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Section 51(xxvi) of the Australian Constitution originally read,

The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws:

I hope I'm not being insensitive here but why is this racist? Am I misunderstanding this? I thought that Aboriginal peoples did actually want to govern themselves at that time. If anything, I would think that it is kind of positive special treatment, (not that there is anything wrong with that).

However, from what I've seen this was seen to be an equality win for the Aboriginal people. Sorry in advance if I've offended anyone, I'm only trying to understand.

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EDIT: It was correctly noted that this answer provided no references. To that end I offer this excerpt from the first of the sources listed at the bottom of this answer...

Benevolent racism has a long history, even into slavery, a time in which some whites felt they were doing blacks a favor by controlling them and “providing” for them. More recently, it involves a seemingly positive attitude toward blacks that then opposes any social reforms like affirmative action as belittling blacks and working against their natural progress as citizens (Esposito & Romano, 2014). Benevolent sexism holds the same basic idea: Rather than sexism being based on anti-woman attitudes, it can also be supported by putting women “on a pedestal,” characterizing them as “pure creatures who ought to be protected, supported, and adored, and whose love is necessary to make a man complete” (Glick & Fiske, 2001, p. 109). Extensive research has linked such benevolent ideas about women to negative outcomes for them.

I encourage the readers to explore the concept of "benevolent racism" and its closely related sibling "benevolent sexism". At the bottom of this post are some good starting points on this important topic.


ANSWER: I am from the United States and know almost nothing of Australian history or law but I do know that any law or policy which is based primarily on race, benevolent or not, is by definition racist.

Merriam-Webster provides the following:

Definition of racism

1 : a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race

2a : a doctrine or political program based on the assumption of racism and designed to execute its principles

b : a political or social system founded on racism

3 : racial prejudice or discrimination

Laws based on race create an "otherness" that separates the one group from the other for no reason other than the color of skin. As the definition above shows, racism presumes "human traits and capacities" are controlled by race, such as the idea that one race is smarter (thus another is less intelligent) or that one race is more violent (thus another is more self-controlled). This logic is ultimately designed to make one race superior to another.

The questioner states:

If anything, I would think that it is kind of positive special treatment, (not that there is anything wrong with that).

but the questioner is in error to think there is nothing wrong with this. Benevolence of this kind implies that the one race needs paternalistic oversight, that such a race is "childlike" and incapable of mature self-determination. It implies that people of the target race cannot function effectively unless people of another race help them. Such an attitude is fraught with arrogance and disrespect for individual abilities.

Consider the parallel of gender discrimination which has held that women are the weaker sex and need men to protect them and provide for them, or perhaps the case of a younger sibling who's older sibling continues to tell them how to run their lives even after they are over the age of thirty. Such benevolent help is always wrong because it perpetuates the superiority of one and the inferiority of another.

There are, in a few rare cases, laws that are designed to help "balance" a previous imbalance. Hiring quotas for industries that refused to hire non-whites or preferential treatment policies for college admissions. Such laws are still racist even with the best of intentions and ultimately must be abolished once their stated goal is accomplished or else they can become crippling instead of supporting.


  • It doesn't have to be. It could sometimes be, to protect the rights of those people. For example, India is a country with a majority Hindu population. But, its strictly SECULAR constitution, which is same for all religions has some special marriage laws that are according to the Quran, only for Muslims. This exception was made in 1947, after the country was decolonized, in order to make them(the Muslims) feel inclusive. So,it doesn't always mean that special laws, imply discrimination... – ThePerson Oct 1 '18 at 7:51
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    This answer claims not knowing anything about the topic at hand, and then ... proceeds to attempt to answer this topic without any reliance on references. There is no way of knowing if this is the actual motivations or if it's just making assumptions. – user11249 Oct 1 '18 at 8:48
  • @ThePerson - religiously based laws are not racist, they are defined by beliefs, not genetics. Muslim believers come in every race and while historically sourcing from the Middle East today they enjoy huge populations of Chinese, African, and Caucasian adherents. – O.M.Y. Oct 2 '18 at 5:25
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As noted clearly in the Wikipedia article about Section 51(xxvi) of the Australian constitution, the purpose of the section was within the broader enumeration of federal powers, to allow the commonwealth to discriminate against everyone except Aboriginal (and thus presumedly Torres Strait Islander) peoples.

This of course meant that the power to discriminate against Aboriginal and Torres Strait Islander peoples was reserved for state governments. Who murdered them, incarcerated them, kept them in apartheid shanty towns, made them qualify for "dog licences" to be treated as a human being.

s 51 (xxvi) was about the commonwealth's power to attack Chinese Australians or Kanaka Australians; and the States' powers to attack Aboriginal peoples and Torres Strait Islanders.

No self government, or treaties respecting self-government, were recognised by the Australian States or Commonwealth in 1901 or 1967. Today land councils have few powers, and these derived not from autonomous power or past treaty newly honoured or newly negotiated treaty, but instead from invader government power.

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