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race
and ethnicity
This page considers identity and identity offences regarding
race and ethnicity.
It covers -
introduction
The past century demonstrated continuities with earlier
times in which there was 'social sorting' by the state
on the basis of 'race' or 'ethnicity' (and surrogates
such as religious affiliation), both of which are social
constructs rather than unique and immutable physical characteristics.
The notion of race as an (or 'the') identity offers insights
into the nature of law in totalitarian and liberal democratic
states. It also poses challenges for people who argue
that subversion of identity frameworks is necessarily
a bad thing.
Nazi Germany (and allies such as Romania and Italy) infamously
identified - and persecuted - people on the basis of race,
practice illustrated in works such as The Racial State:
Germany 1933-1945 (Cambridge: Cambridge Uni Press
1993) by Michael Burleigh & Wolfgang Wippermann.
In that environment people quite reasonably sought to
nullify sorting by for example illegally divesting themselves
of identifiers such as yellow stars and acquiring forged
identity documents, a process illustrated in The Forger:
An Extraordinary Story of Survival in Wartime Berlin
(New York: Da Capo 2008) by Cioma Schönhaus.
Some theorists have argued that racial sorting is integral
to modern states. One example is The Racial State
(Oxford: Blackwell 1992) by David Goldberg.
For much of last century the legal identity of some Australians
as 'Aboriginal' embodied denial of the vote. 'Stolen Generations'
litigation such as Cubillo v Commonwealth [2000]
FCA 1084 illustrated that identification as a 'part Aboriginal'
under the Aboriginals Ordinance 1918 (NT) was
sufficient for removal of a child.
Identification on the basis of ethnicity continues to
matter.
Section 3A of the Aboriginal Lands Act 1995 (Tas)
for example indicates that an Aboriginal Person for the
purposes of that Act is one who satisfies all three requirements
of a) aboriginal ancestry, b) self-identification as an
Aboriginal person and c) communal recognition by members
of the Aboriginal community. Law thus establishes two
identities that do not neatly coincide with physiology:
those people who meet the Act's requirements and those
who do not.
next page (age and
entitlement)
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