Rights, Race and Culture

This chapter examines provisions of the constitution which refer to race, the most important of which is the s 51(xxvi) races powerRaces power, which confers on the Commonwealth parliament the power to enact legislation relating to people of any race. Given that the concept of race is now generally accepted as being without scientific validity, the chapter proposes that the races powerRaces power be replaced by a power to enact laws relating to Indigenous people. The chapter then discusses the inadequacies of protection against racial discrimination under Australian law and recommends that a right not to be discriminated against on grounds of race, colour or ethnic or national origin be included in the constitution and that the right be subject to an exception in relation to measures designed to remedy past or current disadvantage. The chapter also rebuts arguments by constitutional conservatives against a constitutionalRightsdiscrimination, prohibition of prohibition of discriminationDiscrimination. Finally, the chapter notes the importance of the protection of Indigenous cultural rights and proposes the inclusion in the constitution of a right on the part of Indigenous people to the exercise of their cultureRightsculture to, which would include a clause imposing a positive obligation on the state to provide reasonable resources to preserve and advance Indigenous culture. This clause would have an immediate and dramatic effect on the political and material position of Indigenous peoples because, being justiciable, it would enable them to approach the courts to seek protection of and financial support for Indigenous culture, thereby achieving many of the objectives of proponents of a treaty while overcoming the enforcement problems inherent in treaties.