Apr 22, 2013

"Is New Zealand a racist country?"

That’s the moot for this week’s episode of the Vote. John Tamihere and Damon Salesa will argue the affirmative and Mai Chen and Phil Goff will argue the negative.

Is X, Y or Z racist? That’s often a subjective question. A white male from the Wellington business community isn’t going to experience racism in the same manner or to the same degree as, say, a brown woman from the LGBT community. Racism is an experience.

It’s difficult to argue objectively. Is Maori overrepresentation in crime, health and a suite of other measures a result of contemporary racism, the collateral effect of historic racism or something else entirely? Do the Maori seats ameliorate historic political underrepresentation or did they and do they entrench political advantage? Do English language requirements favour (largely) white immigrants from the Anglosphere or are language requirements a necessary control?

It’s a matter of perspective. Is the essence of racism found in impact or intention? Impact infers that racism is structural; intention infers that racism is more ordinary. The international community accepts that guarantees of legal equality don’t mean “identity of treatment”.* On that basis, none of the examples above are racist. At New Zealand law “not all distinctions (i.e. different treatment based on race, gender and so on)… will be discriminatory”.** So, the essence of discrimination lays in negative impact. On that basis, language requirements that negatively affect, say, Indonesian immigrants might be racist regardless of intention. Joking about curry munchers, Asian drivers and niggas wouldn’t be caught under the definition of discrimination at law (neither internationally nor domestically). Problematic.

I remain a little sceptical about the moot. Racism is low hanging fruit. However, last month’s episode was great and the panel (mainly Salesa and Chen) is tops. I hope the show urges New Zealanders to think more deeply about racism and what it means. For me, racism falls into two categories: personal and political. Personal racism is experience: being called this or that, having assumptions made about you and so on. Political racism is structural: politicians, community leaders and so on arguing that race isn’t a proxy for disadvantage, MPs enacting laws that unfairly disadvantage an already disadvantaged group and so on.

Thomas Jefferson was right to argue that “there is nothing more unequal, than the equal treatment of unequal people” and Babasaheb (one of the architects of the Indian Constitution and an underrated thinker imo) was right to make the distinction between “equality in law” and “equality in fact”. Will New Zealanders accept that? Or does it even matter?***

*See Quilter v Attorney-General (1998) 1 NZLR 623 CA at page 561 per Keith J 
**See page 532 per Thomas J
***The Supreme Court of the United States in Bowers v Hardwick (1986) held that minority rights are not subject to the principle of majority rules. The Supreme Court considered it illiberal and contrary to the basic democratic assumption that majorities aren't always right. I like to keep that in mind when people argue that this or that thing Maori should be abolished because the majority said so. Indigenous and minority rights are inherent (see the UN Declaration on the Rights of Indigenous People) and Maori rights are strengthened by Treaty guarentees. Something to think about.  


  1. Can't we just all agree that the discussion of discrimination in Quilter is unhelpful, and that any differential treatment is discrimination, but that the question of legal importance is whether that differential treatment/discrimination is a reasonable limit on the right to be free from discrimination, in the same way as other rights.

    Courts seem to have no difficulty with accepting that child porn laws are a limit on freedom of discrimination, but one that is justified, can't they also just say "this is discrimination, but it is justified"?

    1. If we're trying to define discrimination legally, Quilter isn't definitive. However, for guidance on the essence and character of discrimination I think Quilter is pretty helpful.

      As a matter of s19 BORA intepretation, I prefer the Tipping approach (i.e. any differential treatment is discrimination). S5 should do the justification work. Defining the breach of s19 narrowly (i.e. any distinction that isn't justified) means that the claimant has to build arguments against justification into the way they frame the s19 breach. That seems to impose a pretty big burden when the burden of justification should always fall on the AG.

      Having said that, the international jurisprudence seems split. If I remember correctly the Canadian approach is to build justifications (or lack of) into how the breach is framed rather than relying on s1 to do all of the heavy lifting. Discrimination is defined more narrowly.

  2. If you’re a fully subscribed pure member of the British Diaspora you will never experience racism. Can you recollect the last news article that was “Pakeha this and Pakeha that” unlike negative Maori articles that happen consistently on a weekly basis.Good post Morgan my opinion on this subject is not so moderate. I think their is a racist war in New Zealand between the Treaty hate movement and Maori.

    1. There is a seedy underbelly of racism and hate - cloaked in "racial equality" and similar language. It's a load of horseshit and it stinks to the high heavens. However, it's driven by a puny minority. I think most New Zealanders aren't racist. A lot of New Zealanders engage in and perpetuate accidental racism (e.g. stereotyping or, as a more specific example, calling thrifty people "Jews") but I believe that most New Zealanders do so because it is engrained in society rather than a reflection of their disdain for other races. Of course, there are some New Zealanders who just hate other races - but they're not a majority.

    2. If racism is ingrained in society to that degree that it comes out spontaneously, isn't that about as good a definition of 'New Zealand is racist' as one could hope for?

    3. The moot is problematic. Do we take "is NZ a racist country" as asking whether a majority of NZders are racist or does it ask something different like is there systemic/institutional/etc racism in NZ?. Part of the fun (is that the right word?) of the debate will be to twist the moot to suit.

      Say we take the "is NZ society racist" angle, then we get into questions of whether we need intention to be racist and so on. It's such a difficult question to grapple with. I don't think I have all of the answers.

    4. I think the only really robust answer to the question 'is New Zealand racist' is that not everyone can agree on the definitions of 'New Zealand' and 'racist'. 'Is' is pretty uncontroversial, thankfully. (Sorry, Bill Clinton)

      I will say though, if, for a country to be racist, a majority of the people living there need to be self-conscious racists, I don't think there's ever been a racist country in the history of the human race.

  3. The racism in New Zealand starts with Treaty hate and within the Treaty hate industry business is booming. People have formed careers on Treaty hate John Ansell, Muriel Newman and many more.

  4. My observations as someone who is of mixed ethnic background, is that there is a racist bent common across most sectors of our community. The easiest to identify is the prejudice against asian immigrants (against a lack of such for, say, British ones) and Maori. Racism in this country presents itself in three forms, out-an-out Prosser style-stuff, institutional racism, and the issue-framing of subjects with an ethnic component (Treaty issues being the classic case). Where concepts which are pretty uncontestable, like the right to seek resolution through the courts (F/S ; Ngati Apa v A-G), if there's an ethnic component certain groups will frame it as a purely ethnic-issue -- even when the primary issue is something quite apart. Instituional racism is similarly disheartening, in that signficant evidence exists of a problem (like your post the other day, Morgan re; Police), but there is an aversion to declare causality because the status-quo is comfortable for the majority (despite the gross inefficiency such prejudice leads to in terms of, say, Vote Justice expenditure.

    The Prosser-style racism is the stuff I run into everyday, and actually is the kind which least concerns me - generally I find it's the result of ignorance (which can be remedied easily) and / or a void in that individual's sense of self and thus a complex they hold regarding other cultures. On this last point, I would have to say there is no clear group who are guilty; my european friends are just as bad as my maori, p.i. or asian ones. While it's an undesirable feature of the New Zealand psyche, I also think it's more a result of the other two than the cause.

  5. nz is not hatefull but we can learn to love each other more
    and make society better

  6. Interesting this one. I'm from a reasonable sized whanau. A number of my siblings are brown and some of us are 'whiter' in skin colour (me). Pakeha say things to me that they would never say to my brown skinned siblings. I hate the 'r' word and very rarely use it. But, and with sadness, I have to admit to myself that racisim is alive and well in this country.

    I am of a right wing persuasion and generally a lot of what is passed off as racism is just plain not taking the opportunity by our people. But I can't pretend there is no racism. It is there and my right wing lot are not saintly. I suppose I can rest more comfortably with my political choice when I remind myself that the so-called friend of Maori, the Labour Party, sold us out in 2004 with their racist F&S legislation. It was politically expedient and I will never forgive the 'hater's and wreckers' comment.

    My encounter with racism is this nonsense idea from Pakeha (predominantly) that argue we get preferential treatment. Actually, on reflection, they are right. We Maori do get preferential treatment. We get to preferentially:
    - Have our lands stripped from us, our economic base destroyed, and our social fabric torn asunder and not three generations later be told 'to get over it'
    - be told that the feeble attempts to redress the gross injustice heaped on Maori for at least 3 generations are too much and that we are causing social division
    - Have decisions to marry Pakeha thrown back in our faces as having caused us to no longer be Maori
    - be arrested disproporionally
    - be more likely to appear in court than our Pakeha brothers for the SAME offense
    - be more likely to be imprisoned for the SAME offense
    - be given longer prison sentences for the SAME offense
    - be far less likely to be promoted to management even with the same qualifications
    - Not feature on most directorships in this country (e.g. only 5% of board memebers on sporting bodies for goodness sake)
    - be told we are not experienced enough and then ensure the opportunity to get experienced is denied through not being experienced enough (ad nausem right)
    - be more unemployed than our pakeha people
    - be sneeringly told that there is an inherent lazy streak in our people hence our lack of employment
    - be told by our Iwi organisations that it's about 'best person for the job' (look at the number of pakeha on our asset management boards) and then throw our hands up in horror at the appalling Maori employment statistics
    - be represented in all the worst social, health, and economic statistics in this country

    If this preference I would agree with Pakeha that we need less of it.

    Hey pakeha, stop preferring us. It hurts!

  7. were used to be in the 1880s, 1920s ,30s because of fascist groups
    defiantly not now though



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