No society can make a perpetual constitution or even a perpetual law.
The earth belongs always to the living generation.
– Thomas Jefferson to James Madison, September 6, 1789
AUSTRALIANS LIVE UNDER a constitution that speaks only to the dead. Since its inception in 1901, the federal constitution has not figured greatly in explaining our identity or character.
We are a nation forged through remembering the human sacrifice and horror of war, a people whose most profound political instincts lie outside the words of our constitution. While we live under a written constitution, the values and principles of our democracy remain largely unwritten – truths embedded in the practice of daily life – truths we have yet to distil. If Australians can be said have a constitution in any real sense, it is an imaginary constitution. One comprised of scraps of myth and wishful thinking that bears little relation to the text of the document itself.
We might comfort ourselves with the thought that our traditional scepticism makes us too suspicious of grand and noble language to write a new constitution. Alternatively, we could see the quest to make the constitution more reflective of our democracy and society as one suited more to the late 18th century than the early years of the 21st century, as if now, in an age of information overload, we no longer have faith in the promise words can hold.
Yet to think in this way would not only be too simplistic, it would also overlook some of the fundamental changes in Australia's political culture in the 1990s. Since 1998, there has been considerable public interest in a new constitutional preamble. And it is here, in the first words of our constitution, that Australians have shown a willingness to embrace a more poetic expression of identity, particularly in relation to the land.
IN JUNE THIS year I was invited to speak on ABC Radio National's breakfast program, hosted by Peter Thompson. There was to be a half-hour discussion on the content of six new constitutional preambles sponsored and launched by the Australian Republican Movement (ARM). When I read the six draft preambles I was surprised. Each was written by a prominent Australian author – Peter Carey, Richard Flanagan, James Bradley, Delia Falconer, Dorothy Porter and Leah Purcell. But the authors were not the cause of my surprise. The association between Australian literary figures and writing a new preamble was not new. Together with other members of the Constitutional Commission's Advisory Committee on Individual and Democratic Rights, Thomas Keneally had tried as early as 1987 with these words: "Australia is a continent of immense extent, and unique in the world, demanding as our homeland our respect, devotion and wise management." Les Murray had also assisted another great wordsmith, the Prime Minister, John Howard, in penning a draft preamble in 1999. In each of the ARM preambles I could see evidence of something significant: explicit and poetic reference to the land. Each had tried to explain the depth of his or her attachment to Australia as country – as earth, sky, sea and light.
Peter Carey's speaks of our "fierce love of this land", hoping for an
Australia "indivisible beneath the Southern Cross". Leah Purcell asks that Australians "respect and acknowledge the land and its first peoples". Purcell's sentiments are echoed by Delia Falconer who writes of Australians "affirming our duty of care toward this ancient landscape and its creatures ... accepting our special status as an island continent, generous in expanse and heart, linked and looking outward to the ocean". Poet Dorothy Porter begins her preamble by reminding Australians of their good fortune:
We are fortunate to live and prosper in the expansive light of a unique and ancient continent. It is our duty and privilege as a people to nurture and protect this natural landscape as has been done for millennia by the indigenous Australians.
Two writers go to great lengths to evoke the spirit of place that they find so unique to Australia. Novelist James Bradley writes:
First and forever there is the land, the sea, the sky. It is from them that we are born, to them we shall return. It is to them that we pledge our allegiance first, and foremost, and in this allegiance assume the trust to care for them as they care for us.
In this same land, this same sea, this same sky that for countless generations were sacred to the Aboriginal peoples, who learned their rhythms, shaped them with fire and story, and drew from them their laws and customs ...
Tasmanian novelist Richard Flanagan attempts the same task, writing a creation story:
Yet leavened by the glory of this world cast as earth and sea, we came to see our own image as wind and light and dust, as tree and spinifex and coral, as animal and bird and fish ...
From the ancient painted gorges of the Fitzroy River to the ever-new rainbow of the Great Barrier Reef, from a Manly ferry at dusk to Uluru at dawn, from the many dreamings and many nightmares, from the rainbow serpent to the Burma Railway to Kuta Beach, we strove to make a nation of free and generous people united by a belief in liberty and truth.
When I read these words my first instinct was to see only their flaws. I laughed when my co-discussant on Radio National, Gerard Henderson, pointed out that it might be unwise to make reference to the Manly ferry in the constitution – what if it stopped running? Flanagan's Old Testament prose was also cinematic in its depiction of the land – language akin to a tourist brochure or a television advertisement to entice Europeans or Americans to Australia. While I admired Bradley's preamble as a piece of creative writing, my training in political science had me wondering how the High Court might find his attempt to emulate the Book of Genesis useful in interpreting the constitution.
As the first words of a constitution, the preamble explains the intention and rationale of the founders and lays down the fundamental principles on which the constitution is based. In almost every constitutional preamble these principles, grounded in the history of a particular nation state, are political or legal. Occasionally they stray into social and economic aspirations and rights. I wondered whether Bradley realised what he was doing. Writing that we are born from the land, sea and sky and that it is to them that we will return may well be a poetic exposition of our existential predicament – but what were these words doing in a preamble?
Equally, Dorothy Porter's reference to Australia's "expansive light" was affecting but what was the point of a constitutional preamble beginning by speaking of the light? At first blush, I found the six preambles moving, highly personal, even intimate, especially when read by the authors as they were that morning on Radio National. Yet while they were inspiring, I also found them fanciful. Then again, I thought, Australia could do with more fancy.
THE MORE I thought about these preambles over the next few weeks, I came to see their fanciful nature as positive. I also came to understand that they reflected something original about Australian thinking on the constitution that has been evident since the late 1990s. They were not the first draft preambles to include reference to Australia's land and environment. When I trawled through the preambles written since 1998 (and there are many) I saw that the land was a constant theme – land as place, land as history ("ancient" and "timeless"), land as the source of spirituality, land
as something sacred, land as home.
At the Constitutional Convention in 1998, republican Janet Holmes à Court, in a passionate address, insisted that Australians needed the "smell of eucalyptus" in the constitution, "the feel of red dust" and "swimming in the Australian sea". To which Geoff Gallop, now the Labor Premier of Western Australia, replied, "What about eating beef?" One week earlier, Democrat Senator Natasha Stott Despoja told fellow delegates at the convention that "we must put into our preamble the fact that we cherish, that we love, the great sky and land and sea of this great nation". Moira Rayner, a member of one of the subgroups that had worked on the text of a new preamble at the convention, said her group insisted on expanding the reference to "our unique and diverse land" "because we wanted to emphasise the environmental aspects of our care for the land – those responsibilities and trusts towards the land which the Aboriginal owners of the land had, for so many thousands of years, exercised until we came and changed things so much".
Delegates read preambles written by others that spoke of Australians being owned in spirit by the land. The more prosaic was represented by the convention's final recommendations, which suggested that "affirmation of respect for our unique land and the environment" be included. Yet throughout the convention debates and in so many other forums during the lead-up to the 1999 referendum on the republic – ATSIC, Women's Constitutional Conventions, the Constitutional Centenary Foundation's Preamble Quest in 1999 and the many newspaper features on the preamble that included preambles from prominent Australians and schoolchildren – reference to Australia's unique land and environment was the abiding theme.
NO OTHER NATION has a constitution preamble that seeks to explain its people's love of the land. No other nation has sought to distil the spirituality of country in constitutional language. Only the Russian preamble comes close with its reference to "honouring the memory of our ancestors, who have passed on to us love of and respect for our homeland". Many employ phrases such as "our land" or "our country" but they often do so in the context of explaining a struggle for independence or, in the case of the South African constitution, to "respect those who have worked to build and develop our country".
In this light Australians, without knowing, have been engaged in something quite extraordinary and novel. We may well become the first nation to adopt a constitutional preamble that expresses the uniqueness of its land, the poetics of place, as a source and inspiration for national unity.
Such is the sensibility of the draft preambles written since 1998. They concern themselves with the land as an animate and spiritual force, drawing on indigenous notions of caring for country, expressing love of the "ancient" and "unique" land and the duty of trust and responsibility we bear for future generations. Repeatedly, the need to "respect" and "protect" the environment comes through. The imagined preamble becomes a "moral charter" grounded in a sense of place – the very same place that is the site of the greatest moral dilemma in Australian history – the land that was taken without negotiation, treaty or consent from Aboriginal people.
This new constitutional language is not the sole property of the left-leaning "elite". It is interesting, for example, to look at the transcript of John Howard's press conference at Parliament House on March 23,1999, the day he released his first draft preamble for public comment:
Journalist: "What were the influences on you as one of the prime authors of the preamble?"
Howard: "Well, my own feeling about this country, the history, the contribution of the original Australians, the contribution of immigration, the sense of space that I've always felt about Australia and the impact that that has had and continues to have."
Howard's preamble included recognition of the prior occupation of Australia by Aborigines as well as the statement: "Our vast island continent has helped to shape the destiny of our commonwealth and the spirit of its people." By August 1999, with the release of the preamble that went to a national referendum in 1999, these words had disappeared. They were replaced with the need for Australians to be "mindful of our responsibility to protect our unique natural environment".
Howard might have used different words to those of Richard Flanagan or James Bradley but he was undertaking the same task. The desire to find the words that might express Australians' relationship with their land is felt across the political spectrum. What then are the origins of this newfound desire, this constitutional dreaming?
TO LAY THE explanation at the feet of the traditional role of bush mythology and the popular perception of the outback as the "real heart" of Australia would be too easy. Politics has played its role, particularly the politics of Aboriginal protest since the 1960s. The struggle for land rights, the High Court's Mabo decision in 1992, which exposed the lie of terra nullius, and the movement for reconciliation between Aboriginal and non-Aboriginal Australians begun in 1991, have all contributed.
The reconciliation process was built in part on the need for greater understanding of Aboriginal cultures. Through decades of Aboriginal political resistance, Australians have listened to the stories of Aborigines caring for their country since "time immemorial". We have come to understand Aboriginal cultures as those in which flesh, earth, sky and language are one, where everything is connected. These cultures are "timeless" not because they lie outside time but because they speak of the oneness of time. Their land is "homeland" and "belonging place" – a synthesis of ancestral history, spirituality and dreaming, a source of sustenance and ritual, law and ceremony – a land that is both life itself and life-giving. This is land that can never be "sold" because to do so would be to deny the sense of custodianship and obligation that is such an integral part of Aboriginal culture.
By emphasising the centrality of the land to any new constitutional preamble, perhaps non-Aboriginal Australians are also wishing to end the sense of alienation and exile that is embedded within their colonial experience. Home is no longer elsewhere. The mother country is here. Through Aboriginal people we have come to see the spiritual nature of the land and accept more openly the traditions of environmental sensitivity and protection that have always existed in European culture. This is an understanding unique to Australia and one we should strive to articulate in a new preamble. The Council for Aboriginal Reconciliation's "Declaration Towards Reconciliation", released in May 2000, attempted to do so in language that was also constitutional in tone:
Through understanding the spiritual relationship between the land and its first peoples, we share our future and live in harmony ... our hope is for a united Australia that respects this land of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity for all.
THE POLITICS OF reconciliation, however, is not the only catalyst of a new constitutional language in Australia. At the heart of the movement for a republic, there is also an implicit but nonetheless deep psychological need to address the issue of land.
The gradual dispossession of Aboriginal Australia occurred under the imprimatur of the Crown. Aboriginal land became Crown land. Aboriginal sovereignty was usurped by the sovereignty of the Crown, at least in the eyes of the invaders. While the sovereignty of the Crown allegedly afforded Aborigines protection, the description of all lands not under freehold title as "Crown land" was the most powerful reminder that those lands had been seized unlawfully, without treaty or negotiation.
To this day, the very words "Crown land" help to conceal the fact that the lands and waters of Australia belonged to Aborigines. Like an illusion created by a conjuror, Crown land denies the Aboriginality of this country, yet another reason that the declaration of an Australian republic must acknowledge that which the Crown has served to obscure. Speaking at the 1998 Constitutional Convention, the then chair of ATSIC, Gatjil Djerrkura, reminded Australians that it was for this reason that the republic and reconciliation were linked. A new republican preamble, he said, could become a powerful "symbol of reconciliation".
WITH THE EXPERIENCE of the past five years in mind, how might we best express our "love of this unique and ancient land" in a new preamble? Over the past decade there has been a flowering of environmental history in Australia and much of this new work carries profound insights into the way we have come to view the land and our place in it. I want to draw briefly on the work of three authors in particular as a means of understanding some
of the pitfalls we might avoid when making reference to the land in a new preamble.
The work of Tom Griffiths has shown how "the writing of Australian history has always been suffused with a sense of the land and its difference". But it also reminds us that we should be wary of describing the land as if nature lies "outside culture". In other words, we should not make the mistake of imagining the land in such a way that it becomes a "landscape without humans".
To borrow a phrase from Aboriginal English, I have often thought of Australians as "saltwater people", people who cling to the sea for their livelihood. Yet despite the fact that almost 90 per cent of Australians live on the coastal fringe, "the descriptive metaphors" used to imagine the land, as Tom Griffiths writes, are "about hearts and backs, but never heads and fronts". The land of the heart is so often imagined as non-urban, as if belonging to land could only mean belonging to "natural" landscape rather than to a street corner in our suburb or city. On an everyday level, Australians' deepest sense of the land is expressed through the national obsession with home ownership. How does this "dream" sit with our desire to care for the land?
If we are to include our desire to care for the land in a new preamble then we must find the words to make it clear that the land to which we refer is all our land – urban, suburban, rural and wilderness. Caring for land cannot be gazetted. There is little point in caring for the red centre if we fail to care for our backyards, our streets and our cities. Our environmental aesthetic must be holistic.
One of the groundbreaking works of Australian history in recent years is Tim Bonyhady's The Colonial Earth (Miegunyah Press, 2000). Bonyhady's work demonstrates that European culture in Australia has always carried traditions of environmental sensitivity and understanding. Since the second half of the 19th century, certain settlers increasingly referred to their new environment as a "heritage if not national estate". The "environmental aesthetic", says Bonyhady, is "deeply embedded in [our] culture". The popular stereotype of an avaricious European culture bent on nothing more than rape and pillage of the environment is not one that we would want to entrench, even if only by implication, in the preamble. Making reference to indigenous custodianship and caring for land should be linked with the responsibility and duty that all Australians now share.
SINCE EUROPEANS FIRST arrived in Australia they have found it difficult to find the words to describe their new environment. As exiles, they often remembered an idealised vision of their homeland, something akin to William Blake's vision of England in Jerusalem – a "green and pleasant land". Australia was a land that constantly failed to equal this vision, "the Default Country", in the words of lexicologist JM Arthur, who reveals the way in which so much of the settler's language perceived Australia as a "dysfunctional continent", a land that was "incomplete" "unusual" or "defective", a land against which the settler had to struggle. "What if the Default Country were finally banished from the language?" she asks. "Would this make a difference to the way Australians live in Australia?"
Perhaps a new preamble could answer Arthur's question by employing language that entailed a sense of acceptance of the land. Rather than forever trying to subdue the land, we might finally be able to show that we have learned to listen to the land.
Over the coming years, Australians have the opportunity to create a uniquely Australian constitutional language, one that is culturally specific to our own place and time. The failure of Howard's proposed preamble at the 1999 referendum should be seen as a failure of political negotiation and consultation rather than an indication that the electorate will not support a new preamble in the future.
Finding the right words to express the uniqueness of this land and the depth of our relationship with it could serve to promote a sense of popular ownership of the constitution. If the constitution touches ordinary Australians, if it speaks to the living and not to the dead, then the people are more likely to vote for it.
The desire of so many Australians to include reference to the land in a new preamble has been a means of taking the constitution beyond the material, the practical and the everyday. Perhaps this new constitutional language will supply the sense of mystery that monarchy once possessed. Perhaps it will also express something about our nature that can't be bought or traded.
The words we use will be both poetic and pragmatic, without hubris or sentimentality. That they will remain mere words and that we will always fall short of the promise they hold is true, but that is no reason to resile from the task of writing them.