Mā te ture anō te ture e aki - Te Kooti Arikirangi

EXECUTIVE SUMMARY

It is well understood that structural discrimination creates the world-wide over-representation of indigenous peoples within justice systems. New Zealand, Canada and Australia produce high levels of offending and imprisonment amongst their indigenous populations which can be traced back to the confiscation of native wealth and the support of their colonial legal systems.

At Waitangi on the 6 February 1840, the Chiefs and tribes signed our nation’s first colonial agreement, Te Tiriti o Waitangi.  The Crown not only initiated the treaty. They wrote it, signed it and asked that it be distributed throughout the country, so it could be ratified by all Iwi. In Te Tiriti o Waitangi, the Crown agreed to protect the pre-existing sovereign rights of Iwi over their people their land and their treasures, whilst governing the land.

The Crown established the criminal justice system that we now have. Far from protecting Iwi sovereign rights, they instead created an interlocking system of government agencies that to this day, turns their whakapapa against them from womb to tomb.

Māori are much more likely to be victims of crime, to be apprehended, arrested, prosecuted, convicted and incarcerated than other New Zealanders and ethnic groups. They are also much less likely to be granted bail or parole.

Two years of the Criminal Justice System, two years of the Criminal Punishment System costs more than all the Treaty Settlements paid to date over the past 26 years.

WHAT MĀORI PARTY WILL DO

The Māori Party will:

• Establish a Māori Legal Service/Defence Legal Service with $100 million set aside to defend Māori from the State.
• Establish a Te Ture Ōrite consisting of $500 million to implement a parallel restorative Māori Criminal Justice system, based on tikanga Māori which aims to rehabilitate and reintegrate offenders and victims as contributing members of their communities and to stamp out racism at all levels of the justice system
• Ensure fair, equitable and culturally competent police force, who are effective with Māori offenders and communities by:
• Legislating the code of ethics for the Police.
• Requiring Police officers to wear body cams.
• Evaluation surveys of policing by high Māori population communities.
• Halve the prison population by repealing the Bail Amendment Act.
• Repeal the three strike rule as it doesn’t align with a restorative justice system.
• Ensure gun laws reflect the responsible use of firearms to meet customary obligations.
• Ensure Māori who have been wrongly convicted have their convictions removed from their police record.
• Ensure Māori who’ve been publicly shamed for crimes they didn’t commit are pardoned.

 

CONTEXT

Māori Criminalised To Normalise Land Theft

The first NZ parliament sat in 1854. Voting rights were extended only to men who held individual land titles. This effectively excluded all Māori, since Māori land was communally owned. In 1860, the Crown began waging war on to take their land. By the 1920s only around 8% was left in Māori hands.

In 1863 parliament passed The New Zealand Settlements Act which then legalised the taking of land through confiscation. From January 1865 – 1868, 1.5 million acres of land was confiscated in Taranaki, Waikato, Tauranga, Eastern Bay of Plenty and Mohaka-Waikare. By the 1920s, only around 8% was left in Māori hands.

From 1865 arrests, imprisonment and executions followed for Māori considered to be rebelling against the New Zealand Settlements Act or Crown governance in general. Women and children were raped and under a ‘scorched earth’ policy, villages were plundered and burned to the ground.

Māori leaders charged during this time included prophets Te Kooti Rikirangi no Rongowhakaata, Te Whiti o Rongomai and Tohu Kākahi no Te Atiawa, Rua Kenana no Tuhoe and Titokowaru no Ngāti Ruanui. In an unfathomable twist of logic, Te Whakatōhea chief Mokomoko and Ngāti Rangiwewehi religious leader Kereopa Te Rau were both hanged for a death they did not commit and 144, 000 acres of Whakatohea land was confiscated.

Māori Criminalised for Business Gain

Today, Māori imprisonment fuels a commercially sustainable prison industry in which our people are the ‘product’. The cost of keeping a person in prison for 12 months is $91, 000.

In 2001, the Corrections Department estimated that a lifetime of offending by one person costs victims and taxpayers $3 million. As corporates like SERCO have discovered, prisons are a lucrative business. In 2011, $370 million was approved to build the biggest prison in the country at Wiri. $10 million was spent on internal costs before building began.

The Mt Eden Correctional Facility was a $100 million project and $750 million has been set aside for the rebuild at Waikeria Prison.

Over-representation of Māori in Prisons

In May this year, TVNZ reported that 62% of the total women’s prison population are Māori and that most of these women are between 16-29 years of age.  Corrections Department statistics for June this year show that Māori men are four times more likely than non-Māori men to be imprisoned. Māori make up only 15% of the total population but in prison over 50% of the prisoners are Māori. That equates to roughly one in every 142 Māori in prison right now compared to one in every 808 non- Māori.

Risk Factors: Social Inequalities

Regrettably, known risk factors, such as youth, gender, unemployment, lack of education, and substandard housing, are infrequently used to gain a more accurate picture of Māori offending. These factors must be taken into account since they feed a vicious cycle of criminal risk which has been outlined by Simone Bull as follows.

Colonisation generated broad social inequalities leading to deprivation. The deprivation causes crime. Crime causes inequality. This causes the deprivation and the cycle repeats itself. Generalisations about Māori criminality which do not assess socio-economic factors, play a role in stereotyping Māori and perpetuating misinformation.

Biased Attitudes

Te Puni Kokiri report Addressing the Drivers of Crime for Māori points out that while there has been some support for locally designed, developed and delivered programmes in New Zealand, these have not been supported to the same extent as large scale imported programmes. As the increasing offending rates show, for Māori, this preferential funding history has failed to address complex issues such as offending.

A 2007 report by the Department of Corrections, Over-representation of Māori in the Criminal Justice System, shows a higher likelihood for Māori offenders to have police contact, be charged, lack legal representation, not be granted bail, plead guilty, be convicted, be sentenced to non-monetary penalties, and be denied release to Home Detention.

Over-representation of Māori in the Criminal Justice System also noted that ethnic groups viewed by society as more criminally prone tend to be over-policed. Mainstream attitudes contribute to an increase in both formal and informal profiling by Police, thereby increasing Māori arrest rates and entry into the justice system as offenders.

The Human Rights Commission reported A Fair Go for All. Rite tahi tatou katoa? Addressing Structural Discrimination in Public Services suggests that Māori are four to five times more likely to be apprehended, prosecuted and convicted than their non- Māori counterparts. Christchurch-based research found that Māori experienced arrest at three times the rate of non- Māori users for equivalent cannabis usage.

Fergussen and his research colleagues found that young people up till the ages of 14 years of age who offend, were twice as likely to be the subject of police attention if they were Māori. A Fair Go For All. Rite tahi tatou katoa? Addressing Structural Discrimination in Public Services indicates that the rate could be much higher than that, pointing out that Māori aged 10-13 years are almost six times more likely to be apprehended than their New Zealand European counterparts.

Violent Policing

In October 2007, the Terrorism Suppression Act was used to authorise Operation Eight raids in Ruatoki, in response to an alleged paramilitary training camp in Urewera. On the morning of the 15th October, around 300 police, including members of the Armed Offenders Squad and Special Tactics Group set up two roadblocks near the village of Ruatoki. At the same time, they searched homes and detained residents there. Searches were also conducted in other parts of the country.

The viability of the operation failed to convince the Solicitor-General. On the 8th November, he declined to press any charges under the Terrorism Suppression Act. The Independent Police Conduct Authority (IPCA) review of the Operation Eight raids found police actions to be ''unlawful, unjustified and unreasonable'.

The road blocks lacked sufficient planning and preparation. Armed Offenders Squad carrying out searches on all vehicles leaving Ruatoki were intimidating and detrimental to the community. Photographs of 66 drivers and 15 passengers including children which were taken at the roadblocks left some feeling degraded and intimidated. The IPCA found the photography was not part of operation planning and had not been discussed.

The searches carried out at five properties in Ruatoki and the detention of occupants there was also deemed unlawful. IPCA Chairman Sir David Carruthers said, ''While police have the power to restrict the movement of people to prevent a search being interfered with, they cannot lead people to unreasonably believe they are being detained. In a number of cases here they did so.”

The Operation Eight raids resulted in 17 people facing a total of 291 charges under the Arms Act. Of that group, only four were sentenced and only for minor firearms charges. The two Māori were sentenced to two and a half years' jail. The two non-Māori were sentenced to nine months' home detention. Valerie Morse, one of the Pakeha people arrested in the Operation 8 case, outside of Ruatoki, notes that for “the non-indigenous arrestees … the situation was starkly different”.

High Conviction and Sentencing Rates

Differences in convictions for Māori and non- Māori suggest structural discrimination and racial bias within the justice system sentencing process. Over-representation of Māori.  In the Criminal Justice System found that 79 per cent of Māori were convicted compared with 70 percent of non- Māori.

Structural discrimination and racial bias is evident in sentencing too. Over-representation of Māori.  In the Criminal Justice System found when comparing offenders with similar histories, that fewer Māori were given leave to apply for Home Detention and fewer were granted Home Detention. Māori were also more likely to receive a prison sentence when compared to non-Māori.

Over-representation of Māori in the Criminal Justice System also discusses the effect of detainees feeling unsafe with Police. A 1998 study found that since Māori experience Police as racist they may not be confident to follow their instructions. The writers then speculate that this perceived lack of cooperation by the Police, may in turn may increase the likelihood that the Police officer will proceed with charges.

Pipeline to Criminal Punishment System

There is also strong evidence to support a link between correction through the Justice System and inequitable social and economic conditions. It is estimated that 80 percent of Youth Court offenders are not formally engaged with the education system (Becroft, 2006). Of these offenders, Māori are also particularly over-represented.

Since 1995, over half of all youth justice apprehensions concerned young Māori (Ministry of Social Development, 2008). 42 percent of Māori aged 0-14 years live in the highest socioeconomic deprivation quintile as indicated by the New Zealand Deprivation index (Ministry of Justice, 2010).

Students from the schools in the lowest socioeconomic quintile (deciles 1 and 2) have exclusion rates that are five times that of students in the highest quintile (deciles 9 and 10) (Ministry of Education, 2012; Ministry of Social Development, 2008). Similarly, truancy rates for decile 1 and 2 students are around six times those of their peers from decile 9 and 10 schools (Ministry of Education, 2012; Ministry of Social Development, 2008).

Parallel Māori Criminal Justice System

The NZ criminal justice system is founded on the British model, in which wrongdoers take individual responsibility for their crime. Despite initiatives to reflect Māori values, a greater sense of whānau and community responsibility and involvement in the justice system, the individualistic punitive approach nevertheless prevails.

A Fair Go For All. Rite tahi tatou katoa? Addressing Structural Discrimination in Public Services affirms that the Māori approach to offending couldn’t be more different. In tikanga Māori, a collective group is identified as the victim and a collective group is responsible as the offender. The whānau, hapu and iwi of both the victim and offender are affected since the offending reduces both of their contributions to the collective. Because offending has such a community-wide impact, the community as a whole is involved in the justice process.

Justice for Māori does not mean the attempted grafting of Māori processes upon a system that retains the authority to determine the extent, applicability, and validity of the processes. No matter how well intentioned and sincere such efforts, it is suggested that they will merely maintain the co-option and redefinition of Māori values and authorities which underpins so much of the colonial will to control.

Children’s Commissioner Judge Becroft has long supported the inclusion of tikanga, whanaungatanga and whanau into the justice process and more importantly acknowledged that Māori should determine whether and how that happen. Judge Becroft wrote “There are few youth offending programmes and services designed specifically by Māori for Māori. Effective programmes should be staffed by Māori people with similar life experiences to their young charges.”

Adding on cultural elements to a dominant system does not change the fundamental inequalities that give rise to disparities within the justice system. There also needs to be a shift in values to recognise the need for directly resourcing a parallel Māori criminal justice system.

He Whaipaanga Hou

2018 marked thirty years since the publication of Moana Jackson’s ground-breaking exploration of Māori experiences of crime control in Aotearoa New Zealand, Māori and the Criminal Justice System: He Whaipaanga Hou.  Based on research with over 3000 Māori participants, Jackson’s report highlighted a number of significant issues with the Māori-criminal justice relationship that resonate with the experiences of Indigenous people in other countries. This policy acknowledges that work and aims to address the inequities embedded within the criminal justice system, which create and sustain a landscape of Māori offending and incarceration rates, across our history and into our future.