Published in the Journal of Australian Indigenous Studies (2013)
This study examines the dismissal of race and by implication racism within judicial interpretation of fairness in the context of racial discrimination in Australian sport. It is claimed that this hinges on an evaluation of fairness that is paradoxical.
McNamara’s (1998) construct of evaluative racism is the impetus for developing the argument that fair process, the cornerstone for evaluating racial discrimination, has shifted from a determination of what was done (treated unfairly) to what was not done (not treated unfairly). It is also claimed that fairness is normalising since it excuses institution and that this relies not only the on the depoliticising of race and racism but also as McNamara (1998) points out on restrictive processes in law and sport. Through analysis of cases of racial discrimination, this study finds that adverse evaluations reconstitute the disciplining of the ‘other’. Procedural fairness is needed to give voice to the subjectivities of those vilified and to evaluate discrimination in light of their experience.