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Making sense of indigeneity, aboriginality and identity: race as a Constitutional conundrum since 1983


McMillan, M and Clark, M, Making sense of indigeneity, aboriginality and identity: race as a Constitutional conundrum since 1983, Griffith Law Review, 24, (1) pp. 106-126. ISSN 1038-3441 (2015) [Refereed Article]


Copyright Statement

© 2015 Griffith University. This is an Accepted Manuscript of an article published by Taylor & Francis in Griffith Law Review on 24 August 2015, available online:

DOI: doi:10.1080/10383441.2015.1048044


This article is a conversation and encounter between an Indigenous and a non-Indigenous constitutional law scholar attempting to make sense of ‘race’ as it is written and interpreted in the Australian Constitution through a close re-reading of the Tasmanian Dams Case and the race power in s 51(xxvi). The conversation is intended to perform a conduct of jurisprudence in which the experience of law and the interpretation of law as a matter of doctrine are brought into relation. We first try to make sense of the significance of 1967 as a constitutional moment shifting the meaning of race in the Constitution, before turning to a close reading of the judgments in Tasmanian Dams on the race power. We argue that through analysis of these judgments it is possible to understand better the constrictions of Australian canons of constitutional interpretation as applied to race, with its focus on ‘special’ characteristics, heritage and culture. We also argue that a close reading of Tasmanian Dams offers a good starting place from which to question the possibilities of what meaning race might carry if the political and social experiences of Indigenous peoples with the Constitution are joined to more easily accepted interpretative conventions.

Item Details

Item Type:Refereed Article
Keywords:Tasmanian Dam Case, Indigenous law, races power, heritage and culture
Research Division:Indigenous Studies
Research Group:Aboriginal and Torres Strait Islander peoples, society and community
Research Field:Aboriginal and Torres Strait Islander peoples and the law
Objective Division:Expanding Knowledge
Objective Group:Expanding knowledge
Objective Field:Expanding knowledge in law and legal studies
UTAS Author:Clark, M (Mr Martin Clark)
ID Code:140569
Year Published:2015
Deposited By:Law
Deposited On:2020-08-27
Last Modified:2021-05-24
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