Julianne Schultz, author of The Idea of Australia (Images: Supplied)

Julianne Schultz, former publisher of Griffith Review, questions the Australian national identity and examines the historical shaping of the country in her new book, The Idea of Australia. In this edited extract, Schultz discusses the formulation of the Australian Constitution and how it influenced the lineaments of the nation today.

Patrick Keane is a justice of the High Court who likes to refer to the Australian Constitution as “a small brown bird”. These mythical creatures have flitted through High Court judgments for decades, but it is his way of contrasting it with the American bald eagle. That grew from a Declaration of Independence replete with lofty rhetoric — We the People .. all men are created equal — soaring high.

For a judge of the highest court in the land, whose job it is to interpret the founding document and resolve the most complex legal matters, this may seem somewhat pejorative. But he uses the image to underscore the understated modesty of the founding document. What others see as a lack of ambition, Justice Keane regards as evidence of caution that has served the nation well and encouraged political engagement. Imagine, he asks, if the values of the day had been incorporated into the Constitution? Rather than a declaration of equality, the racial prohibitions that became law in the first year of Federation may have been cast even more firmly in stone.

Rather than a grand document that embodied a unifying and uplifting idea of the first new nation of the new century, it was a prosaic, working rulebook. A guide that would regulate relations between the states and leave final legal authority in London. It lacked a definition of citizenship, universal suffrage, freedom of expression or movement, acknowledgement of the rights of those whose system of governance it categorically displaced or clarity about limits on the role of the executive. It was a small brown bird prepared for a fight.

The metaphor of a small brown bird is more powerful if you imagine it with actual feathers and wings — a real bird, rather than an abstract aid in a complex argument. I don’t know if Justice Keane had a particular bird in mind when he conjured the image. There are plenty to choose from: brown treecreepers, speckled warblers, brown quails, jacky winters, thornbills and more. Some are beautiful, others nondescript.

From where I sit in northern New South Wales there are several contenders, but only one delivers the full metaphorical promise. The guidebooks say that the noisy miner is grey. From my desk, as I watch the native honeyeaters soaring and squawking, feasting on nectar and bathing in the ponds I kindly provided for them, they look brown to me, with a fashionable but unlikely flash of yellow eyeshadow.

Visiting ornithologists first gave the noisy buthaibuthai an ancient Greek name in 1801. Since then, while more than 100 other native species disappeared, they thrived. They are aggressive and territorial, thrive in the margins, mob predators and form temporary alliances. They are braggards given to “flight displays, postural displays, and facial displays … chasing, pecking, fighting, scolding, and mobbing occur throughout the day, targeted at both intruders and colony members”. It could be argued that they embody so many Australian characteristics that they, not the emu, should be the national bird. The changes made to the environment in the past 200 years have suited the noisy miners. Now they are considered a threat to the environment, and scientists and environmentalists debate how they might be culled.

This stretches the judge’s metaphor beyond his intent. But it is a compelling image of the way powerful groups behave, always ready for a fight, even when all that is at stake is holding their ground, stalling.

Like the noisy miner’s greige plumage, it is hard to get excited about a document that begins: it may, where “expedient”, allow other colonies and queenly possessions to join, pending “the advice and consent of the Lords Spiritual and Temporal, and Commons”. The Commonwealth of Australia Constitution Act then reaches across time to give generations of royals the right to exercise authority in perpetuity. And in perpetuity it was cast, just like the thriving noisy miners.

Just how hard it was to change quickly became clear. Even in the decades immediately after Federation, when the debates were still fresh in the minds of voters, only two of sixteen amendments were approved. Over the 20th century, 44 amendments to the Constitution were put to the people, but only eight passed. Change requires a majority of voters in a majority of states, making the support of all the major parties essential.

Those amendments that found the approval of voters were generally technical — allowing concurrent elections and Territorians to vote in referendums, and adjusting the retirement age of judges — or designed to increase the power of the Commonwealth, especially over money. What should have been uncontroversial amendments proposed by the Hawke Labor government in the 1980s — to mandate four-year terms of Parliament, recognise local government in the Constitution, enable the states and Commonwealth to voluntarily interchange authority, ensure fair elections, and extend the right to trial by jury, freedom of religion and fair terms for property acquisition by government — were overwhelmingly defeated. None had the enthusiastic support of the Coalition. All would have been timely and enduring improvements that would have enhanced the quality of civic life in the nation.

The last referendum, the one that “broke the heart” of half the nation, was held in 1999. It followed the 1998 Constitutional Convention, the first held since 1977. A mix of appointed and elected delegates considered competing models for an Australian republic and a new constitutional preamble crafted by poet Les Murray and a less revered wordsmith, prime minister John Howard. Their preamble declared Australians valued “excellence, as well as fairness, independence and mateship”. It was widely ridiculed. The next iteration was not much better, and Les Murray distanced himself from it.

The minimalist republican model was supported by all the News Corp papers, with a nod to Rupert Murdoch’s youthful republicanism. Still, a narrow majority voted against recreating Australia as a republic, removing the queen as head of state and replacing her with a president appointed by a two-thirds majority of both houses of Parliament. An even larger majority disapproved of John Howard’s cynical attempt at a preamble to symbolically, but not substantively, acknowledge First Nations people. Les Murray joked “the Australian people had mercifully taken it out the back and shot it”.

The noisy miners prevailed again. It was a victory for tactical politics that maintained the status quo and fostered apathy by encouraging people to think they had little real capacity for input. It cynically revived the disinterest that had accompanied the debates in the 1890s. People were prepared to be persuaded that the system was not broken and didn’t need to be fixed — a bit like the adult child who doesn’t see the point of leaving home. In 1999 a newspaper headline got it in a few words: the battlers had given the republic the kiss of death. At the time, the novelist David Malouf sensed the trailing coat of history had been embraced by those discomfited by the changes over the previous decades. “‘No’ was not a vote for the queen, or for direct election,” he observed, “but a cry from the heart from those who do not feel like full participants in the new Australia.”

Public debate about change is now invariably cast in terms of impossibility, rather than about why evolution is essential for any living system to adapt and thrive. Had the 1980s amendments passed, Australia would now be a healthier organism. If a majority of people in a majority of states had voted for a republic, and ignored the cynical politics and lure of royal photos in glossy magazines that played them as fools, Australia would not look so obsequious on the world stage, still so mystifyingly beholden to the protection of Britain and the United States.

In the same period that Australians have resisted amending a document that few have read, hundreds of constitutions have been written around the world as nations formed, sloughing off the bonds of empire and reinventing themselves after war and catastrophe, and in response to changing norms. Most lasted on average only twelve years. This was not a mark of failure but a sign that they were adapting as their societies evolved. South Africa is the best example. The former British Dominion, an epicentre of racialism for decades, became an independent nation in 1996, with a new constitution fit for purpose in a very different world. It took years of struggle, argument, debate and commitment, enabled by an electorate that took its future seriously and found leaders who were prepared to imagine and act to make it possible.

Thomas Jefferson, one of the fathers of the US Constitution, famously argued at the time that it should not bind another generation. This sentiment was echoed by the most “dangerous” voice at the 1891 Constitutional Convention in Sydney that preceded the drafting on the Lucinda. Sir George Grey was the most experienced administrator and democratic leader at the meeting, having been governor of South Australia, the Cape Colony in South Africa, and New Zealand (twice), and as premier head of its government. At 78 he was also the oldest delegate, a man who had become more radical with age.

His participation had a liberalising effect on the convention and brought what Vance Palmer called “the breath of a more spacious world than the political one”. He argued for the principle of “one vote one value” so that the landowners would not be advantaged; stressed that the Constitution should not be so rigid, lest it hamper future generations; and proposed that the governor-general should be elected, so the head of state would be chosen by Australians, not imposed from London. Rather than heed his experience, other delegates patronised him and dismissed him as naive. The earnest provincial nationalists were infuriated by his insistence on going back to first principles about what the founding framework might represent.

This debate had been raging in the colonies for decades, often with the pugnacious John Dunmore Lang on stages and podiums winding up the audience. He was a larger-than-life character who played a crucial role in the settlement of Queensland, arranging for ships of English and German immigrants when the colony was still part of New South Wales. His name now fittingly adorns the football stadium in a noisy, sports-mad state.

Lang had migrated from Scotland in the early 1820s, and became Sydney’s first Presbyterian minister, actively involved in building churches and schools. The settlement was the ideal channel for his hyperactive nature, as the politician, editor and advocate for an independent Australasia pursued one vision after another. He was infuriated by English hypocrisy.

Lang was alert to the similarities between the shortcomings of colonial administration and the divorce note of complaint and grievance included in the American Declaration of Independence. He was inspired by California’s adoption of her own constitution in 1849. He raged that, “like common beggars, British colonists must take what is offered them by their betters and be thankful”.

Australians have been encouraged to think of their Constitution as one of the first in the world, but constitutions had become very fashionable over the preceding century, artefacts of increasingly literate societies. Two hundred and eight had been adopted by 1820, most with provisions for trial by jury, and for freedom of speech, assembly, religion, trade, movement and the press. By the time the bill that was to become Australia’s founding document made its way to the House of Commons, constitutions had been adopted in countries and states across North and South America, North Africa, Europe and Japan.

The men who later gathered on the Lucinda over Easter 1891, struggling with influenza and seasickness, crafted a document that was provincial, not republican. It was less a document of enlightened liberalism than one that, as Vance Palmer wrote decades later, “reflected the timidity and conservatism of an elderly generation of politicians who were primarily concerned with the interests of their own provinces”.

This is an edited extract of The Idea of Australia by Julianne Schultz, Allen & Unwin, RRP: $34.99, available now.