Policing political race speech with a posse

On May 12th Parliament’s Speaker made a ruling worth a deeper look. We'll start with the ruling and then attempt some context. 

Trevor Mallard ruled that MPs will now be allowed to call out racist speech and policy where they see it, but not accuse an individual of being racist. They can say ‘what you said is racist’ but not ‘you are racist’. 

A speaker’s ruling is an interpretation of the House of Representatives' rules. Like judicial case law it creates a precedent and so becomes a rule itself. 

That might not sound very impressive, but it is huge for Parliament where the term racist was previously disallowed to describe any of those things. 

Trevor Mallard’s ruling overturned a ruling made by Speaker Doug Kidd in 1998.

No racists here 

Doug Kidd had said that while some MPs might feel that the policies or views of other members were objectionable, calling those views racist was unparliamentary. It broke the rules against suggesting MPs had ‘improper motives’ and of making ‘personal reflections’.

Kidd said the term racist was unnecessary because New Zealand was free of political parties that openly espoused racist views. 

A decade later, another Speaker, Margaret Wilson, ruled that alleging racism from another MP was extreme enough to be offensive to the dignity of the House as a whole. As such Speakers were duty-bound to punish accusations of racism even if other MPs did not complain about them.

After a few weeks of regularly telling off MPs for making either accusations of implications of racism Trevor Mallard has concluded that approach is no longer fit for purpose. 

“…matters which might have been seen as not being racist in New Zealand 20 or 40 years ago are now, and having members call things like that for as they see them is something which I wouldn't want to prevent.” - Speaker Trevor Mallard

In response to the new ruling the National Party MP Michael Woodhouse objected that he inferred the Speaker thought that some National Party MPs were being racist.

The Speaker’s response was that some MPs (eg those from Te Paati Māori) had honestly expressed the opinion that some of what some other MPs were saying was racist. But equally, that what the opposition National and ACT parties were raising to some current government policies was intimating that those policies themselves were race-based and therefore racist. 

“…some members view the approach taken by others as racist. It's a genuinely held view - clearly genuinely held … I think it gets really hard if they are not allowed to express their views … I took some inferences from questioning today that a major party viewed a possible policy direction in exactly the same way. I don't think either side should be refrained from expressing the view, as long as it is not personalised to members.” - Speaker Trevor Mallard

Te Paati Māori MPs Debbie Ngarewa Packer and Rawiri Waititi had not been the only MPs expressing discomfort with recent race-oriented debating points - but they had led the charge for change.

A legal free-for all

Some context on speech in Parliament might be useful. Legally speaking MPs can say anything in the House. Literally anything. 

MPs have ‘absolute privilege’ - a protection from the laws over defamation, obscenity, blasphemous libel etc. 

Obscenity and blasphemy laws sound quaint but the blasphemous libel law was only repealed in 2018, and despite how cheerfully sweary we Kiwis are, verbal obscenity is still listed as a crime under the Summary Offences Act. Are you surprised?

That adds some weight to a point Trevor Mallard made during his ruling - that attitudes have changed in New Zealand over the last 20-40 years. He was talking about what is considered racist, but blasphemy and obscenity have moved right alongside that (in the opposite direction).  

MPs’ protection of absolute privilege holds as long as they are speaking in the House. 

Which is why MPs sometimes dare each other to ‘repeat that outside the debating chamber’. 

The idea is that Parliament is a bastion of free speech where MPs are unencumbered from having full and frank debates without fear of reprisal. 

Holding MPs' tongues

Despite their legal immunity MPs actually self-censor quite heavily.

Over the years MPs have imposed limits on their own speech, outlawing various things. Some of those limits are set in Standing Orders (the House’s formal rules); some via Speakers’ Rulings (the common law interpretation of Standing Orders); and some by convention.

These restrictions have happened for different reasons: 

• To protect the ‘dignity’ of Parliament or avoid offending the ‘sensibilities’ of MPs. For example MPs do not swear in the House, nor use many kinds of insults. 
• To protect the separation of the powers MPs do not criticise the judiciary, the Governor-General or the Queen. They are also meant to avoid talking about cases currently before a court (called sub judice). 
• To avoid ‘disorder’ in the chamber. Banning verbal abuse is meant to avoid punch-ups in the aisles (duels are apparently out of style). This includes insulting an MP’s honour, honesty or motives. For example MPs cannot suggest other MPs are lying.
• Also MPs do not attack each other’s families, for example by weaponising gossip or personal tragedy. At least not in the House. 

Parliament allows MPs offended by a personal insult to complain to the Chair, but they cannot complain on behalf of a group suffering a more general insult (e.g. racism). At least they could not before this new ruling.  

Listening for Dog Whistles

Of course everything goes back into the depths of time, but recent tension in the House possibly began in February when the Māori Wards Bill was being debated (and fiercely opposed by both National and ACT). That issue has been joined by the Ihumatao settlement, a planned health re-organisation, and the He Puapua report.

But in February, during questions about Māori wards Labour’s Nanaia Mahuta called a question from National’s electoral law spokesperson Nick Smith a “dog whistle”.

The Speaker said he wanted to take advice and think about that phrase but could MPs please refrain from using it in the meantime.

Labour’s Kris Faafoi followed up by suggesting that National were “scratching an itch”. An impressively oblique reference. That was also kaiboshed as having implications that were 'unparliamentary'.

The unparliamentary implications were not about animals - they were accusations of racism.

A dog whistle is an American political slang for coded, euphemistic racism used as a political tool. It dates back to Richard Nixon’s strategist Lee Atwater during the civil rights era, who decided (in what he called the Southern Strategy) that politicians could no longer be blatantly racist (to attract southern separatists) without losing moderate voters, but instead could use coded language heard by racist supporters, but missed by others. Hence dog whistles (which cannot be heard by humans, only dogs). 

Presumably - now that allegations of racist speech are permitted - 'dog whistle' might be back off the disallowed words list.

A Point of Order

The day that Trevor Mallard scrubbed out the Kidd ruling was an eventful one in the House.

Te Paati Māori had left the chamber after leader Rawiri Waititi was expelled for performing a haka when he was told to sit down.

It was an expression of frustration. As a very small political party Te Paati Māori have scant opportunity to put their case in the House. Being new to Parliament’s tikanga makes it much harder. Alleging racism was particularly hard without being allowed to call it by its name - they had ignored that rule on that day. 

Less than an hour later Green co-leader Marama Davidson stood and took up the challenge. She had the experience to know how to broach a discussion in the House without trespassing the rules so far as to force a response from the Chair.

“…I am asking could you further reflect on those rulings, especially 44/1, because that came from 1998 and, effectively, rules that no member in this House can ever be racist - which is actually not reflective of a House of Representatives and does not help towards raising the standard of debate in this House when we start to undermine debate as including harmful, racist narrative.” - Marama Davidson (Greens)

Davidson’s Point of Order prompted a wider discussion among MPs, with varying opinions. A few excerpts from that discussion:  

“To automatically presume that because a certain line of questioning, which you've ruled is in the Standing Orders, should be ruled out because somebody has a perception that it carries with it an inference I think would demean the quality of the debate and the freedom that we have, the privileges that we have, in this House to engage in robust but reasonable debate in accordance with the Standing Orders.” - Michael Woodhouse (National)

“…but to somehow restrict the House from being able to debate the executive's policies with charges of racism was rightly ruled out by previous Speakers. If anything, the influx of racially explicit policy on the part of the executive makes it more necessary that we are able freely to debate them.” - David Seymour - (ACT)

“I think the overall objective here was to get members debating the substance of an issue rather than using labels in order to characterise one another. I think members expressing concern about sentiments being expressed on one side of the House or another is absolutely legitimate; it is a legitimate part of debate.” - Chris Hipkins (Labour)

“…The Treaty of Waitangi, signed between Māori and Pākehā settlers into New Zealand, is something that will always be, and has always been in the time we've had parliamentary democracy, the subject of intense debate in the Parliament. That's the reality, and we should not inhibit debate around that in this House.” - Chris Bishop (National)

“I am also looking for your guidance on how we can have genuine debate without marginalising entire groups of communities, including tangata whenua, who feel that the standard of debate in this House is not at all welcoming or inviting to actual democratic debate on the important issues of how our country comes together in the future.” - Marama Davidson again (Green)

“…The tone or certain labels that get used in question time, or have been used in question time recently, are offensive to some members but, under the rules of the House, under the procedural rules that the Hon Marama Davidson was referring to, we're unable to say that we take offence, because it's not directed at an individual member of Parliament. So we can't, within the procedures, say that we take offence to something that another member has said as part of question time.” - James Shaw (Green)

“I think the challenge … is trying to work out how you, in fact, deal with debate on policy that is formulated, essentially, on race, without offending those who consider that such a debate should not take place, and that there should be no question about the basis of the policy itself.” - Gerry Brownlee (National)

“I am one of those indigenous peoples, and I sit here in this House as a representative of others as well. And when we have politicians that say that they speak for my race that I belong to, I find that they're not actually speaking for me. So I would actually like to be able to have the debate that's being held. While we do all know that some people find things offensive, others actually believe that we do need to have this debate, and this is what this House is about.” - Nicole McKee (ACT)

“…There are certain issues of debate within this House where there's a duty of care in how we approach it. How it's handled in this House also has rippling effects on the wider community. And for minority groups, including myself, it is quite painful to sit in here knowing that, whilst it is a robust House here, where all things are open for debate, there's a line that often crosses here. And I think it's no different from us also being careful about sexual harassment and abuse, that we've often talked about.” - Aupito Sua William Sio (Labour)

The Ruling

After listening to those points of view the Speaker, Trevor Mallard rose and gave the ruling. Some excerpts:

“…My starting point... is that there is a difference between calling an individual a racist and criticising either a policy or a view as being racist … some people in this House have the view that some policies are racist. Some people have the view that other members' views are racist. In my opinion, ruling that out would be excluding the rights to free speech, which we value substantially.

“…I think the essence of my ruling is asking people to take care as they express themselves, to think of the wider consequences when they do, but I am not going to ask one part of the House to refrain from suggestions that some policies are race-based or, effectively, racist, and I'm not going to stop another group in the House expressing the view that other members' views - not the members themselves but the views expressed - are, in fact, racist. I think that will get the balance about right. It will leave the freedom of speech, but it will stop people saying that individuals are racist, which I think most members would find offensive.” - Trevor Mallard

The unenviable lot of a Speaker 

The job of a Speaker is, in many ways, not an enviable one. They are charged with maintaining good sense and order in a rolling verbal bar brawl. And they tend to get blamed when things do not go well for one participant or party in the melee.

And yet they have very little power. They are limited in what they can effect.

They are charged to protect free speech but without allowing disorder or insult. To achieve that they can ban individual words, but they cannot outlaw attitudes. They can outlaw insults but cannot easily ban politely phrased but offensive debating points. It’s completely beyond their power to ban policies. 

So how do you solve a problem like that?

Trevor Mallard is trying a new tack. He has decided that what he cannot easily police himself, he can allow MPs to attempt to corral, with the use of a spotlight. How's that for a pick-n-mix metaphor?

Parliament has free speech. It’s difficult to draw today lines around that. So the new approach is to - allow that free speech to include criticism of other MPs’ speech. 

Release the hounds

Immediately after this the ruling the next thing the House did was the weekly General Debate, where MPs can address any topic they like. Immediately a few MPs cautiously took up their new mission. 

Like, for example, Labour MP Ayesha Verrall.

“I want to accept [Chris Hipkins], the Leader of the House's invitation to characterise the opposition's behaviour in detail; more than with a single lazy label. The behaviour we've seen in the House recently is intended to generate a suspicion of Māori aspirations and the Crown's efforts to partner with Māori to meet them. It is divisive. It is desperate. It underestimates New Zealanders, and it is a political strategy that, in order to succeed, must play into fears, insecurity, and, yes, maybe racism. It is ultimately cynical. It is cynical because there are numerous examples where the National Party, when in Government, implemented these similar policies—those policies that they now label as separatist. Most significantly, it displays a poverty of ambition and imagination for our country and our people.” - Ayesha Verrall.

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“Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it.” - Boswell’s Life of Samuel Johnson