Government

Decolonise the justice system - ‘tinkering’ won’t do

The Government says it wants to transform the justice system, but in the absence of any significant change policy, Newsroom is asking advocates, experts and those with lived experience what they believe transformation looks like. 

In this first article of a three-part series, Laura Walters reports on calls to decolonise the justice system.

At the start of June, tens of thousands of New Zealanders marched to protest the death of George Floyd.

The global discussion about racism and police brutality resonated in New Zealand, where police were trialling the use of armed patrols at the time.

Floyd’s death and the Black Lives Matter movement was used as a springboard to ignite a public discussion about the inherent racism within police, and the justice system as a whole.

While police brutality in New Zealand might not be on the same scale as that in the United States, Lawyer and criminal justice reform advocate Julia Amua Whaipooti has described them as institutions made from the same ingredients.

Māori rates of police contact are three times higher than those of non-Māori; Māori are six times more likely than Pākehā to have a gun pulled on them; and 11 times more likely to be pepper sprayed.

But the issue of institutional racism isn’t confined to the police force.

Māori also make up more than 50 percent of the prison population, but just 16.5 percent of the general population. In the female prison population, Māori women account for 63 percent.

These statistics aren’t new, but they are consistent.

A series of reports from successive governments, advocacy groups, experts and the Waitangi Tribunal have highlighted the justice system’s disproportionate impact on Māori and whānau Māori.

The latest in the decades-long string of reports are those that have come out of this Government’s justice system transformation programme.

"Our tīpuna did not sign Te Tiriti o Waitangi for tamariki to be in care, incarcerated or continually traumatised."

Ināia Tonu Nei (the Hui Māori report) and Turuki! Turuki!, the final report from Te Uepū Hāpai i te Ora (the Safe and Effective Justice Advisory Group), spoke about the racism and bias embedded in the justice system, and the need to decolonise the system - again, something Māori have advocated for over generations.

“Our tīpuna did not sign Te Tiriti o Waitangi for tamariki to be in care, incarcerated or continually traumatised,” Māori who contributed to the report said.

Turuki! Turuki! begins: “New Zealanders want transformative change to our criminal justice system. The need for change is urgent and it must be bold.”

That report was released in December. So far, there has been no announcement of transformational justice policy, in the lead up to the election.

Justice Minister Andrew Little, Prime Minister Jacinda Ardern, and others in this Government have spoken extensively about transformational change. 

To date, those changes have been more tweaks and pilot programmes, rather than anything that resembles reform.

Then in May, it seemed plausible the momentum from the Black Lives Matter movement would help provide the energy and public will needed to start those significant changes.

Not only did no transformational changes come about off the back of this movement, in the wake of the protests Police Minister Stuart Nash denied the existence of systemic racism within police.

He opted for the more palatable term ‘unconscious bias’.

Te Hunga Rōia Māori o Aotearoa (Māori Law Society) Tumuaki Tāne Glenn Tootill said despite these reports confirming the justice system has reached a critical level, especially for Māori, systemic racism did not seem to be generally acknowledged.

“For Māori the impact of colonisation, neo-colonial practices and entrenched racism disenfranchise and frequently conspire to trap our people in the justice system.”

Māori were disproportionately over-represented in the justice system, not only as victims and offenders, but also as defendants and prisoners, he said.  

“For Māori the impact of colonisation, neo-colonial practices and entrenched racism disenfranchise and frequently conspire to trap our people in the justice system.”

There have been some department-level efforts to address the impact of colonisation.

In 2019, Corrections adopted Hōkai Rangi, a five-year strategy, co-designed with Māori, which was centred on te ao Māori. But advocates say based on Corrections’ track-record, it can’t be trusted to change its own culture.

Police also recently released a new Māori strategy, Te Huringa o Te Tai. Again, advocates have questioned how effective it could be when it was essentially a refresh of the failed 2012 Māori strategy, Turning the Tide

Tootill said changing justice outcomes would require more than reports and strategies.

“It will require a courageous commitment to fix the problem before there is real change.”

JustSpeak director Tania Sawicki Mead said one of the key challenges was envisioning what that change would look like.

The country’s justice system was deeply rooted in colonial attitudes and values of punishment, control and conformity.

The theories that underpinned colonisation also underpinned the justice system, she said.

“That’s why the issue of systemic racism against Māori is deeply intertwined with the failure of the justice system. Those two things can’t be extricated from each other.”

The armed constabulary, which later became the New Zealand Police, was founded with the purpose of controlling Māori and protecting confiscated land.

“Without unpacking the racist attitudes that have infiltrated the entire justice system... we always risk tinkering with a system that is not set up to serve the people who are most subject to it."

It was unlikely organisations with this foundation could be successfully reformed. Instead, the departments that made up the justice system needed to be dismantled.

“Without unpacking the racist attitudes that have infiltrated the entire justice system - on which the justice system is based - and replacing them with values and Māori world views, we always risk tinkering with a system that is not set up to serve the people who are most subject to it,” she said.

Upon receiving Turuki! Turuki! Justice Minister Andrew Little acknowledged the system was “taking wrecked lives and wrecking them just a little bit more”.

Little, and many others knew the system wasn’t working, but knowing there was a problem wasn’t enough.

“It’s not enough to recite facts about how systems have failed people, and why they’re bad.”

In fact, this sometimes had the opposite effect, and created more fear. 

Sawicki Mead said people felt confronted when they were told a system was radically failing, and it was creating criminalising environments, but without the illustration of an alternative.

“The visioning exercise of what an alternative would look like is such a crucial part of change.”

Those in power, who were majority Pākehā, also struggled to understand what would take the place of the current justice system.

If it’s not a populist penal system, based on punishment and control, then what was it?

The Māori Law Society’s Tootill said restoration, not punishment, was the key to criminal justice reform for Māori.

Advocates and those with lived experience say Māori world views of restoration, reconciliation and accountability, should build the foundation of a transformed justice system.

But in order for that to happen, Māori needed to be in decision-making roles.

Corrections Minister Kelvin Davis, Police Minister Stuart Nash and Justice Minister Andrew Little all committed to the Labour Party platform of transforming the justice sector, but in the past three years, there has been more tinkering than transformation. Photo: Sam Sachdeva

Again, this need for Māori leadership and the Crown’s breach of its partnership obligations under Te Tiriti have been highlighted in reports and Waitangi Tribunal findings, but to date more focus has been put on consultation, and then co-design, rather than empowering Māori to lead.

Tootil said Māori, Pacific and minority communities needed to be empowered to lead the solutions, at a national and a local level.

For those who didn’t have experience with the justice system, it might be hard to know how to go about achieving meaningful change.

But there were groups of experts, advocates and those with lived experience working hard behind the scenes to come up with a blueprint of what a reimagined justice system might look like.

“If we are to truly decolonise the system, Māori need action now!

“This includes being uncompromising and resisting the temptation to tinker at the edges, continuing to educate the public and have a balanced, informed public discussion, especially in the media,” Tootil said.

Decolonising the system would also require law reform, which would take a courageous government - not just an aspirational one.

On Thursday, JustSpeak launched its policy for the upcoming election campaign, which included an outline of the core barriers to justice, as well as the funding, policy and legislative actions it believed the next government should take. It's broken into three key areas: decolonisation, decarceration, and investment in prevention and rehabilitation services.

The justice reform advocacy organisation said by transferring power and resources to Māori, and transforming the systems to embed tikanga and Māori worldviews in the justice systems, New Zealand would support all communities and whānau to be able to thrive.”

In order to achieve this vision, JustSpeak said the Government should significantly increase funding for section 27 cultural reports, which provided context for a person’s offending and their whakapapa, and fund training for report writers across all regions.

The blueprint also called for an investment in Kaupapa Māori Legal Units within each community Law Centre, to support access to justice in Māori communities,

And the establishment of a tikanga Māori pilot for the Family Court.

In terms of policy actions, all government agencies needed to establish and fund the Mana Ōrite partnership model, placing Māori at all levels of decision-making, it said.

JustSpeak backed the growing number of voices calling for reform of Oranga Tamariki, to transfer responsibility of care and protection services and resources to whānau, hapū and iwi.

And broadly, the mainstreaming of a whānau-centred approach in criminal justice processes, which acknowledged the full whakapapa of every incident, the wider set of challenges and the intergenerational context.

“What helps us to act collectively, and have some faith in a process is a sense that we’re working towards something worth fighting for."

The group also called for the next government to adopt a bold agenda of legislative reform. 

In terms of decolonising the justice system, it said those in charge should begin a comprehensive process of constitutional transformation, following the recommendations and the process set out in Matike Mai Aotearoa - the report from the Independent Working Group on Constitutional Transformation.

As well as starting an immediate review of all relevant criminal justice legislation to ensure it reflected the Crown’s commitments under Te Tiriti. And amending the Sentencing Act to allow judges to order section 27 cultural reports.

Māori who have been involved in recent conversations about justice system transformation, and creating solutions to the current harm being done, say they can’t wait another 30 years for change.

While this Government has talked about educating the public and gaining a mandate, opportunities to seize on moments of inspiration continue to pass it by.

Sawicki Mead called on politicians to lead from the front, and create momentum for change. 

And a small pilot programme, or ad hoc changes to court processes wouldn’t do the trick.

“What helps us to act collectively, and have some faith in a process is a sense that we’re working towards something worth fighting for.

“Reform alone is not worth fighting for, because it won’t properly tackle those deep systemic issues that have persisted for a really long time.”

This is the first in a series of three articles that look at the current barriers to justice, and ask what a justice system transformation could look like, in the lead up to the general election.

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