Should the Powers of the President be Codified?

Read literally, the Australian Constitution confers enormous powers on the Governor General. He can appoint and dismiss Ministers, dissolve Parliament, grant or refuse consent to legislation and even call out the Army in his capacity as Commander in Chief.

Of course the real power of the Governor General is much, much less than it appears. Unwritten rules of constitutional practice, known as "constitutional conventions" effectively limit his or her ability to act independently of advice to the extreme circumstances mentioned above. But is it good enough to leave these important rules of government to the unwritten, and often contentious, world of convention?

At present the Governor General is appointed and can be removed by the Prime Minister of the day. Were a Governor General tempted to assert real executive power he or she would be promptly removed by the Prime Minister. But what if the President could not be removed by the Prime Minister, but instead had a secure tenure in office? What if the President owed his job not to Prime Ministerial favour, but the majority vote of the Australian people?

It is fair to say that while there are certainly good common sense arguments for spelling out the constitutional conventions in the Constitution today, those arguments become very compelling indeed if the President could not be removed by the Government of the day, or owed his or her election to a direct vote of the people.

Without wanting to suggest that codification is not needed in a "minimal" republic, we have dealt with the powers in this way. In the models where the President is not directly elected we have simply used the formula employed in 1999 whereby the constitutional conventions were deemed to continue in a republic. This "incorporation by reference" begs the question of course as to the complete content of the conventions. On the other hand, it allows them to develop and evolve in the future as they have in the past.

In the models where the President is directly elected we have proposed a complete codification of the constitutional conventions and have employed the code set out in the Report of the Republic Advisory Committee in 1993.

The discussion about codification is, however, an important and valuable one. There is a strong case for codifying the conventions even in a minimal republic, just as there is a strong case for codifying the conventions today.