The law is reason free from passion. It’s a quote most people will recognise from Legally Blonde but in its original form, “the law is reason unaffected by desire”, it’s from Aristotle’s work on political philosophy.
It’s a great premise. Justice, equally and for all, free from political corruption. Free from the wild beast of desire that, according to Aristotle, “perverts the minds of rulers even when they are the best of men”.
Public law was one of my favourite classes at law school, where, I gained a whole quarter of a law degree. My passion for eating Toffee Pops and smoking in bed outweighed my desire to go to class on grey Dunedin mornings and I crashed out of second year law in spectacular fashion. I was 20, cold and on reflection, very depressed.
But it wasn’t a waste of time. In addition to furthering my admiration for the principled and mighty vacuum that is the law, I also had my first tiny revelation about our justice system, and it took some shine off its classical beauty for me.
In my first year at law school, when I was still attending class, we learned about restorative justice. I wrote an exam essay on marae-based justice. It was probably an awful essay, but I argued that perhaps a system created by the British and imported here may not be serving Māori particularly well. If nothing else, it demonstrates that this concept was being discussed at law schools 20 years ago.
In 2011, Yvette Tinsley and Elisabeth McDonald wrote a paper for the Canterbury Law Review called ‘Is There any Other Way? Possible Alternatives to the Current Criminal Justice Process‘.
“Under a restorative justice model, the criminal act is seen as an act against both the community and the victim. Offending behaviour is seen as damaging human relationships, and restorative justice aims to restore victims, offenders and the community. It seeks to undertake this restoration – a remedying of harm – through collective participation by all those affected by the offence. It aims for re-integration and repair rather than punishment and retribution.”
Surely even the most hardened members of the ‘lock ‘em up’ brigade and the MPs who talk about being “tough on crime” in election years must be able to see that the status quo just isn’t working.
In that quote alone they reference papers, submissions and studies written in 1996, 2002 and 2003. There are 128 references in Tinsley and McDonald’s paper including: a 2004 Ministry of Justice best practice guide on restorative justice, a 2005 paper titled ‘Will Therapeutic Jurisprudence Provide a Path Forward for Maori?’, a 2010 submission from the AUT Restorative Justice Centre to the Focus on Victims of Crime consultation, Moana Jackson’s ‘Justice and political power: Reasserting Māori legal processes’ from 1995, a report on the Taskforce for Action on Sexual Violence/Te Toiora Mata Tauherenga from 2009 and a review of the use of restorative justice in family violence cases in the Rotorua district from the Ministry of Justice in 2007. The work of Ani Mikaere, Sir Hirini Moko Mead, and many other Māori academics and legal professionals is also cited.
Having read across a range of the references mentioned here, I then found an article that mentioned a marae-based justice programme. It described it as a fledging system. In 2018.
Just like that, thousands of words written and years of work in this area taken like a novelty. Principles and practices of justice inherent to tikanga Māori that have existed for centuries, relegated as backdrop in favour of newsworthiness.
It’s not that the programme didn’t deserve a moment in the sun, it’s just that it seems to be symptomatic of what has been happening for years. We seem to be constantly rediscovering things that are proven and known and yet have not been acted upon. Evidence, wisdom and knowledge from Māori, for Māori, ignored, filed away, and recycled again when the political tide is right. Task force after task force battling the same problems. Experiences had and work done, all lost behind the invisible but seemingly impermeable line between Māori and Pākehā and between tikanga and our Westminster system.
On Sunday, the He Waka Roimata/A Vessel of Tears report was released. It’s the interim report from Te Uepū Hāpai i te Ora – the Safe and Effective Justice Advisory Group.
The report finds, “that the number of Māori in the system is a crisis and in need of urgent attention”. The “effects of colonisation undermine, disenfranchise and conspire to trap Māori in the criminal justice system and that racism is embedded in every part of it”.
Perhaps there’s just enough will and hope to prevent the beasts of desire that pervert the minds of even the best men (and women) from throttling the transformation required to allow justice to be served, equally and for all.
In his introduction, Te Uepū Hāpai i te Ora chair Chester Borrows writes:
“Encouragingly, it seems an increasing number of people are willing to step up and meet the challenges. The system does not lack examples of innovation and success, but these need to become the norm, and this will take time.”
His words somewhat echo Judge Heemi Taumaunu’s, who presided over the first sitting of one of the Rangatahi youth courts in Gisborne in 2007.
“We’re dealing with a problem that started in 1840 and hasn’t changed significantly in the last 20 years. It’s not a problem that is going to be solved overnight either. We do need to be courageous … But what I have seen without question is a change in the lives of certain young people I thought were destined for jail and add to those statistics.”
We are constantly told transformation takes time and it’s not that there hasn’t been change. There are many community organisations doing incredible work in this area and I’m sure there are many Ministry officials and members of the judiciary who have advanced progressive and innovative change but still, things get progressively worse for Māori.
At what point do we commit to doing what needs to be done? At what point do we say: ‘We have had time and now we must take action?’ Surely even the most hardened members of the ‘lock ‘em up’ brigade and the MPs who talk about being “tough on crime” in election years must be able to see that the status quo just isn’t working.
I possess no real qualifications to talk about the law beyond being the daughter of a man who has worked in it for most of his life and whose love of the law is one of the things I love most about him. Oh and my brief brush with law school. I have even less ground to claim when it comes to speaking about Māori experiences of the justice system. I texted my friend about my recent reading, incredibly bothered by how far back this conversation goes with seemingly so little change for Māori.
“I know,” she said. “I’ve read it all.”
“Shocked pākehā gif,” I sent back.
But I take Borrows’ final words and call to action in the report to heart. Māori or Pākehā, legal beagle or layperson, we all should.
“Significant and lasting change will likely take a generation to achieve. This is why we must all be involved. Change can only happen if voters pick up the conversation, which Te Uepū has ignited and facilitated, and governments of all shades can agree we need to do better – together.’
There is hope. Borrows has said as much in the media.
In the forward to the report Judge Joe Williams, tasked with choosing a name for the report, writes:
“It might be said that grieving is the necessary first step in the journey towards real change. It is my honour to offer He Waka Roimata: not just a name, but a declaration of hope.”
There is irrefutable evidence both within the report and in the decades of work already done and conversations already had. There is now, and hopefully, the political will required to timestamp this moment and say, “This is where we drew the line”. Perhaps there’s just enough will and hope to prevent the beasts of desire that pervert the minds of even the best men (and women) from throttling the transformation required to allow justice to be served, equally and for all.
