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

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posted on 2023-05-20, 17:15 authored by McMillan, M, Martin ClarkMartin Clark
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.

History

Publication title

Griffith Law Review

Volume

24

Pagination

106-126

ISSN

1038-3441

Department/School

Faculty of Law

Publisher

Taylor & Francis Australasia

Place of publication

Australia

Rights 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: http://www.tandfonline.com/10.1080/10383441.2015.1048044

Repository Status

  • Open

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