Last month a group of wāhine Māori gathered in solidarity after a Māori woman reported she was racially abused on Ōwairaka in Auckland. Indigenous human rights experts Tina Ngata, Dr Arama Rata and Dilwin Santos outline the foundations of racism in Aotearoa, and the structural changes needed. 

Warning: the following article contains racist language.

Under the Matariki new moon, on Ōwairaka maunga in Tāmaki Makaurau, wāhine Māori from across the country gathered for a potent political act. This act drew from the sacred strength of the women of this land to decry the scourges of racism, violence and aggression in Aotearoa. This was an act of solidarity with Ngahina Hohaia of Parihaka who had reported a hate crime committed against her on June 8 by another woman at Ōwairaka. Hohaia’s report outlined physical and verbal abuse – racialised obscenities that included the term “Black bitch” and targeted her moko kauwae (ancestral skin inscriptions). However, within two days of laying her complaint with the police, Hohaia was informed they would not press assault charges.

That a wahine Māori was insulted in Aotearoa is not remarkable – one need only read the online comment forums of most of our news sites or listen to paid media commentators to see that insulting Māori, or indeed anyone of colour, is normalised in our nation. White supremacist backlash against the recent calls for racial justice has also been noted for some months now. Nor is it, sadly, remarkable that the police have failed to act. Racism within our justice and corrections system has been researched, reported and discussed prominently in the media for some time now.

But against the backdrop of the Black Lives Matter movement, statue protests and the report into the Christchurch attacks, what makes this incident remarkable is the nature of the reported insult. Moko konohi (facial moko) are powerful visual signifiers of Māori cultural heritage and identity. In the context of Māori survival against the prolonged efforts of colonialism to erase us, moko konohi can also be seen as a declaration of the failure of colonialism. They are the counterpoint of colonial statues in the visual landscape of Aotearoa. The words “Black bitch” also intersect colonialism with anti-Blackness and misogyny. The Ōwairaka gathering was therefore an act of solidarity with all victims of racism and misogyny in Aotearoa, from the most authoritative voice of protection on this land: the voice of wāhine Māori.

Eruptions of racist violence are, in part, outcomes of an increase in misinformation and conspiracy theories that polarises our communities and causes people to shift along a spectrum of hate that starts at one end with everyday racism and continues to extremism and terrorism at the other. This spectrum of social hate is underpinned by heterosexism, ableism, transphobia, misogyny, white supremacism and settler colonialism. The correlation between a rise in anti-Asian racist attacks and Covid-19 conspiracy theories is further evidence that online hate speech provokes offline hate crime, and speaks to the need for broad-ranging preventative approaches to hate.

Later this year, the report into the Royal Commission of Inquiry into the Christchurch mosque attacks is due, which will likely include a recommendation for police to monitor hate crime. The inquiry has been criticised in the media around timeframes, inclusiveness, funding and transparency, and this week announced a third and final extension to November 26 this year. The report is also likely to expose the systemic bias across the police and security sector, which leads to the hyper-surveillance of racialised communities (Muslim communities in particular), and under-represents the threat of white supremacism.

It is inexcusable that calls to strengthen hate-crime monitoring and legislation prior to the Christchurch attacks were ignored. A counter-terrorism strategy that includes a work stream on racism and hate speech has since been released by the Department of the Prime Minister and Cabinet (DPMC). While this can be seen as a limited form of progress post-Christchurch, it is light on detail and limited in scope.

The inadequate police response to the Ōwairaka incident – despite the strong public interest and spotlight on racism achieved by the Black Lives Matter movement – exposes the need for changes to be made to how we handle hate crime in Aotearoa. The inability of police to identify, let alone monitor and respond to hate crime, is concerning, but only one part of the problem. Our legislation needs to provide better protection for victims of hate crime, as part of a wider strategy that recognises hate crime as a product of structural racism, not just the actions of individual “criminals”. As recommended by the United Nations, Aotearoa needs a national action plan to eliminate racial discrimination. This plan would help us, as a nation, to respond to hate crime more broadly. For it to be effective, it needs to include colonial racism, to overhaul the current legislation, and should include resourcing for community organisations to monitor and respond to hate crime, preventing it before it occurs.

Colonial racism is the basis of racism

Colonial racism is the foundation of racism in Aotearoa New Zealand. Beginning with the racist entitlement to claim Māori lives and land in the pursuit of imperial expansion, and extending to the racist presumption of authority to violate the Treaty of Waitangi with impunity, it is distinctly important in part because it is powered by economic privilege. While many forms of racism (for example, labour exploitation of migrant workers) have an economic dimension, the national economic dependency bound up in colonial racism makes it especially difficult to address from within a colonially racist system. For this reason, the history books often erase colonial racism in Aotearoa, and colonial agencies such as the police and courts, are poorly equipped to identify and respond to it. It is also the primary manifestation of white supremacy, upon which all other forms of white supremacy have been built. White nationalists must first erase Māori rights in order to cement their role as the arbiters of who does, or does not, belong in Aotearoa. If we wish to address Aotearoa racism at its roots, we must include colonial racism.

Hate crime and the law

No specific hate crime offences currently exist in New Zealand. However, the courts are required to consider “hostility towards a group of persons who have enduring common characteristics such as race, colour, nationality, religion, gender identity, sexual orientation, age or disability” as an aggravating factor in sentencing.

Our current legislative approach fails to protect communities who are the targets of hostility. The failure of police to press charges following the Ōwairaka incident is a clear example of why hateful motivations should be recorded and considered at every step of the justice process, not just during sentencing where, even given the most extreme offending, a judge could fail to identify it as a hate crime.

The fact that our legislation and policies do not require police to collect hate-related data, means that it can’t be searched in databases – and subsequently, we can’t track, monitor or report back on hate crime, nor can we capture incidents that were motivated by hate, which fall short of a crime. Recording these incidents is crucial to understanding hate, and breaking chains of behaviour before they reach violent conclusions. Such data collection is vital for public safety and to inform police and community interventions.

In addition, hateful motivations are not recorded in a convicted offender’s criminal record. For instance, if a place of worship was desecrated based on religious intolerance, nothing in the offender’s criminal record would distinguish the offending from other forms of vandalism. In this way, white supremacist offending has slipped under the radar of police and justice sectors.

What is hate speech, though?

Hate speech is not currently defined in New Zealand legislation. However, the Human Rights Act 1993 outlines that speech is unlawful if it is “threatening, abusive, or insulting” and “likely to excite hostility against or bring into contempt” groups based on, “colour, race, or ethnic or national origins”.

This approach to curbing hate speech has been criticised for setting the legal bar too high, given the necessity to prove the speech would provoke hatred in others. In 2017 the United Nations recommended that New Zealand review legislation addressing hate speech, and criminalise “all dissemination of ideas based on racial or ethnic superiority or hatred”. The scope for whom this legislation protects is also far too narrow, and should be broadened to include (at the very least) religious belief, sex, sex characteristics, gender identity, sexual orientation, disability, age, family status, medical status, and source of income.

Additional legislation exists that provides remedies against harmful digital communications; objectionable films, videos and publications; discriminatory broadcasting; and offensive behaviour and language. However, we are woefully short on the public education and advocacy required to ensure these avenues can be navigated safely and successfully. Some of this legislation and policy is also very new, and is still working through challenges to implementation.

If we look to areas such as sexual violence prevention, we can see that grass-roots organisations are better placed than police to develop the high-trust relationships with affected communities that are necessary for effective support. Doubling funding to the Human Rights Commission would enable it to fund communities to step into this role, enhancing the capacity of organisations such as Fair (Foundation Against Islamophobia and Racism, which launched a hate crime database); Shakti (the driving force behind the “Let’s Deal with It” anti-racism campaign); AAAP (Auckland Action Against Poverty, which advocates for the rights of beneficiaries); ActionStation (which provides anti-racist de-escalation training); and Gender Minorities Aotearoa, to name but a few.

What can we do about it?

The New Zealand Bill of Rights Act outlines that “Everyone has the right to freedom from discrimination”. However, our legislation fails to protect that freedom, and community organisations fighting discrimination are chronically under-resourced.

Last week, the Human Rights Commission released the second iteration of the Give Nothing to Racism campaign, a powerful call upon individuals to consider the racism in our everyday assumptions and language. But as well as asking the public to address everyday racism, we must also demand a better cross-agency government response to eliminate all forms of discrimination. NZ Police, Justice and Corrections in particular must respond to the multiple calls from iwi, from researchers, from justice advocacy groups, from marginalised communities and international authorities to review their own internal racism, and improve their capacity to respond to racist attacks.

Last year, the United Nations recommended New Zealand develop and implement a national plan of action against racial discrimination, xenophobia and hate crime. We suggest that the plan should include the following:

• Implement standalone legislation for hate speech, hate crime and hate-motivated incidents.
• A report on how racism has functioned to create power systems within Aotearoa that inhibit its full investigation and elimination.
• Define hate speech in line with UN recommendations. Decisions concerning hate speech should take into account all relevant contexts. Where the right of free speech conflicts with rights to safety, the protection of those most vulnerable should be prioritised.
• List hate crimes as specific offences.
• Collect, analyse and report data on hate speech, hate crime and hate-motivated incidents.
• Include the following protected characteristics in legislation: colour, race, ethnic or national origins, religious belief, sex, sex characteristics, gender identity, sexual orientation, disability, age, family status, medical status, and source of income.
• Include subcategories in data collection and reporting to meet the informational needs of particularly targeted communities (e.g. “Transphobia”, “Islamophobia”, “Anti-Semitism”, “colonial racism”).
• Double funding to the Human Rights Commission.
• Fund community anti-discrimination organisations to: provide public education on legal tools for combatting discrimination; provide advocacy for persons using legal options; provide support to victims of discrimination; collect, analyse and report data on instances of hate crime and hate-motivated incidents; administer, analyse and report on victimisation surveys in order to understand the extent of under-reporting; develop networks with other organisations (e.g. Community Law), evaluate how the state is currently intervening, and share best practice.

As the election approaches, race relations commissioner Meng Foon has implored party leaders “to focus on issues rather than singling out minority communities for political gain. To… play the ball and not the person.”

Every election year, we see marginalised groups targeted and attacked as political campaign fodder. We must all demand that political parties not only avoid this behaviour, but explicitly outline how they will tackle discrimination in all its forms, in the interest of public safety.