Towards a "Separate" Maori Justice System

Via the Police News Centre:

Iwi and Police are joining together to implement an innovative strategy aimed at reducing victimisation, offending, road fatalities and injuries among Maori. 

'The Turning of the Tide - a Whanau Ora Crime and Crash Prevention Strategy' was developed by the Police Commissioner's Maori Focus Forum, consisting of senior Iwi representatives from around the country, with help from Police. 

Police Commissioner Peter Marshall says there is an obvious need to reduce the number of Maori entering and re-entering the criminal justice system and dying on the roads. 

"Maori now comprise more than 40% of all police apprehensions, more than 50% of the prison population and more than 20% of crash fatalities, despite making up only 15% of the general population.” 

 Firstly, credit to the Police and iwi. There's a lot to like. The plan adopts the Whanau Ora approach. In other words, an inter-iwi and inter-agency approach. The plan also considers the relevant issues in the context of the extended family (which is consistent with the more literal definition of Whanau Ora).

Taking people out of their families to ‘fi x’ them and then putting them back doesn’t work, especially when the family is a gang. Sometimes, we’re our own worst enemies and let our families lead lifestyles that encourage crime. ‘Fixing’ individuals doesn’t change the family.

Reintegration is an essential part of rehabilitation, but reuniting offenders with their whanau can - in a significant number of cases - increase the risk of reoffending. The traditional risk factors include poverty, education, housing, and unemployment. However, family circumstance - read having a criminal family - is often overlooked in sentencing and parole decisions. There can be little point in releasing or reintegrating an offender whose own whanau represents an invitation to reoffend. The plan recognises this factor and aims to create "positive family relationships" to reduce the risk of reoffending among offenders in the above circumstances.

The plan also acknowledges that a culture change is necessary:

We want as many people as possible talking about why crime is wrong, who gets hurt, and what each and every one of us can do to prevent it. It’s time to stop paying lip service to tikanga and put our cultural values into action. Until we do, the people who suff er are our children, siblings, parents, grandparents, aunties and uncles.

Yes. Yes. However, the report's silent on a culture change in the Police ( it's probably outside the brief). The Salvation Army writes in their State of the Nation Report that Maori are three times more likely than non-Maori to be apprehended and "also more likely to be prosecuted by the Police for their offending". The Sallies add that "not only has this trend continued... but it may be getting worse". Kylee Quince has found that:*

Maori are 3.3 times more likely to be apprehended for a criminal offence than non-Maori. Ministry of Justice figures for 1999 report a prosecution rate for young Maori people aged ten-16 years at 76.2 per 1000 population, compared with 16.95 per 1000 population for non-Maori. Maori adults were 3.8 times more likely to be prosecuted than non-Maori and 3.9 times more likely to be convicted of an offence. Nine times as many Maori than non-Maori are remanded in custody awaiting trial.

Prosecution is a discretionary decision, but the Police will (apparently) consider the seriousness of the offence, the strength of evidence, the number and type of associated offences for which the person may also have been arrested on that occasion, previous offending and so on. The unspoken consideration is, of course, race (or race coupled with class). After all, Maori are more likely to be prosecuted than a non-Maori for committing the same crime. This indicates, to me, that race is an aggravating factor in the decision to prosecute. Consider this (also from Quince):

At least two thirds of the 737 police respondents reported hearing colleagues use racist language about Maori. Many reported a greater tendency to suspect Maori of an offence, or to stop and query Maori driving “flash” cars. Overall, the data suggested that about 25 per cent of police have negative attitudes towards Maori.**

No Maori (or should that be dark-skinned Maori with no money?) with experience in or with the Police needs an academic paper to alert them to Police racism. It's known to the point that it's intuitive among many Maori. But getting to the point: there needs to be a culture change within the Police. It is all well and good for the Turning the Tide plan to call for a culture change among Maori, but that call must be reciprocated if it's to have any legitimacy. It's a start, and an encouraging one I suppose, that the Police aim to slash the Maori prosecution rate by 25%.

I'm a cautious supporter of a Maori criminal justice system.*** The, for want of a better term, western justice system doesn't cater to Maori notions of justice. The current system enjoys a monopoly on justice, but many of the values it embodies and expresses are not universal. Judge Andrew Beacroft (Principal Judge of the Youth Court) has found that the most effective programmes for Maori take a holistic approach (incorporate tikanga, whanau and the like), enhance pride in the offenders’ taha Maori and whakapapa and are tailored to the individual. A Maori justice system would do this and more. Rangatahi Courts, Marae hearings and the Whanau Ora approach represent small scale change in that direction, but come nowhere close to challenging the hegemony of Pakeha justice.

It's not like this idea is particularly radical. The Treaty guarantees Maori tino rangatiratanga and article 34 of the UN Declaration on the Rights of Indigenous Peoples holds that "Indigenous peoples have the right to promote, develop and maintain their... juridical systems or customs, in accordance with international human rights standards". In the US, the Navajo Peoples maintain their own police force, judicial system and corrections system (jurisdiction is shared with the state). Surely, if they can do it, we can.

Post Script: JustSpeak provides a position paper (Maori and the Criminal Justice System 2012) from a youth perspective. Very interesting. 

*This is a very good paper from Kylee Quince from Auckland University Law School. Quince uses to the trauma of colonisation to help explain Maori offending. 

**See G Maxwell and C Smith  Police Perceptions of Maori Victoria University of Wellington, 
Institute of Criminology, 1998, Summary and Recommendations. Note that of the 737 
police respondents, 8 per cent of the sample identified as Maori.

***The most famous and most instructive paper on point is He Whaipaanga Hou (The Maori and the Criminal Justice System) by Moana Jackson. It's the go to paper for any discussion of Maori and the criminal justice system. I say cautious because I'm more pragmatic than principled on this point. 

  

Death spiral

 

The Marine and Coastal Area Bill is deeply flawed. The Bill is riddled with drafting errors and ultimately will not restore mana whenua. So naturally I was disappointed to see the Bill returned without amendment.

I half expected Te Ururoa to adopt a degree of independence from the Nats on this select committee. Sadly, he, and his mates, had formed a common intention. The question I find most intriguing is when did the two parties decide they were going to use their majority to return the bill unchanged? I am merely speculating but I think it was done a number of months ago, perhaps when the select committee commenced. I would also postulate that the complaint against Hone Harawira was an attempt to silence him before the bill was returned to the House. I think Te Ururoa and the leadership did not think it likely that Hone would hold on for so long. I imagine they thought he would quickly shoot himself in the foot and the matter would be dealt with relatively swiftly. As we know the opposite has happened and Hone is beating them at their own game. Given that Hone was not expelled before the bill was due to be returned the leadership needed another way to silence him – suspension from caucus. Hone’s behaviour over Waitangi weekend provided an excellent excuse for doing so. Now he cannot speak out on behalf of The Maori Party, he is something of a castaway. But that’s enough speculating – back to the select committee.     

As a select committee member Te Ururoa’s role is to facilitate public scrutiny and consultation. Furthermore, Te Ururoa, as a self proclaimed Maori representative, has a responsibility to act as an agent for Maori interests. I expect him to exercise his own independent judgement but ultimately it is more important that he act as a conduit for Maori concerns. However, Te Ururoa has put political considerations ahead of his moral and democratic responsibilities.

The MCA bill is not an elite concern. The implications of implementation will be far-reaching. The bill affects all Maori and all New Zealanders. Therefore, it was almost an imperative that the Maori Affairs Select Committee took into account the views of submitters and reflected that in their report. What the committee has shown is that policy formulation is an insider’s job. Influence over policy is only open to members of government and those with institutionalised access to it, for example the Iwi Leaders Group. This theme is becoming all too common across Maori Party policy. Access and consequently influence is granted only to the elite (iwi leaders) while ordinary Maori are excluded (I have touched on the subject of the Iwi Leaders Group limiting Maori political participation here).

It cannot be said enough that what Te Ururoa has done is nothing short of disgraceful. Annette Sykes sees it as a betrayal and I agree. It is disappointing that Te Ururoa has not rationalised his actions nor made any attempt at all to at least defend what he has done. It makes you wonder if he is not reacting to the situation is he even anticipating it?

 

The party must surely be doomed. It has no money, it is losing talent and in due course will probably lose members. Surely Moana Jackson, a prominent critic and conscious within the party, will leave. It is difficult to say if many will follow but I would not rule out the possibility of mass exodus. The Maori Party is descending down a corridor to destruction. Only they can save themselves, although I doubt they have the self awareness and foresight required to do so.    

Constitutional Review

It is awfully worrying that the likes of Moana Jackson and Margaret Mutu have rejected the Maori Party/National run constitutional review. These people should have been central to the debate not forced to run their own process due to dissatisfaction with the current process. In my opinion a royal commission should be handling this issue and Moana should have been included as a member. Instead we have a part time group of politicians who know nothing about constitutional law. But perhaps I am too cynical - good things may come.

In any case I hope the group explore a variation of the Westminster system, but not necessarily a departure, that better reflects Te Ao Maori.  Any changes must reflect our democratic values, provide for government stability, protect the rights and freedoms of citizens and incorporate Maori values. With that been said I actually think our constitutional arrangements work well - all I would like to see is small changes to our constitutional conventions and relevant statutes that better reflect New Zealand in the 21^st century and the interests of tangata whenua.

Constitutional changes are often driven by or result in the establishment or of a new political order. But will that political order be Maori?