Shane Jones is one of the most powerful men in New Zealand. He is the minister in charge of three portfolios, and associate minister, in three others. His words matter.
In a recent Newshub interview on the topic of immigration he stated:
"What sort of country do you want? We were originally settled through the Treaty of Waitangi. The indigenous people coming with their Pacific roots, the Māori people, then the Anglos came, and in my case, the Croatians came. If you want another million, two million, three million people, we should debate it and there should be a mandate, rather than opening up the options, unfettered, and everyone comes here from New Delhi. I don't like that idea at all. I think the number of students that have come from India have ruined many of those institutions."
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Jones is correct to be concerned about immigration and New Zealand. Every New Zealand citizen should be interested in such issues. However, to suggest that immigration should be based around ethnicity and certain people should be excluded because of their heritage, is wrong.
New Zealand's historical record in this area is disturbing. The discrimination against people of Asian ethnicity, and Chinese in particular, was strong from 1881 and increased over the following decades. In early 2002, then Prime Minister Helen Clark apologised to the Chinese people, expressing "sorrow and regret" for those impacted by the discriminatory laws and policies.
Racism through immigration policy was not restricted to the Chinese. Various New Zealand governments wanted the same against people coming from the Indian subcontinent, but were always restricted as India (unlike China) was a British colony and the imperial regime would not tolerate discrimination against those in the same British family.
However, after World War I, the government felt more confident in asserting that Kiwis wanted a "white New Zealand" and pushed further against allowing Indian immigrants in. Those that were resident were subject to a distasteful period of racism.
Thereafter, immigration was heavily orientated towards permitting entrants from "desirable" countries, to the large-scale exclusion of others.
This only really stopped with the changes in the law in 1987 and 1991. The focus changed to immigrants via a points-based system with regards to skills and economic needs of the country, as well as the age of the applicant and having family members already in the country.
Whether Jones wants to take New Zealand back to ethnicity-based restrictions within immigration in the future is unknown. What is more pressing is whether his words have violated any rules.
The particular trip-wire is the 1993 Human Rights Act. This specifies in article 61, dealing with racial disharmony, that it is unlawful for anyone to broadcast words that are, "threatening, abusive or insulting ... likely to excite hostility or bring into contempt any group of persons who may be coming to or in New Zealand on the ground of the colour, race or ethnic origins of that group of persons".
This problem escalates to being a criminal offence, under article 131 of the same law, of inciting racial disharmony. This occurs if their broadcast intends, "to excite hostility or ill will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons" and their words are of a type, "likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons".
The difference between the charges, and whether it should be a civil or a criminal matter, is the intention of the person speaking and specific types of words used.
Whether the words of the minister breach either, or neither, of article 61 or article 131 is a matter that only the courts should decide.
Both the Race Relations Commissioner Meng Foon and the Chief Human Rights Commissioner Paul Hunt should, if they believe that a breach of law has occurred, test the matter in court, rather than just telling the minister to stop.
There are advantages to referring this to the courts. An independent judicial assessment of existing law would take the partisan nature out of the stone-throwing that those in Beehive are so good at. This is particularly important because government ministers should be held to higher standards than normal citizens. Their examples matter.
There is currently a push to develop new hate-speech laws because it is believed by some that the current laws in this area are inadequate – that assumption should be tested.
Finally, post-March 15 2019, we must all lift our game and question more than we did in the past.
• Alexander Gillespie is a professor of law at Waikato University.