It is harder to remove an American president from office than an Australian prime minister.
Following the 5 November 2024 election, President-elect Donald Trump will return to office as only the second person to hold the presidency in two non-consecutive terms.
Unsurprisingly, this was a controversial result. That was to be expected, regardless of who won. But one of the biggest complaints that could be raised only by Trump’s opponents is his status as the first president to have been convicted of felonies, though not sentenced, prior to his election.
However, the US Constitution contains only three limitations on who can be president, none of them relating to criminal matters, and only one way of removing them from office.
In contrast, the Australian Constitution has built-in means for changing the requirements for holding office.
Professor Anne Twomey once observed that more recent constitutions from Commonwealth nations tend to include more specific information about the powers and responsibilities of the Governor-General and the Prime Minister, and their relationship. In contrast, the older constitutions of Australia, Canada, and New Zealand rely much more on unwritten constitutional conventions.
In some ways, that also applies to the elected members of the Australian and US governments.
The US Constitution was written before the British set foot on Australian soil. In many ways, it was also the first modern democracy, with the possible exception of the Dutch Republic.
This means that the requirements for being the President or a member of the House of Representatives and Senate are very limited.
To be elected to the House of Representatives, a candidate must be 25 and have been a citizen for 6 years. For the Senate, those figures are updated to 30 years of age and 9 years of citizenship. In both cases, they must live in the correct state.
A presidential candidate must be 35. An additional requirement is that a candidate must be a ‘natural-born citizen,’ meaning a citizen by birth. Because of this, the period of citizenship changes to having been a resident of the US for at least 14 years.
The only way to forcibly remove the president is by impeachment by the House of Representatives and trial by the Senate. This requires the cooperation of both branches of the legislature, something that is becoming more difficult with the hyper-political state of play in the US right now.
Donald Trump was not the first person to be impeached in office, but not convicted by the Senate; Bill Clinton beat him to it.
On the other hand, it did allow Eugene Debs, an anti-war socialist who was imprisoned for sedition, to run for president from his prison cell in 1920.
In the 1890s, the framers of the Australian Constitution looked to the United States for inspiration. This included organising the House of Representatives and the Senate. But they also had the ability to reflect on over a century of US history, so decided to make some changes.
Section 34 initially required members of the House of Representatives to be 21, have the right to vote in Parliament, and have lived in Australia for at least three years. A member must also have been a British subject who was natural-born or naturalised for at least five years in the UK or any part of Australia.
Section 16 applies section 34 to the Senate, and by constitutional convention, those requirements apply to the prime minister as a member of Parliament.
Once in Parliament, a politician can be disqualified under section 44 for several reasons. The most infamous is (i) foreign allegiance/dual citizenship.
But the big difference that sets Australia apart from the US is the opening five words of section 34: ‘Until the Parliament otherwise provides.’ Parliament can change the requirements to vote.
The US requirements are set in stone; the only way to change them is through an amendment. Knowing how hard it is to get an amendment passed in a referendum in Australia, it is probably a good thing that section 34 allows it to change with legislation.
The flexibility of the Australian model under section 34 was highlighted just one year later, when the Commonwealth Franchise Act 1902 (Cth) granted women the right to vote. However, that doesn’t mean the system is perfect. The 1967 referendum is the best example of this.
It took until 1920 for the Nineteenth Amendment to give American women the right to vote, after 50 years of fighting.
Section 44(ii) allows politicians to be removed from office if they commit treason or are convicted of criminal offences in any Australian jurisdiction and sentenced to at least one year behind bars. The scope of section 44(ii) appears to be broader than its US counterpart.
The older US system, which does not include any aspect of section 44, has instead developed the doctrine of ‘presidential immunity.’
In Trump v United States, handed down on 1 July 2024, a majority of the Supreme Court of the United States ruled that Donald Trump has ‘absolute immunity’ for all acts done in his presidential and constitutional capacity, and has a presumption of immunity in all other official acts.
A second Supreme Court appeal is expected after Trump's sentencing hearing on 26 November 2024 to determine whether he can actually be sentenced after becoming president-elect. It's also worth pointing out that the president is not totally immune, as they can be subpoenaed.
The question answered here isn’t whether Trump should be removed from office. Rather, what is clear is that, if someone wants to remove Trump from office for felony convictions, the US model makes it a lot harder to do so than the Australian model, to the point that it is almost impossible to remove him without any change.
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