August 2019 Māori Law Review

Criminal justice – Te Ohu Whakatika – Ināia Tonu Nei

Ināia Tonu Nei - now is the time. We lead, you follow

Te Ohu Whakatika

24 July 2019

Te Ohu Whakatika released a report entitled Ināia Tonu Nei - now is the time. We lead, you follow. The report reflects submissions the group received on the criminal justice system in Aotearoa as a result of hui Māori convened after the Criminal Justice Summit in 2018.

Download Ināia Tonu Nei in English (6.38 MB, PDF) and Ināia Tonu Nei in Te Reo Māori (6.4 MB, PDF).

Overview

This report reflects recommendations and practical measures suggested by the group Te Ohu Whakatika following on from the 2018 Criminal Justice Summit as part of the work programme Hāpaitia Te Oranga Tangata to reform the criminal justice system. Te Ohu Whakatika took responsibility for coordinating a Māori response to reform of the criminal justice system

The report reflects information gathered at Hui Māori. These hui created a space for Māori to kōrero about how to reform the failing justice system with three main recommendations arising. These cover constitutional reform, a call for a plan to accelerate and understand the change needed, and to establish a Mana Ōrite model of partnership.

The report leaves no doubt that its informants believe that for the recommendations to happen Māori must lead now, Ināia Tonu Nei.

The report can be read alongside He Waka Roimata - transforming our criminal justice system which sets out the problems and views from within the community as relayed to the criminal justice advisory group Te Uepū Hāpai i te Ora.

Background

Prior to this report, He Waka Roimata was released setting out the results of research through hui, interviews, participation at the criminal justice summit, and open discussions, identifying issues and concerns of iwi, hapū and all parties affected about the current criminal justice system.

This report emerges from a distinct workstream resulting from the 2018 Criminal Justice Summit to ensure a Māori response was obtained through hui. The report conveys suggestions and expectations of hui participants, capturing raw voices heard at hui and calling for transformative change by 2040.

Discussion

Key themes in this report

Te Ao Māori and justice

Te Ao Māori worldviews must be central to any reform of the justice system. Those working within it must be culturally competent. Any justice system reform must balance tikanga, mātauranga Māori and Māori worldviews. Offending or other events that interact with the justice system requires an approach focused on rebalancing the disruption caused by the events in issue. Restoring balance must involve traditional practices. (at p 7).

Te Tiriti o Waitangi was not signed envisaging Māori being incarcerated at such a high rate. The current justice system continues to display bias (at p 2).

Reports such as Puao-te-ata-tu and He Whaipaanga Hou should be given greater consideration, particularly in acknowledging the success of kaupapa Māori practices within communities (at p 9).

The Crown and delivering a justice system for Māori

Hui participants remarked that the Crown has failed in delivering a justice system for Māori. The Crown has not worked with Māori as partners in developing the justice system. Rather the Crown adapted a system that is not appropriate for Te Tiriti partnership. The Crown alone does not have the capability or capacity to undertake this work. It is clear that past Crown approaches have failed Māori and the community. Therefore, a new approach is needed (at p 11).

The Crown must take responsibility for the legacy of colonisation and inter-generational trauma that affects whānau today. The justice system is racist and biased against Māori. Anyone who defends these issues and says that bias does not exist within Crown agencies does not truly understand what it means to have experienced bias in the justice system.

The Crown, the justice sector and officials need to stop protecting and defending their positions for the sake of it. The question "what is the purpose of this system" must be asked. A greater need for understanding of tikanga Māori and kaupapa Māori approaches are needed. There must be fundamental changes to benefit the whole community (at p 11).

Māori no longer want to solely rely on the Crown for change. Māori want to lead the change with help, shared power and funding from the Crown (at p 12).

Power sharing

The hui called for the Crown to share power with Māori. This ensures that Te Tiriti o Waitangi is given its full effect. Funding must be allocated accordingly to do this (at p 14).

Ināia Tonu Nei states that ministries in the State's bureaucracy should only exist for a specific purpose and not solely because of their longstanding existence. If the new vision of Aotearoa does not fit the purpose of the existing ministry, it must be reviewed or removed (at p 14).

"Iwi must also share power within their whānau, hapū and their communities"(at p 14). This is because some iwi are part of the systems that hold and control power that keep many whānau out. Iwi must attempt to engage with all whānau.

Māori-led responses

Māori want to lead the responses and reform to the justice system. This is to ensure whānau are no longer caught in the system. Furthermore, Maori who work in the community know the needs to whānau more than anyone else. There is no longer support for the approach where Crown own and lead. Māori have the knowledge, relationships, experience and capability to lead this (at p 16).

However, crucially, "they need funding and support to enable this to happen" (at p 16). Māori are calling for the Crown to work with them to lead responses to improve the wellbeing of Māori and reduce the amount of exposure Māori have with the justice system. If 50 percent of those in prisons are Māori then 50 percent of the funding should be put solely towards Māori responses in these spaces.

Well-being and development of tamariki and mokopuna

The pipeline of justice begins at birth with the first 1,000 days of a child's life being crucial to development. Ināia Tonu Nei suggests that no child should be removed from its mother or whānau at birth and that if this occurs, it should be seen as an illegal act. This is because uplifting children to remove them from whānau adds trauma and denies the right of the child to their whakapapa (at p 18).

"Mana Tamaiti means the intrinsic value and inherent dignity derived from a child or young person’s whakapapa and their belonging to whānau, hapū, iwi or a family group, in accordance with tikanga Māori or its equivalent in the child or young person’s culture" (at p 18). It is important that anyone working with tamariki understands this. Ināia Tonu Nei identifies this as crucial to justice reform.

There must be a collaborative effort by all sectors working with tamariki to understand the full effect that is being had in the development of tamariki. There needs to be identification of high-risk areas and early intervention in these areas.

Currently Oranga Tamariki (the Ministry for Children) is failing Māori. There is no capacity to deliver kaupapa Māori services to whānau. The practises within Oranga Tamariki must be changed. The current practises are a gateway to criminal offending. The Family Court plays a critical role when working with whānau and their wellbeing. Their approach has not been changed in the past 20 years and it must be challenged. Puao-te-ata-tu needs to be embedded in all Family Court and care processes and there must be an understanding of tikanga Māori and Te Ao Māori in all court systems (at p 19).

Rangatahi courts need to be resourced more efficiently and effectively and their use expanded throughout Aotearoa. There needs to be an increase in Māori judges in the courts, with broad experience to help tamariki. These courts include the Youth Court, Family Court and District Courts. Every process must be child focused, whānau centred and whānau led. The courts should always be a last resort for all justice matters (at p 18).

Abolition of prisons

The Hui Māori called for the abolition of the current prison system. Prisons are currently failing Māori and the systems approach is too punitive and needs to focus on rehabilitation. Māori are wanting "a community-led response to offending, with incarceration as the alternative, while the Crown phases out prisons as they are currently structured" (at p 21). The report recognises that some individuals will need to be separated from their community for a time, due to risk to themselves or others, but separation of this type should have a rehabilitative focus and again, should be a last resort (at p 22).

Currently, incarceration is the only way to hold people accountable for criminal behaviour. Ināia Tonu Nei explains that community-based responses must become the default position, with accountability on the community, rather than court monitoring (at p 21). This approach is deemed to be more meaningful for defendants and appropriate and effective for victims of crime and the wider community.

A shift is needed to treat addiction to alcohol and other substances as a health problem, rather than penalising community members who need help. There must be a healing space for offenders (at p 21).

Response teams must be created. These will effectively engage with people who are arrested. Response teams will aim to "address health or social issues before court action" (at p 21). Training for all people working in the criminal justice system must be ongoing, with a focus on hearing the voices of lived experience.

The justice sector must actively take steps to engage whānau, hapū and iwi in all areas of the justice system.

If a matter does go to the criminal courts, there must be a focus on effective sentencing. This is to ensure offenders recognise their behaviour while having appropriate support when they return to the community. In order to do this, Te Pae Oranga must be expanded, incorporating tikanga Māori. This approach has had previous success within the community. Furthermore, the use of section 27 Cultural Reports in Sentencing must be expanded (at p 22). These reports should be funded and further training in them is needed. Legislative change is needed to ensure judges can direct reports to be completed.

Probation reports are currently scant. People engaging with the reports do not trust them. This is because they are a part of the system. There has been a vast difference identified from reports collected independently (at p 22).

There is a continuous roll down effect of trauma identified when a whānau member is sentenced to prison. This affects more than just the justice system, it affects whole communities.

Bail approaches are currently inadequate. Sentencing to prison before conviction only because someone does not have a permanent address or support at the time is not just. New services and protocols must be introduced.

Sector groups are responsible for the rehabilitation of offenders, not just the Department of Corrections. A cross-sector approach must be adopted.

Call to action

The Hui Māori recognised that the Crown must approach the forthcoming reform in two ways.

First, to "immediately decolonise the justice system, providing instant relief to processes that continue to harm Māori" (at p 23).

Secondly, to begin design of an inter-generational plan reforming the justice system. This will include "starting to work in areas such as constitutional reform, ensuring the reform of the justice system is enduring and reflects the commitment that the Crown made in signing Te Tiriti o Waitangi" (at p 23).

The Justice Sector should adopt a Mana Ōrite model of partnership" (at p 23).

Recommendations

The report says that "the following recommendations begin the process to enact the call to action by Māori at Ināia Tonu Nei. They reflect some of the raw kōrero and calls made by participants but are not an exhaustive list."

The recommendations made are set out here in full (pp 24-28):

Overarching approach

  • Develop and implement a comprehensive approach to reform Aotearoa’s justice system based on abolishing prisons by 2040. This approach must be underpinned by, inclusive of and encompass the following points.
    • Inclusion of Te Ao Māori, tikanga Māori and Te Tiriti o Waitangi.
    • Mana Ōrite model of partnership to be established and nurtured between Māori and all Crown agencies and departments.
    • All legislation and policy settings in Aotearoa to reflect Te Ao Māori, Tikanga Māori and Te Tiriti o Waitangi.
    • High-trust relationships must be established and nurtured between Māori and all Crown agencies and departments.
    • The Crown must take responsibility for colonisation and stop all ongoing effects of colonisation.
    • Prisons are abolished in New Zealand.
    • Oranga Tamariki is disestablished.
    • Lived experience must influence policy and legislative developments.
    • The justice system must reflect the true intentions of Puao-te-ata-tu.
    • The justice system must reflect the true intentions of He Whaipaanga Hou.

Constitutional reform

  • A constitutional reform to take place to entrench Te Tiriti o Waitangi. A work programme to be developed to support this work.

Establishing a Mana Ōrite model of partnership

  • Justice and social sectors to establish a Mana Ōrite model of partnership that puts in place Māori at all levels of decision-making.

Legislation and policy

  • Review all legislation relating to the justice and state sectors and ensure it reflects Te Tiriti o Waitangi. Immediate review of the Sentencing Act 2002, Bail Act 2000, Criminal Procedure Act 2011 and all legislation relating to care and protection.
  • Increase legal aid funding to whānau, hapū and iwi, to ensure greater access to justice.
  • Make Te Tiriti o Waitangi and New Zealand history compulsory for primary and secondary education.
  • Review section 27 of the Sentencing Act 2002, to allow judges to direct cultural reports, to increase their use. In addition, the Ministry of Justice must fund these cultural reports.
  • More Māori judges to be appointed across all courts and tribunals of Aotearoa.

Service delivery

  • Devolve services from Oranga Tamariki to whānau, hapū and iwi to provide care and protection services with and for whānau in their own communities.
  • Justice and social sector agencies to develop, in conjunction with Māori, regionally based advocacy units.
  • Undertake a kaupapa-Māori-based evaluation of the current therapeutic and specialist courts across Aotearoa to distil key learnings and principles from these models. Develop and implement a plan to apply these learnings and principles to the mainstream court process (ie, normalise these approaches). This includes: establishing more therapeutic and specialist courts, where appropriate (ie, Matariki, rangatahi, sexual violence, alcohol and other drug treatment, and family violence courts).
  • Reform the Family Court, with the first step being to establish a tikanga Māori pilot for the Family Court.
  • Establish more Te Pae Oranga, iwi and community panels and increase the tariff to enable more cases to be heard.
  • Fund Māori non-governmental organisations and provide extensive support to organisations to develop capability and capacity in their own communities.

Workforce

  • Invest well in, build and drive a rapid upskill and increase of Māori capacity and capability within the justice and social sectors.
  • Invest in Kaupapa Māori Legal Units within each Community Law Centre, to support access to justice in Māori communities.
  • Invest in rangatahi-led initiatives, to improve capability and capacity building of the future of Aotearoa.
  • Whānau Ora navigators to be established for the justice sector working with the social sector.
  • Increase the pool and use of lay advocates, and their remuneration, to reflect their requisite skills and experience, and put in place a workforce strategy to attract and retain high calibre lay advocates.
  • Develop and invest in regionally focused service models within the justice and social sectors, to ensure models reflect the needs of each region.