for dic
the race power
51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -
(xxvi.) The people of any race, for whom it is deemed necessary to make special laws
And how special those laws can be.
The interpretation of the Constitution is a complicated affair, as constitutional interpretations usually are. In this case there are many differing views about whether the Constitution permits the Commonwealth to make legislation specifically disadvantaging a particular ‘race’, though they probably can (see here and here). (And for a very concise summary of the role of the 1967 referendum, I think this is broadly accurate.)
The federal government is getting around this question by claiming that, though it has put forward legislation which is to be applied on the basis of ‘race’, this legislation is not disadvantageous - indeed, apparently it is positive discrimination, hence definitely permitted.
That is, while particular measures may, for example, appear to reduce the power of particular, many, indigenous people over their own lives, over their land and income, the government is claiming that the aggregate and presumably long term effect of these measures will be to the benefit of indigenous people - and in the immediate these measures will protect some particular indigenous people, vis. the children to be saved from abuse. Apart from the children to be saved from immediate physical danger, what will this benefit be? Nothing less than the reconstitution of the terms of integration of indigenous people into capitalism and the state: normalisation of work, family, home, consumption. Based on socio-historically specific ideas of norm, of course. This is the goal which requires a period of extraordinary intervention into indigenous lives. We need a state of exception to attempt to finally erase the exceptional status of indigenous people within the state.
Now that’s good government. If only the South in the US had thought of that: Sure, we whip and lynch, and sure, only blacks, but this keeps them in line and helps prevent greater conflict which would cause even more suffering, and it keeps them working hard which is good for everyone, so really it is positive discrimination, it is for them that we make ourselves do these horrible things. And whips and rope aren’t cheap, you know.
thanks.
yeah, that’s the impresssion i was getting when doing a bit of reading before. do many other constitutions have similar ‘positive’ discrimination clauses with regard to race?
Comment by dic — August 12, 2007 @ 6:08 am
The race power didn’t start as a ‘positive discrimination’ clause, but quite tghe opposite - people only started to interpret it in that way after the 1967 referendum.
Comment by benjamin — August 12, 2007 @ 7:44 am
oh right. that’s pretty impressive.
We’re apartheid ready, are you?
Comment by dic — August 14, 2007 @ 1:39 am
speaking of doublespeak & “interpretations” do you know anything about how the fed govt. is defining “Indigenous” as a race? sometimes these things have glossaries & whatnot, but i couldn’t find nothing & it’d be nice to be able to find out who gets to bask in “positive discrimination” & who doesn’t…
Comment by sparx — August 15, 2007 @ 2:22 am
The legislation ain’t all targeting the same groups. Parts of it focuses on residents of named NT communities, even if they move, other parts focuses on everybody and yet other parts specifically target race. Here’s an example from the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007:
“Indigenous person means a person (including a child) who is (a) a person of the Aboriginal race of Australia; or (b) a descendant of an indigenous inhabitant of the Torres Strait Islands.”
This is from the section Bob Brown is banging on about where the Australian Crime Commission is re-targeted to also target any violent crime involving indigenous people (as victims or perpetrators or “involvement”).
Comment by influxus — August 15, 2007 @ 3:19 am
Which will certainly provide a nice thought whenever someone is arrested and the police are required to ask, as they have been for a long time at least in Victoria, whether one is Aboriginal or Torres Strait Islander. Originally a concession to concerns about police ‘insensitivity’ to indigenous people, such questions can now take on a more overtly threatening aspect of mandated institutionalised racial interrogation, with who-knows-what consequences for a ‘yes’ answer.
Comment by theoryoftheoffensive — August 15, 2007 @ 5:11 am