Affirmative action programmes may make good sense for commercial or social purposes, but decisions about them should be made by firms or institutions in a decentralised way, rather than be imposed by government edict.

This is the conclusion of University of Chicago legal scholar Richard Epstein in a New Zealand Business Roundtable paper released today. Affirmative Action: The US Experience and Implications for New Zealand is based on an address given in Wellington in August 2004.

Releasing the paper, Roger Kerr, executive director of the New Zealand Business Roundtable, said that in the United States and New Zealand, Professor Epstein has argued against broad-ranging anti-discrimination laws on the grounds that they infringe citizens' rights to freedom of association and block mutually beneficial arrangements, for example in the labour market. [1]

On the same grounds, Professor Epstein argues in his latest paper that firms or institutions should be free to establish affirmative action programmes as a matter of private initiative: "If a female Maori entrepreneur wants to hire an all-female Maori workforce, the law should not stop her from doing so". The case for affirmative action does not need to be based on remedying past wrongs. Motivations for such programmes could include the benefits of social diversity in an institution, commercial advantages in a multicultural society, and help for disadvantaged groups.

Professor Epstein argues that the secret of running a successful affirmative action programme is to decentralise decision making, and that voluntary arrangements are most conducive to social harmony. Public sector organisations should also have autonomy, especially where the government is not a monopoly provider:

Decentralised decision making does not mean the state has nothing to do with affirmative action. Rather, it means that public bodies can adopt their own policies. What should be resisted is a single directive from the centre to disparate public agencies telling them how they ought to behave. Decentralisation brings better incentives and more local knowledge on the ground.

"Debate in New Zealand about anti-discrimination and affirmative action policies is often not founded on the principles that ought to govern a free society, such as the case for freedom of association. Professor Epstein's paper is very relevant to the current review of race-based policies which the government is conducting", Mr Kerr concluded.

1. See Richard Epstein, Human Rights and Anti-discrimination Legislation, New Zealand Business Roundtable, 1996 and Age Discrimination and Employment Law, New Zealand Business Roundtable, 1999, www.nzbr.org.nz

Affirmative Action: The US Experience and Implications for New Zealand is one of thirteen lectures Professor Epstein delivered during his 2004 visit to New Zealand. Each is being published by the New Zealand Business Roundtable.

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For more information, contact:

Roger Kerr
Executive Director
New Zealand Business Roundtable
Ph: +64 4 499 0790
Email: rkerr@nzbr.org.nz

David Young
Communications Manager
New Zealand Business Roundtable
Ph: +64 499 0790
Email: dyoung@nzbr.org.nz

www.nzbr.org.nz