Speech to the Waikato Conference: 26 July 2014
Race has no place in the law

Jamie Whyte, ACT Party Leader

David Cunliffe recently apologised to a Women’s Refuge symposium:

“I don't often say it – I'm sorry for being a man … because family and sexual violence is overwhelmingly perpetrated by men.”

The Prime Minister accused Cunliffe of being insincere. Maybe he was.

Or maybe not. The apology conforms to Labour party thinking. Whereas we in ACT believe in personal responsibility, the Labour party believes in collective responsibility.

Those who believe in collective responsibility see people not so much as individuals but as members of groups: men and women, gays and heterosexuals, the rich and the poor, Maori and Pakeha.

For example, the Labour Party has a rule that half the people on their list must be women. This is intended to ensure equal parliamentary representation for women.

Labour believes that a man cannot represent a woman in parliament, even if she votes for him. And that a woman automatically represents other women, even if they did not vote for her or disagree with her. All that matters is group membership.

Similarly, Cunliffe believes he is responsible for sexual violence, even though has never perpetrated any, simply because he is a man.

This “identity politics” comes easily to many people. It is a way of thinking with ancient roots in mankind’s tribal history.

Nevertheless, it is ugly. It is the mindset that lies behind such obscenities as collective punishment and clan feuding.

Overcoming this way of thinking has been one of the great achievements of modern civilisation. The most important part of this achievement is the principle that everyone is equal before the law.

* * * * *

Everybody knows the image of Lady Justice in her Grecian robes holding the scales of justice while blindfolded. But many do not know what the blindfold is supposed to stop her seeing.

The answer is the identity of the person being judged. Justice requires that she pay no heed to who it is she is judging – she will make the same decision whether you are a man or a woman, a lord or a peasant, black or white.

Alas, the principle that the law should be impartial has never been fully embraced in New Zealand. Even today, after any number of equal rights movements, New Zealand law makes a citizen’s rights depend on her race.

The reparations made to iwi by the Waitangi Tribunal are NOT an example of this. The Treaty of Waitangi gave Maori property rights over the land they occupied. Many violations of these rights followed. The remedies provided by the Waitangi Tribunal are not a case of race-based favouritism. They are recognition of property rights and, therefore, something that we in ACT wholeheartedly support.

Nevertheless, there are many areas where New Zealand law fails to be properly blind to race.

The most obvious example is the persistence of the Maori electoral roll and Maori Seats, which guarantee parliamentary representation on the basis of race. This mistake is now being repeated in the Auckland Super City, where council decisions must be run past a Maori advisory board.

Many people have opinions about what other people should do with their property. Under the Resource Management Act, how much weight your opinion carries depends on your race. If you are Maori, you have a say on these matters that others lack.

Some state run or state directed organisations openly practice race-based favouritism. I know a woman who has raised children by two fathers, one Pakeha and the other Maori. If her Pakeha son wants to attend law school at Auckland University, he will have to get much higher grades than her Maori son.

I will not go on. There is no question that the law in New Zealand is not racially impartial.

The question is why race-based laws are tolerated, not just by the Maori and Internet-Mana Parties, but by National, Labour and the Greens.

I suspect the reason is confusion about privilege.

Maori are legally privileged in New Zealand today, just as the Aristocracy were legally privileged in pre-revolutionary France.

But, of course, in our ordinary use of the word, it is absurd to say that Maori are privileged. The average life expectancy of Maori is significantly lower than Pakeha and Asian. Average incomes are lower. Average educational achievement is lower.

Legal privilege offends people less when the beneficiaries are not materially privileged, when they are generally poorer than those at a legal disadvantage.

Of course, many Maori are better off, better educated and in better health than many Pakeha. And these are often the Maori who take most advantage of their legal privileges, especially those offered by universities and by political bodies.

Alas, people are inclined to think in generalities, and they fail to notice that it is the materially privileged individuals in the legally privileged group who capture the benefits. They think of Maori as generally materially disadvantaged; and they see their legal privileges as a form of compensation.

But the principle of legal equality is far more important than any redistributive or compensatory impulses that people may have. It is not some philosophical nicety to be discarded because you feel guilty about what people with the same skin pigment as you did 150 or 200 years ago.

* * * * *

Why is the principle of legal equality so important?

Many people will feel no need to have it explained. To many of us, it seems no more than obvious that the law should not privilege people from one race over people from other races.

Indeed, many on the left of New Zealand politics once held this position. John Minto once led a movement devoted to fighting the legal privileges of whites in South Africa. He is now a candidate for the Internet-Mana Party, an organisation dedicated to extending racial privilege in New Zealand. If he ever believed in the principle of legal equality, he has abandoned it now.

And not just John Minto and the Internet-Mana Party. As I have said, National, Labour and the Greens – the biggest three parties in New Zealand – all support explicitly race-based laws.

Apparently, many people do need to be reminded why the principle of legal equality is important.

It is important because, without it, society becomes a racket.

When people are equal before the law, they can get ahead only by offering other people goods or services that they value. We are all playing to the same rules, and we do well only if we “deliver the goods”. This promotes not only economic growth and prosperity but civility. It forces people to attend to the preferences of others.

Where people enjoy legal privilege, by contrast, they can get ahead without doing anything of value for other people. Because the system is rigged in their favour, they don’t need to “deliver the goods”.

Suppose, for example, that the government decided that Japanese women deserved a legal privilege. They should be allowed to erect barriers across the roads they live on. Anyone wanting to proceed down the road must negotiate with these women to get the barriers lifted.

This would provide Japanese women with an opportunity to make easy money by charging people a fee to lift their barriers. It would thereby divert them from productive occupations. It would drive up the cost of travelling around the city, as people either took longer routes or paid the fees. And it would create feelings of resentment towards Japanese women.

This may sound fanciful. But it is precisely the situation that the Resource Management Act (RMA) has created with regard to resource consents and iwi. If you want to proceed with developing land near iwi, you may well have to pay iwi for permission to proceed. That easy money diverts Maori from more productive activity, drives up the cost of developing land and creates resentment towards Maori.

* * * * *

Nor does legal privilege do Maori any good over the long-run.

Allow me another analogy. Imagine that SANZAR, the body that administers the Super 15, decided that the Blues deserved a legal privilege. Whereas all the other teams will continue to earn 5 points for a try, the Blues will earn 10.

This would benefit Blues players over the short-term. They would win many more games than they now do. But giving the Blues this advantage in the rules would reduce their incentive to work hard on their skills and fitness. After a while, standards of play at the Blues would decline. Fewer Blues players would be selected for the All Blacks.

Return to those half-brothers I mentioned earlier: one Pakeha who will need an “A” to get into law school, one Maori who will need only a “C”. Which one is more likely to work hard at school? Which one is more likely to make the most of his potential?

Many Maori identify strongly with their culture. I have Maori friends who have learnt to speak Maori as adults, and they have been enriched by the experience. I see in them, and in other Maori I meet, a connection with their ancestry and with places in New Zealand lacked by many of us whose ancestors came here more recently – a connection that I envy.

But this should be a matter of complete indifference to the law. There are many cultures in New Zealand. People identify with all sorts of things. Some New Zealanders identify with their sexuality, some with their profession, some with their religion, some with their political beliefs and some – perhaps most – with nothing in particular.

The government should not select some of these “identities” as special and confer legal advantages on them. Culture should not be nationalised.

It is not only those in the non-favoured cultures who have reason to resist. Those in the nationalised culture have the most to lose.

Healthy cultures are dynamic. They evolve and adapt to the changing world. Becoming an “official”, government-sponsored culture is stultifying. What counts as Maori culture and worthy of state protection or promotion must be decided by politicians and bureaucrats under the influence of those who lobby them.

Just as Maori students do not benefit from being given an easy ride, Maori culture risks being crippled by its entanglement with the state. It risks becoming a quaint relic of the 19th century, good for tourists and “Maori leaders” on the take but of no relevance to young Maori of the 21st century.

* * * * *

Race-based favouritism is doing Maori no real good.

But even if it were, ACT would still oppose it. Because society should not be a racket, no matter who the beneficiaries are – be they men (who continue to enjoy legal privilege in many countries), the landed nobility or people of indigenous descent. Law-makers must be impervious to the special pleading of those who wish to set aside the principle of legal equality.

Alas, politicians from the other parties have not merely listened but acquiesced. New Zealand is awash with race-based law.

After the coming election, ACT’s MPs will work to have all race-based laws repealed. The precise mechanism or process must be decided once a government is formed. But the particular process followed is not as important as the goal.

There is no place for race in the law.

And there is no place for race-based laws in New Zealand.

ENDS

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