Jamie Whyte's speech insisting "race has no place in the law" ignores the fact that the law has never been blind to race, let alone wealth, history and any number of other things

US Supreme Court Chief Justice John Roberts likes to say that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race", a sentiment ACT leader Jamie Whyte would applaud going by his Waikato conference speech this past weekend.

Arguing against that view, Justice Sonia Sotomayor has said, in fact, “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Those two points of view are indicative of where the debate is around ethnic equality and affirmative action, both in America and here in New Zealand.

One view looks at the law and sees just the individual here and now, the other sees a culture in the context of its history.

The fact Whyte, Roberts and others of that view come a cropper on is that the earth did not explode into life yesterday, our country was not born this morning. If it was, Whyte's argument for a purely blind justice would have merit.

Reading the speech, Whyte has been careful not to argue that Maori "privilege" has not meant Maori are "materially" better off (more on that in a minute, but he's wrong)). And he also says that the Waitangi Tribunal is exempt from his criticism because it exists to give redress for an abuse of property rights, something ACT supports (seeing the Treaty of Waitangi as purely a property rights document ignores its place in our constitution and is also wrong-headed).

But it's his take on blind justice that I have the most beef with. Look at this segment from the speech:

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 principle of Lady Justice being blind to all who stand before her is a wonderful premise. But we don't all stand before her equal. Injustices of the past, such as racist laws, land taken by settler governments and other sins of colonisation ripple into the present day. A fair and just system does not blind itself to that fact, but looks the past squarely in the face and acknowledges that no one is an island, but rather comes with legacies and baggage that he or she is not indivdually responsible for.

So justice demands that we tilt the present to balance up the past. It gives opportunity to those who don't have it in part because Lady Justice's blindfold has slipped many times before.

That's why affirmative action, such as places for Maori at universties, is right and fair. And it works. Whyte suggests that the legal privileges haven't meant material gain, but he's wrong in that. Since the Maori renaissance of the early 1970s and the arrival of affirmative action, many Maori social statistics (while still behind Pakeha) have improved. Life expectancy is catching up, education rates have improved, and so on). 

I doubt Whyte would pretend that Lady Justice has always been blind. He may even be honest enough to accept that he and perhaps his forebears have (directly or indirectly) benefited from that historic lack of blindness.

As Chimamanda Ngozi Adichie, in her novel Americanah, writes:

Many whites with the same qualifications but Negro skin would not have the jobs they have. But don’t ever say this publicly. Let your white friend say it. If you make the mistake of saying this, you will be accused of a curiosity called “playing the race card.” Nobody quite knows what this means. … If the “slavery was so long ago” thing comes up, have your white friend say that lots of white folks are still inheriting money that their families made a hundred years ago. So if that legacy lives, why not the legacy of slavery?

For slavery, insert colonisation (I'm localising New Zealand's experience of collective racism, not trying to make a proportionate comparision between the two). Which raises the question for Whyte, why would he take that benefits of non-blindness for himself but deny it to others? Don't you repay the debt?

Oh, and Whyte says we are individuals, not collectives and we cannot take responsibility for the wider groups we belong to (ethnicity, gender etc). Which is true to a point. But Maori were discriminated against and legally penalised as a collective. So it's logical that their grievances are addressed collectively as well.

But even if we ignore the past, as Whyte seems willing to do, why the focus on ethnicity alone?

If he's prepared to take a stance "race-based favouritism" and privilege, what about other kinds of privilege? How far will ACT go in its commitment to equality before the law?

Because there are other privileges that make you more equal than others in the eyes of the law.

First, we've recently seen the Maori King's Korotangi Paki, avoid conviction in part because that would have made ascending the Kingitanga throne impossible (or so his lawyers claimed). The penalty would have been disproportionate to the crime. But that view ingrains in law the view that those who have more to lose will be handled more gently by Lady Justice. She is not blind to a person's status. So will ACT vow to change that principle of the lawl?

Second, the rich get better lawyers. Kim Dotcom can take his grievance against the Crown about the raid on his property through every court imaginable, can appeal repeatedly and have the best QCs in the country in his corner. Lady Justice is not blind to wealth. Will ACT vow that every burglar gets the skills of a QC and the chance to appeal on every ground available?

If not, why not? Whyte's opposition is based on principle, and if he's going to take the philosophical high ground then he has to be consistent. If his principle is that Lady Justice must be utterly blind, then race is just one of many areas he's going to have to tackle.

Yet, again, if we go along with Whyte and say that racial inequality before the law must be addressed as a priority, what's ACT's plan to counter the reality, as reported by Just Speak last year, that young Maori are more likely to get prosecuted than young Pakeha?

As reported by Radio New Zealand:

The group says the statistics reveal that for 14 specified types of offence Maori are more likely to end up in court.

In the most extreme example, 46% of Maori who were apprehended for dangerous or negligent acts were prosecuted compared to 9% of Pakeha.

Even the minister, Chester Borrows, said "the numbers may come down to young Maori not having as many options in the court process to avoid prosecution".

Which means, they get treated differently. According to ethnicity. Today.

The fact is, Lady Justice is always peering through and around her blindfold. As Dame Susan Devoy has said, it's "naive" to pretend otherwise.

Comments (13)

by Kat on July 30, 2014

Good on Dame Susan Devoy for quickly firing a broadside raising the very points you make here. Surely the people of Epsom must be tired of these Act idiots by now.

by Anne on July 30, 2014

Excellent post.

It's called blind ideology - blind to reality in all it's manifestations. Denial of man-made/ exacerbated  Climate Change is another example.

Yes Kat. Good on Dame Susan Devoy for speaking with such passion. And that comes from someone who criticised her appointment. It seems I was wrong.

by Che Nua on July 30, 2014
Che Nua

Jamie Whyte just sounds like another whingeing pom to me

by Rab McDowell on July 30, 2014
Rab McDowell

It is and always has been an imperfect world. So how do we redress those imperfections, particularly those of the past?
Tim demands that, if Whyte is going to take the philosophical high ground, then he has to be consistent.
But there are inconsistencies everywhere.
Tim says that justice demands that we tilt the present to balance up the past. That sounds reasonable. But how far and for how long? Does a hundred years of the blindfold slipping in one direction means that the blindfold must slip the other way and a further hundred years of affirmative action is required before justice is done?
Tim argues that affirmative action, such as places for Maori at universities, is right and fair but seems more equivocal about affirmative action on the other privileges, such as access to the law for the rich, that he identifies. He asks whether Whyte will change the law to address these but, if Tim is to be consistent, should he not be advocating for that himself.
Should a rich Maori receive affirmative action assistance for some things but have affirmative action applied against him for others?
And how do we tell when those scales in Lady Justice’s hand are finally level? I suspect that each of us will have a different view on that.
In his final comment Tim acknowledges that justice is never blind. Does that mean he can live with that as long as she is peering around the blindfold in a way that he approves?

by william blake on July 31, 2014
william blake

Anne, like you I was appalled by Dame Devoy's appointment as comissioner and she has done little since to change my view. Now she takes ACT policy and makes it front page news by decrying it, giving oxygen to the inflammatory speech. She may be between a rock and a hard place faced with such blatant right wing politics but  I question why is this the first time we have seen Devoy on the front page?

by Lee Churchman on July 31, 2014
Lee Churchman

At least Tim has an actual argument, unlike many of the respondants to Whyte's screed.

Yes, it is a reasonable response to view differential policies as compensation or corrections for initial inequalities (Will Kymlicka is probably the person to read on the matter). On the other hand, there is a reasonable debate to be had about whether the current remedies are the best available, and, more importantly, whether their ultimate consequences will lead to or entrench race based policies or differences. I personally don't think that we're that badly off regarding the former, and I've certainly witnessed a big jump in Maori academic achievement in my 20 or so years in higher ed.

But let's say we achieve parity or near parity in New Zealand. What then? I tend to the contractualist view that cultural beliefs are similar to religious beliefs and should be treated the same in public life. New Zealand certainly doesn't seem to be heading that way, and that's a worry for those of us who think that some form of liberal pluralism based on a social contract is the only justifiable form of governance. We can obviously acknowledge cultural dominance of the state in the past whilst seeking to eliminate it in the future.

So again, let's say we achieve parity or near parity in NZ in 50 years time. What should our society look like then?

by william blake on July 31, 2014
william blake

Ironic that Dr White is arguing against electoral favouritism when the National are doing just that for his party in Epsom.

by Katharine Moody on July 31, 2014
Katharine Moody

It also needs pointing out that things aren't necessarily equal in Maoridom either as gender discrimination is a serious social issue for Maori - whether this too is a consequence of colonisation;


or not - some aspects of tikanga present for our multi-cultural society legal/human rights issues associated with these gender-based rituals;


The second link being very relevent to Lee's view that cultural beliefs are similar to religious beliefs and should be treated the same in public life.

I've never been a fan of the 'principles of the Treaty of Waitangi' phrase as widely adopted in legislation - because of course these "principles" have had to be 'made up' - and we have three versions operating in law (the Waitangi Tribunal's, the Clark Labour Government's and the High Court's - correct me if I'm wrong). For me the Treaty words are the Treaty words - we need to settle the history honestly on which version is the most equitable/legitimate (meaning which one would most likely have been that which the majority of signatories would have been likely to sign up to).

I do also feel that Maori whakapapa and tikanga have a unique and precious status as our national taonga/heritage which accords the descendents a right to some form of true (i.e., not tokenistic) co-governance in New Zealand's future.  And, particularly in light of the recent abuses of executive power as demonstrated by this National government - I believe we also need to strengthen the checks and balances in our Parliamentary democracy. So far, I can't think of a better way than to establish a second house with membership being elected via the Maori roll (and of course the Maori seats would be dis-established in the House of Representatives). 


by stuart munro on July 31, 2014
stuart munro

Whyte was unwise to unite white conservative New Zealand and Maori against himself by starting a pissing contest with Devoy, he merely emphasizes his outsider status.

by william blake on July 31, 2014
william blake

It will be interesting to see John Key distancing himself from the ACT party the week they were formally made coalition partners. 

by Richard Aston on August 01, 2014
Richard Aston

William I think its more nuanced than the Nats wanting to distance themselves. As someone on the Hard News blog said "ACT branch of the National party is to give voice to the things the National party wants to do, but cannot risk saying for alienating the less rabid of their fan base"

Interesting idea no?


by Peggy Klimenko on August 01, 2014
Peggy Klimenko

As I listened to Jamie Whyte on Morning Report, it seemd to me that he sounds like a lot of former expats who've spent many years out of New Zealand. Such people aren't au fait with events in their absence which have influenced the prevailing political culture, and as a result they can sound out of touch, or deaf to the nuances of those aspects of the status quo which they're keen to change.

He was born here, but has spent long enough in the UK to have acquired a bit of an Oxbridge accent, I note.

With regard to the Maori seats, context is important; many years ago, I had the "begone with the Maori seats" debate with a former National party apparatchik. That person had no idea when the seats were established, or what the reasons were for their establishment. And I supect that Jamie Whyte may well be in the same position; he was either too young, or absent from New Zealand, during those crucial years when issues such as this were being vigorously debated - in some sectors of society at least.

Michael King wrote about this in his "Penguin History". Parliament instituted four seats in 1867. Part of the reason was the property qualification for voting then in force, which required individual title, while Maori property was held collectively. This meant that most Maori couldn't vote in general electorates. The Maori seats extended the franchise to all Maori men, thus circumventing the collective property-holding issues.

But the other reason was population size and ethnic makeup; had the number of seats reflected actual numbers of Maori (as the non-Maori ones did), they would have had 14 or 15, giving them real electoral clout vis a vis the much lower number of settlers at the time. The same would have been true, had all Maori been able to vote in the general electorates. So the seats also had the effect of constraining the Maori franchise, which helped to assuage Conservative opposition to it.

Furthermore, they were intended to be temporary only, until all Maori men had individual title to property. When it became clear that the individualisation of property title would take much longer than had been anticipated, they were kept in place, and eventually made permanent in 1876.

Whyte's argument for their abolition may well be principled, but it bumps up against the messiness of history. It's indisputable that the intentions driving their establishment weren't entirely benevolent; and the political results for Maori haven't been stellar. Had the counterfactual applied - that Maori had got the 14 or 15 seats that population numbers would have allowed - they'd have had, and would now have, considerably more political power and influence.

It seems to me that, although there was injustice in their establishment, there would be additional injustice in their abolition after all this time, unless Maori themselves - and only Maori - agreed to that path.

by Richard Aston on August 05, 2014
Richard Aston

Thanks for the background history Peggy.


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