Mark McMillan

Invisibility and the Politics of Reconciliation in Australia: Keeping Conflict in View

Abstract Is reconciliation a process of masking conflict in order for it to be eradicated from the view, consciousness and responsibility of the state? Why do we focus on solutions rather than managing and embracing the issues that generate ‘conflict’? This article draws on the politics of reconciliation debates in Australia to highlight the dangers that emanate from political efforts to bring about reconciliation merely as a mode of conflict resolution. We contend that an uncritical advocacy of reconciliation risks losing sight of the centrality of conflict to the maintenance of identity and contestation around racial and cultural inequalities. We ground this in a discussion of the experiences of societies like South Africa and Northern Ireland. The implications of a conflict-free approach to reconciliation for Australia are profound because it neglects the experiences and concerns of Indigenous people. A conflict-free approach to reconciliation ignores the conflict inherent in Australian society due to the experience of structural injustice and Indigenous inequality. Alternatively, a political narrative that keeps conflict in view potentially provides greater legitimacy and is more successful in highlighting inequalities around race and identity than approaches focused on harmonious social and racial relations. These concerns are addressed through a discussion of contemporary debates on ‘changing’ and ‘reforming’ the Australian constitution to ‘recognize’ Indigenous Australians.

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

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.

Law, Identity and Dispossession — the Half-Caste Act of 1886 and Contemporary Legal Definitions of Indigeneity in Australia

As Aboriginal and Torres Strait Islander Social Justice Commissioner Michael Dodson stated in his 1994 Wentworth lecture, ‘[s]ince first contact with the colonisers of this country, Aboriginal and Torres Strait Islander people have been the object of a continual flow of commentary and classification. Since their first intrusive gaze, colonising cultures have had a preoccupation with observing, analysing, studying, classifying and labelling Aborigines and Aboriginality.1 In the previous chapters, dispossession has largely been seen in terms of land. This book is also fundamentally about self-identity and the refusal of settler governments to recognize the way that people define themselves. This refusal has material repercussions of various kinds, most acutely the loss of land. In this chapter, we address another dispossession, that of the right to self-identity, examining the role of colonial legal definitions in this dispossession. The colonial preoccupation with defining Aboriginal identity in legislation is evident in the number of laws containing definitions of Aboriginal persons.2 Since the arrival of the British in Australia in 1788 colonial and, after Federation in 1901, State and Federal governments have enacted over 70 separate pieces of legislation containing definitions of Indigeneity.3 The purpose of these definitions has almost invariably been for the management and assimilation of Aboriginal people.