Racial classification today is commonplace; people routinely catalogue each other as members of this or that race, and seem to assume that everyone can be thus classified
Bernard Boxill, “Introduction” in Bernard Boxill, editor, Race and Racism (Oxford: Oxford University Press, 2001), 1.
While Boxill’s statement is seemingly self-evident and benign, it’s very ordinariness conceals something much more sinister. Once we begin routinely cataloguing one another we leave open the prospect that this cataloguing can lead to other less desirable outcomes such as discrimination, marginalisation and outright racism. Once those undesirable outcomes of cataloguing each other become accepted within the community at large, they become part of the very fabric of society; the fabric that society’s mores and laws are cut from.
When looking at the impacts discrimination, marginalisation and racism have on a society’s mores and laws it is crucial to remember that embedded within every legal case is a story—about winners and losers, about justice and injustice, and about heroes and villains. How this story is told is a function of who is doing the telling. One narrator’s triumphal account is another’s story of devastating defeat. The villain in one narrative is the hero in another. The line between justice and injustice unavoidably turns on perspective. All of this is to say, legal cases are never ‘just there’. Like any narrative, they are always already the product of representational choices.
When we look at the legal case story of every Indigenous Australian who has been tried, convicted or exonerated by the invader’s legal system since 1788 we must, of necessity, take account of the intricacies of race and gender within the broader structural dynamics of conquest and colonialism and how this has affected the outcome of those stories.
Race/racism is not something that can easily be rendered ‘irrelevant’ or neutralized. As Angela Harris writes, that “for race crits, racism is not only a matter of individual prejudice and everyday practice, rather race is deeply imbedded in language, perceptions, and perhaps even ‘reason’ itself.” Race scholars embrace the notion that “racism is an inescapable feature of western culture, and race is always already inscribed in the most innocent and neutral-seeming concepts.” Even ideas like ‘truth’ and ‘justice’ themselves are open to interrogations that reveal their complicity with power.
When we look at the current debate underway in Australia about constitutional reform and recognition of Australia’s indigenous people as the first inhabitants of this land, what we are really debating is what language and perceptions the birth record of modern Australia should contain. As with all invaders and colonisers who seek to build a nation from the fruits of their conquests and thefts, formal citizenship and sovereignty along with the race–conscious remedies to both these issues take centre stage.
Let’s make no mistake about it, Australia’s founding fathers aspired to build a white nation and the Australian Constitution reflects those aspirations. Race/racism is deeply embedded in the language and perceptions of the entire foundation document of modern Australia. This language and the perceptions that flow from it have caused untold suffering to not only every Indigenous Australian family, but too many migrant and refugee families as well. Instead of tinkering around the edges of a document that is not only the product of a foreign (British) Parliament, but contains within it the seeds of the racial intolerance that is so prevalent in modern Australian society, perhaps it’s time to start again and create a constitution that is relevant to all Australians.
The reverberations of the aspirations of Australia’s founding fathers to build a white nation are felt to this day. These reverberations are most strongly felt in the areas of immigration and indigenous policy. What Australia’s founding document says in very clear and concise language is “we don’t want those people here!” The language and perceptions contained in modern Australia’s foundation document are clear and work to encourage racist feelings amongst those within the ‘in group’ – migrants from Europe, especially those from the so called British Iles. Without doubt, this language and the perceptions that flow from it foment the racism of those who think, “we don’t want them here, they should all go” and encourages governments to turn the screws ever tighter and tighter on immigration, especially that component of immigration comprising refugees.
Eventually there came a point when it was virtually impossible to turn the screw any tighter. When Australia reached that point, Australian’s started questioning their political leader’s claims to be able to do, or promises to do, that. It was at this point, that Australia’s so called political leaders deliberately channelled the public hostility their false claims had generated against them to people of certain races; to hostility towards Australia’s two perceived bogeymen, asylum seekers and Indigenous Australians. In order to further their aims they turned the propaganda machine on asylum seekers, rejoicing in the reduction in the number of claims for asylum. How did they achieve this reduction? Not by diminishing the persecution from which the refugees were fleeing. No. By attempting to prevent them from even ever getting here to lodge such claims!
The popular demand has now become “reduce the number of asylum seekers admitted.” In reality, the demands to “reduce the number of asylum seekers admitted” is nothing more than a transformation of the popular demand, “reduce Islamic immigration” or reduce immigration which is understood to be Islamic immigration. Australia’s politicians have neatly switched this hostility which they helped to generate away from themselves, towards people from the Middle East, from Afghanistan, and so on. By sleight of hand they switched this hostility to the asylum seekers themselves. That’s a very good way of becoming popular. Hitler knew that. You identify some group as the enemy, and then you promise to do everything to keep the enemy out and people vote for you!
It’s the language of race/racism enshrined in modern Australia’s foundation document that has allowed people like John Howard to win elections based on blatant lies and propaganda about Australia being swamped by asylum seekers. Indeed, weren’t the ‘settlers’ who followed in the wake of the establishment of the British overseas jail at Sydney Cove in 1788 asylum seekers? At best they were economic refugees, at worst they were the dregs of the British Empire, the refuse who could not be accommodated elsewhere in the vast Empire the British carved out for themselves at everyone else’s expense. It was the decedents of this cavalcade of convicts, economic refugees and refuse, who in drafting the Australian Constitution designed a document intended to ensure their exalted position within a white Australia. The last resort of the untalented and gift-less is racism. If for no other reason they can consider themselves gifted because of their European heritage which allows them to equate whiteness with fitness for citizenship and self-governance.
In terms of Australia’s other bogeymen, its indigenous population, research on official practices of ethnic, racial and national categorization beginning with studies of colonial and post-colonial societies pointed out how colonial rule transformed antecedent patterns of social identification and shaped patterns of ethnic mobilization through the identification, labelling and differential treatment of ethnic groups. More recent studies, giving more sustained attention to systems of classification and practices of categorization themselves have shown how rulers’ practices of naming, counting, and classifying affected the self-understandings, social organization and political claims of indigenous populations.
A common thread in studies of everyday classification is the recognition that ordinary actors usually have considerable room to manoeuvre in the ways in which they use even highly institutionalized and powerfully sanctioned categories. They are often able to deploy such categories strategically, bending them to their own purposes; or they may adhere nominally to official classificatory schemes while infusing official categories with alternative, unofficial meanings.
Infusing official categories with alternative, unofficial meanings isn’t just meaningless waffle spouting forth from the mouths of leftie do-gooders; it has practical everyday consequences for Australia’s Indigenous population. The Victorian Aboriginal Justice Agreement (1999) (“VAJA”) makes reference to racism and discrimination as factors contributing to the over-representation of Indigenous people in the criminal justice system.
Institutional racism is typically initiated by persons of relative power and authority who see themselves as ‘just doing their job’ in accordance with supposedly fair and universal criteria.
(VAJA, 1999, 14).
A 1998 inquiry into institutional racism in the United Kingdom’s Metropolitan Police Service provides an in depth exploration of the terminology. Amongst the most variegated is this offered by Dr Ben Bowling, cited in the report:
Institutional racism is the process by which people from ethnic minorities are systematically discriminated against by a range of public and private bodies. If the result or outcome of established laws, customs or practices is racially discriminatory, then institutional racism can be said to have occurred. Although racism is rooted in widely shared attitudes, values and beliefs, discrimination can occur irrespective of the intent of the individuals who carry out the activities of the institution. Thus policing can be discriminatory without this being acknowledged or recognised, and in the face of official policies geared to removal of discrimination. However, some discrimination practices are the product of uncritical rather than unconscious racism. That is, practices with a racist outcome are not engaged in without the actor’s knowledge; rather, the actor has failed to consider the consequences of his or her actions for people from ethnic minorities. Institutional racism affects the routine ways in which ethnic minorities are treated in their capacity as employees, witnesses, victims, suspects and members of the general public.
Violent Racism: Victimisation, Policing and Social Context, July 1998. (Paras 21-22, pp 3-4).
Here Bowling addresses the essential component of the institutional racism concept: the extent to which it focuses attention on the outcomes of activities and processes rather than intentions and attitudes, and the degree to which it reflects an organisational failure to understand the impact of policies and procedures on minority groups.
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) had previously voiced similar concerns. Innovations since the RCIADIC have been premised on the assumption that Aboriginal people are disadvantaged in their dealings with the criminal justice system. While Indigenous people in Australia are amongst the most imprisoned people in the world, they have remained essentially marginal to a criminal justice system that is essentially structurally Eurocentric in philosophy and practice. The ongoing overrepresentation of Indigenous Australians in the criminal justice system cannot be accounted for solely in terms of the prejudices of individuals within the system, or greater levels of offending by Indigenous people – although these may play an accompanying role. They are rather a reflection of the multiplied layered patterns of disadvantage and extreme forms of marginalisation experienced by Aboriginal people.
Those “underlying issues” identified by the RCIADIC continue to influence the life chances and life experiences of Aboriginal people, who remain disadvantaged across a range of crucial indicators including health, housing, education and employment. Aboriginal groups in the community believe that racism in the justice system is inextricably connected to broader forms of discrimination. Indeed, many Aboriginal people with whom I have discussed these matters, particularly in rural areas, identified issues such as homelessness, unemployment and lack of access to education and training as factors directly contributing to involvement in the system and particularly, to recidivism.
Systemic racism in this sense is not about whether individuals hold racist views, but about the uneven impact of laws, policies or practices. Put another way, systemic racism can to some extent be measured by outcomes and results rather than intentions. Policies might not be racist in intent, but might have racist outcomes. It may be for example, that innovations that are beneficial to the majority do not meet the needs of the minority. This may be the case when (even well intentioned reforms) are “difference blind” and fail to take account of cultural factors, leading to outcomes that reinforce, rather than reduce inequality: criminologists refer to these as the “unintended consequences” of intervention. Indigenous Australians are very much over-represented in Australian prison populations, with imprisonment rates that are around 12 times those of the rest of the Australian population. Despite making up less than three per cent of the overall Australian population, Indigenous people make up 40 per cent of those imprisoned for assault offences. Rates of over-representation are even higher in juvenile detention, with a 10-17 year old Indigenous person being around 24 times more likely to be in detention than a non-Indigenous person of the same age.
“Difference blind” is political double speak designed to hide the ugly reality of prejudice and the unattained aspirations of Australia’s founding fathers to turn Australia into a white nation. Those unattained aspirations of Australia’s founding fathers, set forth in modern Australia’s foundation document by both word and perception are not things that can be removed by a strike through here or an addition there; the stain of racism has permeated the entire Australian Constitution. Instead of tinkering around the edges, perhaps it’s time for a total rethink on what Australia is and what it means to be Australian in all its varying hues and creeds.
 Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 Cal. L.
Rev. 741, 751 (1994).
 Id. at 743
 The variability and context dependency of practical categorization is not limited to the domain of ethnicity. In modern societies, officially sanctioned classificatory schemes are available for numerous organizational fields. Yet practitioners within these fields develop their own practical, “folk” taxonomies that guide them in performing their everyday tasks, as in the case of emergency physicians (Robert Dingwall, “Categorizationi n Accident Departments:’ Good’ Patients,’ Bad’ Pa-tients, and ‘Children,’ ” Sociology of Health and Illness 5 (1983): 127-148) or U.S. immigration inspectors (Janet A. Gilboy, “Deciding Who Gets In: Decisionmak-ing by Immigration Inspectors,” Law & Society Review 25/3 [1991): 571-599). Similarly,a lthoughm odern states have highlyd evelopeda nd codified schemesf or the classification of occupations and social classes (S. R. S. Szreter, “The Official Representation of Social Classes in Britain, the United States, and France: the Professional Model and ‘Les Cadres’,” Comparative Studies in Society and History 35 (1993): 285-317), everyday occupational and class categorizations are variable and context-dependent (Luc Boltanski and Laurent Th6venot, “Finding One’s Way in Social Space: A Study Based on Games,”S ocial Science Information2 2 (1983): 631-680).
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