Marae Based Justice
E
nga mana, e nga reo, e nga iwi, tena koutou, tena koutou, tena tatou katoa.
Thank
you very much for the opportunity to be with you today. It seems between the
time I got the invitation and appearing here on the platform the format and the
topic have both changed but I’ll press on regardless with the comments that I
wanted to make. I’ve made some indulgences as Tau has done with redefining the
topic to suit the sorts of questions that I think we have to address ourselves
to. I don’t pretend for a moment to have all of the answers to the questions
we should be asking ourselves about Maori justice and about the inadequacies and
the shortcomings of the present system. But I want to discuss some concepts and
some approaches that I think will take us down the right track
What
I have done first of all is to set out to address in pretty much lay persons’
language just what the concept of justice is all about and what the objectives
are of any justice system. I guess when you boil it right down, the essence of
justice or the justice system is that it is the means used by society to seek
the compliance of all it’s citizens with rules which are set governing our
behaviour towards each other. When those rules are broken and when one
individual violates the person or the property of another there is an
expectation that the justice system will set it right. Now traditionally the
state regards the violation of person or property as a breach of the rules and
the justice system as requiring the punishment of the offender. Maybe by
community service, periodic detention, fine or by imprisonment.
More recently we have seen the emergence of a new philosophy and I think
a hopeful philosophy for the future and you will hear more about this tomorrow
and that is the concept of restorative justice.
Restorative
justice places less emphasis on the breaking of the rules and more emphasis on
the offender setting things right for the victim, in so far as things can be set
right. Restorative justice I think is a more positive way of looking at our
justice system because it brings the victim into the centre of the process where
the victim belongs whereas our traditional justice system has regarded the
victim almost as a by product of the system to stand to one side while the state
has its way with the offender. What restorative justice may result in is an
expression of contrition or apology by the offender, the payment of compensation
to the victim and maybe the payment of compensation by the offender to wider
society.
One
thing that we think about when we think about the concept of justice is the
thought that justice is something which ought equally to apply to all - no one
is above the rule of law. Under the law, all of us, regardless of power, of
status, of wealth, race or creed ought to have equal rights and equal
responsibilities. A serious criminal offence is no lesser nor greater because of
the ethnicity of the offender or the victim. If I can just divert on the
question of the Race Relations Office, no racial slur is better or worse
depending on the ethnicity of the person that made that slur or against whom
that slur might have been made. There are some things about the justice system
that will be totally blind to differences in power, status, ethnicity, or any of
the other factors. Another is that our justice system will continue to sentence
to imprisonment if the need is to incapacitate a dangerous person or to punish
someone for a serious violent crime such as murder or rape. The aim to set
things right for the victim by placing requirements from the offender to do so
also should apply, regardless of any of the characteristics of the offender, or
for that matter the victim.
However
there is an area where differences in background do need to be taken into
account if our justice system is to get it right. The other aim of sentencing of
course, is the rehabilitation of the offender i.e. an endeavour to change his
behaviour or attitudes and to prevent that person from re-offending. Obviously
if we are looking at a justice system that works for people and works to prevent
new victims, we need to regard the background characteristics of the offender as
relevant in terms of how and sometimes where a sentence might be carried out.
For habilitation or rehabilitation to work the solutions need to be relevant to
the problems which the system is seeking to address. In this area we should be
seeking to put in place a range of options with judgment of those options and
their subsequent expansion or termination based on whether or not they work.
We
are just about into the electoral silly season. (we are probably into it
already) where the law and order drum will beat fiercely and loudly for sometime
to come. What we ought to judge proposals on, is not whether they sound good,
whether they make the wider public feel good, that the system is getting tough
or doing the appropriate thing or not, but rather as to whether those measures
work. If measures do not work (no matter how good they sound in theory or in
rhetoric) we need to discard them. If we experiment, if we are innovative, if we
try new ways we will discover some measures that produce better results for
society as a whole, for the victim, and for the offender and those are what we
should be giving our support to.
The
second thing I want to do in relation to the topic set is to examine the
question of Maori over-representation in the justice system. I took the occasion
to read the briefing notes provided by the Ministry of Justice to the incoming
minister in 1996. They included statistics about the proportion of Maori in our
criminal justice system. The Minister probably would not have been shocked by
them but only because they were not new. High levels of offending by Maori being
processed by the criminal justice system were described as constituting and I
quote “the most important single issue for that system”.
I wonder if that is or was the most important single issue whether we
have put the time and energy and resources into addressing that issue over the
last three years or indeed any time before that.
A
highly disproportionate number of Maori come to the attention of the police.
Imprisonment rates per capita for Maori are several times higher than
that for Pakeha. The 1995 prison census showed slightly more than half of male
inmates were Maori, and 56% of female inmates were Maori. Maori of course make
up merely 14- 15% of the overall population. Those inmate figures have
multiplied from 1950 when Maori made up only 18% of the inmate population. The
increase since that time has often been related to the rapid urbanisation of
Maori over that period and the disruptive effect that has had on the
cohesiveness of social structures, family and iwi.
The
Ministry’s prediction in 1996 was that the trend would continue to worsen
because of the strong Maori juvenile cohort effect coming through.
Having described the problem let us now consider in the latter part of my
comments how we might seek to address it.
The
next section I headed was “Prevention is a hell of a lot better than cure”.
Talking about addressing the problem of Maori over-representation in the justice
system through marae justice is to start by addressing the problem from the
wrong end. The first priority must be to address the causes of why Maori are
over-represented within that system. In that regard, some critical statistics
were released to the country last month by the Children Young Person and their
Families Agency, what they showed was that last year, children classified as
Maori or part-Maori accounted for 48% of child abuse and neglect findings by the
agency i.e. more than 10,000 children subject to abuse and neglect sufficiently
serious to come to the attention of the agency (and that’s only those cases
that were discovered.) The reality the agency said is that Maori children are
more likely to be abused and neglected than anyone else.
What
we know about major research done in this country is that there is a very close
correlation between what children suffer by way of abuse and neglect in the
earliest years of their life and their subsequent development and their
appearance in criminal offending and other social problem statistics. There are
two studies that have been done in New Zealand, one in Christchurch, one in
Dunedin. Each independently followed a grouping of a thousand children from
birth through now to their mid to late 20’s.
What
that showed was that children subject to abuse and neglect were, literally one
hundred times more likely to appear in criminal offending statistics but that
was only the tip of the iceberg. Those same children were many, many times more
likely to appear in later statistics dealing with solvent, drug and alcohol
abuse, dealing with teenage pregnancy, dealing with early school drop-out,
unemployment, and long-term dependency. And the frightening thing about the
information provided in those statistics was that in most cases those running
the research project could identify from age three which were the children that
were going to be in those criminal statistics. You think of your mokopuna at age
three and then comprehend the awfulness of a situation where a child, before
that child has any control over their own destiny is almost predestined to end
up as part of our criminal justice statistics. What we need in this country
before anything else is early intervention programmes, we are seeing the start
of those programmes i.e. Tupu Ora in the Waikato. We have seen the early-start
programme in Christchurch that is critical to breaking the cycle of abuse and
neglect.
So
too, must we address the wider social and economic problems which have affected
Maoridom disproportionately as they have most other indigenous people that have
been subject to oppression by majority cultures in other parts of the world.
Education, employment and income are other relevant factors which affect
social alienation, disadvantage and criminal offending. Only when we address
those causes will we start to see a real change in the system.
Finally
Mr Chairman, my last section is just to touch briefly on a couple of examples I
know of where successful culture or marae based initiatives have worked for
rehabilitation. The first is Te Whanua Awhina at the Hoani Waititi Marae in West
Auckland, a relatively recent programme set up in 1996 in collaboration with the
police and the local Safer Community Councils. That evaluation has now been
completed and is a very positive evaluation. What happens is that the court
diverts the person to be seen before a community-based panel on their offending,
before their own Maori community, together with their family and whanau and
their victims. Something that actually doesn’t happen in court. You are not
confronted in that way with the consequences of what you have done.
The
second focus which is called Embrace is about reintegrating the offender back
into whanau and the Maori community, and finding employment and a place in
society. Plans are made in the
presence of family. They include attendance on programmes, they include
recompense for the victim and the community. More than two-thirds of those plans
were completed to the satisfaction of police and courts and the data on
re-convictions shows that there was significantly less re-conviction by those
that went on this programme (33% compared to another controlled group of the
same sort of offenders which was 47%). Investment in the programme produced
better and more humane results. It produced savings in terms of money not wasted
within the corrections system and it produced results (most importantly) that
showed a reduction in re- offending.
The
second programme I would like to touch on and give credit to is the New Life
Akoranga Wananga programme run by the Mahi Tahi Trust. This works both in and
outside the prisons by systematically seeking to change criminal behaviour
through an approach deeply rooted in a Maori world-view. Its effects were to
make inmates more responsive to management and more receptive to rehabilitative
programmes. The results again have been shown in a lower propensity to
re-offend. All of these programmes of course may involve a fancy way of saying
what Jack Hobson the former governor of the Paremoremo Prison said to me many
years ago when I was a young student and we were going through the prison. We asked him “could you actually change an inmate?” and
Jack replied in this way “Son, there are only three things that change people
in here.They either find a good woman, they find religion or they rediscover
their culture” It was a rather homespun philosophy, but what Hobson was saying
from years of experience as a hard-bitten prison governor is pretty similar to
what we are finding what actually works in terms of turning peoples lives
around.