than to dissolve Parliament without advice.]
Perhaps a more important issue, though conceptually separate from the matter of a republic, is whether the Parliament should have a fixed term. Allowing the PM to choose the date of an election arguably gives him an unfair advantage, and anything that gives the party in power an advantage over the opposition weakens constitutional government. We should consider introducing a fixed term - perhaps with provision for dissolution where no government can be formed - as part of any consitutional reform package.
A Council of State is an advisory body that must be consulted by the President before s/he exercises any of his/her significant constitutional functions. Presumably they have been created in some countries with a directly-elected President in case the people elect someone with limited knowledge of the constitutional conventions - a pop singer, TV star or footballer? - as President.
Of the "four precedents", Austria and Iceland have no Council of State. [Note that the "State Council" mentioned in the Constitution of Iceland, Art 16, is like the Executive Council in Australia or a State; ie, a place where the Ministers present their decisions to the President and he "rubber stamps" them.] For the approach in Ireland and Portugal see this file. I doubt that we need such a Council, but it may be a useful device to quell the exaggerated anxiety that some people feel about a directly-elected President (but, really, those people should simply read my Anti-Hysteria page).
In the "four precedent" countries (see this file) the constitutional drafters felt no need to provide for a quick way of dismissing the President. In Austria and Iceland the legislature may propose that the President should be dismissed, but this only becomes final if approved by the people at a referendum. In Ireland the President can be impeached for misbehaviour by the legislature (the charge is brought by one House and then must be approved by the other House). In Portugal, the President forfeits office if absent from the nation without leave, but otherwise only on conviction of an offence "committed in the performance of his or her duties". As far as I am aware, none of these provisions have ever been used.
It seems to me that the Portuguese precedent is worth following - if the President is to be dismissed for misbehaviour, this should only be after conviction in a court of law (and if s/he is to be dismissed for incapacity there should be a finding by a competent tribunal). Of course, one might expect provision for the President to stand down while the matter is being tried. Since this process could take time, this provides a stronger argument for having a Deputy ready to step into the President's shoes.