Contents 2 Introduction: a fair go for all? 5

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The use of “special measures”

One means of addressing structural discrimination is the use of special measures (also known as affirmative action). Special measures are positive actions to assist or protect disadvantaged groups.21 Both the Act and the New Zealand Bill of Rights Act 1990 recognise that to overcome discrimination positive actions may be needed to enable particular groups to achieve equal outcomes with other groups in our society. They are not discriminatory if they assist people in certain groups to achieve equality. Special measures must be necessary to the group they are aimed at, tailored to the specific disadvantage, carried out in good faith, proportional and temporary.22

Recognising the difficulties states have had with special measures, the United Nations Committee for the Elimination of Racial Discrimination put out a new General Recommendation on Special Measures in 2009. It stated, among other things, that:

  1. Special measures should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary. The measures should be designed and implemented on the basis of need, grounded in a realistic appraisal of the current situation of the individuals and communities concerned.

  2. Appraisals of the need for special measures should be carried out on the basis of accurate data, disaggregated by race, colour, descent and ethnic or national origin and incorporating a gender perspective, on the socio­economic and cultural status and conditions of the various groups in the population and their participation in the social and economic development of the country.

  3. States parties should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities.

In New Zealand, special measures have met with resistance. New Zealand society prides itself on its egalitarianism and giving everyone a “fair go”, so special measures can sometimes seem like they are unfairly giving certain groups special treatment. Researchers James H. Liu and Caren August note, however, that structural discrimination:

conceal[s] negative affect and maintain[s] disparity by invoking egalitarian principles that deny structural disadvantages and position minorities as demanding special treatment or violating group norms.23

Resistance to special measures is related to a partial understanding of equality. Many New Zealanders recognise formal equality or “equality before the law”. This means, for example, that everyone has the same legal right to attend school or receive medical care, or be treated fairly in the justice system. In practice, however, not everyone is able to access education, health or justice services in the same way due to a various socio-economic obstacles, including discrimination.

Substantive equality is concerned with ensuring that everyone can in fact compete on an equal basis; it highlights socio-economic obstacles (including discrimination) that may impede equality of opportunity.24 The Western Australian Equal Opportunity Commission summarises the distinction between formal and substantive equality:

If you want to treat me equally, you may have to be prepared to treat me differently.25

It is important to note a distinction between special measures – which are temporary, until such time as the inequality is removed – and permanent rights. Special measures to ensure equality contribute to, but are not a substitute for, programmes for all New Zealanders designed to ensure access to decent work, healthy affordable housing, and effective delivery of health, education and other services. Special measures are just one way of ensuring equality of outcomes for the diverse groups that make up New Zealand society.26


Project purpose

This project seeks to identify structural barriers to ethnic equality through a process of research and engagement with public service agencies, researchers, and affected groups and individuals. A key purpose is to encourage discussion about successful or promising initiatives that are intended to address inequalities by creating systemic change. A secondary aim is to facilitate discussion between government agencies to further develop ideas, share best practices and promote continued awareness and conversation about their respective efforts to address this issue. Ultimately, the project aims to recognise promising initiatives and prompt further sustainable systemic change.

Through both primary and secondary source research, the paper examines what makes interventions to address structural discrimination effective and what the ongoing challenges are to increasing effectiveness.

The Commission recognises that the issue of structural discrimination is complex. It is not proposing a solution to structural discrimination, nor does it expect to find a single-point solution through this project. The Commission simply aims to prompt discussion, provide analysis and encourage action.

Project parameters

This paper serves as the starting point in a larger project that includes discussion with government agencies, community groups, academics and practitioners. The paper examines ethnic inequalities through a structural lens by focusing on four key sectors: the justice system (specifically, the criminal justice system); the education system; the health system; and the public service system. It identifies levers within the government’s influence – for example, how medical staff and educators operate within these systems, where changes in practice can serve to reduce ethnic inequalities while also examining the value systems operating within these sectors and whether the Government is doing enough to address inequalities.
Each of these systems is made up of components. The criminal justice system, for example, broadly consists of police, courts and correctional services. This paper aims to prompt discussion about the interplay between components within a system as well as the interplay between systems. The starting assumption is that for interventions to be effective there needs to be a consistent approach within and across systems.

Ultimately, the project aims to encourage discussion about best practices for systemic change to reduce ethnic disadvantage that can be applied across different systems.

The structural discrimination project consists of five phases:

  1. Secondary source research and literature review

  2. Primary source research via interviews and in-person meetings

  3. Presentation of discussion paper at the 2011 Diversity Forum

  4. Further feedback and discussion

  5. Final report.

The project began by reviewing current literature about structural discrimination within the health, education, justice, economic and public service systems. The literature review primarily focused on New Zealand-based research, but also drew from international sources where appropriate.

The second phase of the project involved in-person interviews with representatives from government agencies, non-governmental organisations and other relevant individuals. The Commission met with the following agencies and organisations:

  • Treasury

  • Department of Labour

  • State Services Commission

  • Tertiary Education Commission

  • New Zealand Qualifications Authority

  • Auckland University of Technology

  • University of Waikato

  • Pharmac.

The discussions centred on the following key questions:

  • What are the structural barriers that may contribute to ethnic inequalities in your area of work?

  • What interventions has your agency developed to address these structural barriers?

  • How effective have these interventions been so far?

Thirty-five individuals were interviewed between May and July 2011. These semi-structured interviews and the information shared by the above agencies and organisations informed the structure and content of this discussion paper. All participants in this project were sent a draft of this paper for review prior to it being finalised. They are not however responsible for the content.

The Commission hosted inter-agency workshops in July and September 2011 to share its findings and generate conversation between agencies. They provided an opportunity for agencies to learn from each others’ experiences in developing, implementing and evaluating initiatives that address structural barriers. The Commission aims to encourage increased and ongoing collaboration between agencies on this issue.

This paper served as the focal point for a forum on structural discrimination at the annual New Zealand Diversity Forum in August 2011. The Commission facilitated further discussion on the topic and gathered additional input from non-governmental organisations and community members. Invited speakers were Professor Linda Te Aho of Waikato University, Ruth de Souza from Crime and Punishment. Discussion and input from the Diversity Forum participants and additional research and recommendations via consultations have informed the content of the final report.

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