He Waka Roimata - transforming our criminal justice system

Te Uepū Hāpai i te Ora

9 June 2019

Te Uepū Hāpai i te Ora, the Safe and Effective Justice advisory group, has released its first report entitled He Waka Roimata (a vessel of tears). The report reflects submissions the group received on the criminal justice system in Aotearoa.

Download He Waka Roimata (5.4 MB, PDF).

Overview

This report reflects many voices, heard through consultative processes, repeating calls for change to our criminal justice system. The report is a setting out of the problems and views from within the community. Recommendations and practical measures suggested by this Crown-commissioned advisory group are not due to be delivered to the Minister of Justice until August 2019. We will report on later developments.

The report leaves no doubt that its informants believe the current system is not working effectively to rehabilitate offenders and their whānau, or to facilitate well-being sufficiently. No one should be surprised at those views.

Although the formal recommendations have yet to be given, it is clear that something must be done. Te Uepū Hāpai i te Ora has signalled that it will be calling for nothing less than transformative change.

Background

In July 2018 Minister of Justice Hon. Andrew Little announced the appointment of a specialist advisory group, the Safe and Effective Justice Programme Advisory Group – Te Uepū Hāpai i te Ora, to "work alongside Justice Sector agencies on a prudent and realistic scope for effective criminal justice reform." The Minister also announced a criminal justice summit for August 2018.[1]

Appointments to the Group ensured people with different experiences and backgrounds were brought together to work on this kaupapa.[2] The chairperson is former National Party politician Hon. Chester Borrows (formerly Deputy Speaker of the  House of Representatives and previously Minister for Courts and an Associate Minister of Justice). Victims’ advocate Ruth Money and family violence councillor Shila Nair were appointed. Academics or former academics include Dr Carwyn Jones (co-editor of this journal), Dr Warren Young (also a former deputy president of the Law Commission and Justice sector public servant), Professor Tony Ward, Professor Tracey McIntosh and Dr Jarrod Gilbert. JustSpeak's former chairperson Julia Whaipooti and lawyer Quintin Hix round out the appointments.

Te Uepū (the Group) went to communities to hear people describe the issues they see with our criminal justice system. This first report record's Te Uepū's estimate that the Group attended over 220 hui in 13 regions as well as major events such as the criminal justice summit held in August 2018.

Discussion

We have been here before

He Waka Roimata reports a number of serious concerns with our criminal justice system.

We have been here before. Repeatedly. It's a valid question to ask why we need this further engagement/research and this advisory group when the underlying messages have been apparent for at least 30 years.[3]

Part of the answer may be that modern politics seems to demand careful outsourcing of advice on difficult social issues. Timing considerations can also require careful calibration to ensure less palatable advice lands on a Minister's desk at a suitable point in Aotearoa's short electoral cycle. Political intentions to be tough on crime might deliver more votes than acts of leadership that examine and confront whether we have a criminal justice system that is fit for purpose and suitably reflective of the diverse communities it serves. Any fresh settings in this area involve balancing competing values.

Talking tough on crime gave Aotearoa its own version of the American inspired so-called "three strikes" sentencing in 2010. This is where subsequent conviction for a third strike offence sees the maximum sentence imposed without possibility of parole, unless the absence of parole would cause manifest injustice. The policy intention is to signal more severe sentences for people re-convicted of serious offences. Applying this law has been an unfolding experiment as courts wrestled with whether it would create manifest injustice. In a justice system where over half of the prison population are Māori, the legislation came with warnings from the start by commentators that it would disproportionately impact on Māori.[4]

The Minister of Justice announced the proposed repeal of this system. The Government abandoned the law reform because one of its coalition partners would not support it as a piecemeal reform. The Minister explained that he would advance the issue as part of a package of criminal justice reform.[5]

The safe and effective justice advisory group, Te Uepū Hāpai i te Ora, has been tasked with recommending reforms.

Victims of crime

Victims have experiences that are entirely unsatisfactory, often leaving them re-victimised or with added stress. Misunderstood and being unheard were two common themes emanating from discussions with victims of crime (at [14]).

Traditionally, victims have not had a formal role in the criminal justice system. The State is responsible for discharging a public, rather than individual, interest in bringing the alleged offender to justice. The process, conducted in the name of the State, focuses on determining innocence or guilt of an individual committing crime and responding to that innocence or guilt. In a simplified version for present purposes, Police determine whether and how to investigate. Offences are legislated. Courts, with juries for serious crime, determine guilt. Sentences are decided by judges applying legislation and guidance or tariff decisions of the senior courts. A parole board decides whether early release from custody is appropriate and on what conditions for those imprisoned and subject to that system.

There are measures in place to give victims some rights and to increase the sensitivity of the process to victims of crime. These include victim impact statements, victim inclusion in discussions on name suppression and attendance at family group conferences. These measures are not always honoured. The Group heard that often victims remain excluded from discussion involving a crime committed against them (at [16]). Others, acting in the name of the State, take decisions and take decision-making power away from the victim.

All victims would like a different experience of what happens after a crime has been committed. He Waka Roimata sets out messages that they all should be given the opportunity to have their views and fears validated and heard.

Māori over-representation

The number of Māori within the criminal justice system is a true crisis.

This report reminds us that one in five Māori males has been imprisoned by the age of 35 (at [22]).

Even better known is that Māori comprise just over half of the male prison population and more than 60 percent of the female prison population.

The normalisation of these sort of statistics has fed negative stereotypes of Māori. The report records demands made for accountability from those responsible for the current criminal justice system to recognise the broader social and systematic harm this has done to Māori communities.

There has been a detrimental impact from colonisation and racism that affects Māori at every point in the criminal justice process and there needs to be Māori involvement to lead and create solutions to the current failures within the system (at [24]-[27]).

The data represented in the report shows that over generations and at every point of life, as a group Māori will experience disadvantage. This includes poorer physical and mental health as well as poorer education, housing and employment outcomes. All of these things increase the risks of a person becoming involved with the criminal justice process (at [23]). This ultimately hinders Māori from meaningfully contributing to their whānau, communities and wider society, showing the cruel circular nature of the current system for Māori.

So, how does our society fix this?

The report relies heavily on a theme of hope (at [26]) along with the need for a greater focus on rangatiratanga, whanaungatanga, mana, utu, tapu and noa, and manaakitanga in all elements pertaining to Māori (at [27]). Māori leadership in designing solutions is stressed along with the need for everyone involved to understand the kaupapa Māori context in which those solutions are proposed.

In releasing a press release, in parallel with the release of this report, the Justice Minister noted Māori willingness to be involved. At the iwi level, the hapū level and throughout the Māori community generally there is willingness to help to provide solutions. He noted that this is evident from the report and there is a need to consult with Māori communities before actually coming up with the recommendations for change.[6]

Violence harms people, whānau and communities.

The report sets out what an enormous issue violence is, particularly for families and children. Harm from violence is perpetuated across generations and is felt across New Zealand’s diverse communities (at [29]).

The report highlights the difficulties for ethnic and minority communities (including Māori, Pacific peoples, migrant and refugee communities and members of the LGBTQI+ community) (at [30]).

New Zealand's high rates of family violence are confronting.

The report details that 40 percent of all homicides are family violence, 29 percent of family violence deaths are of children killed by abuse or neglect. Māori are four times more likely than non-Māori to be killed by family violence (at [30]).

Furthermore, sexual violence and its effects are undeniable. One in three women and one in eight men experience sexual violence. However, fewer than 10 percent of sexual offences are reported to police (at [32]).

There is a call for alternative responses and greater levels of support for victims along with a change in the current procedures, so we can help understand sexual violence, rather than reinforce gender norms and damaging stereotypes which contribute to harm (at [34]).

He Waka Roimata points out the inadequacies of both formal and informal justice processes. Delays, inconsistencies within the formal process, inequitable outcome and a lack of alternative options outside of the formal process have added to the already broken system (at [36]).

All the people Te Uepū spoke to agreed that there needs to be consequences, holding people who harm others accountable (at [47]).

However, the Group gives prominence to the view that there is a serious over-emphasis on punitive measures (at [48]).

The likelihood of re-offending in New Zealand is high. This is because parole is not working and reintegration support upon leaving prison is not adequate to support people re-entering society (at [51]).

Broader determinants of crime

He Waka Roimata addresses the serious social system issues and how criminal justice and the social system cannot be separated.

Improvements in justice will only flow if there are improvements in education, housing and health. An overwhelming call for support in all other areas of the social system is a clear theme recognising the causative factors behind offending (at [54]).

Mental health, addiction and substance abuse

Finally, mental health, addiction, and drug and alcohol abuse is tackled as one of the key issues in New Zealand relating to wellbeing and the criminal justice process (at [62]).

The misuse and abuse of alcohol and other drugs was seen as a major driver of crime. 87 percent of prisoners have experienced an alcohol or other drug problem in their lifetime (at [64]). Punitive responses to drug misuse fails to understand and address the root of addiction (at [67]).

The question then is how can we help people who live with mental illness who offend, rather than resorting to prison? What extra training is needed to deal with these situations and what does “intervention” actually mean (at [65]).

Transformative change - easier to say than achieve

Te Uepū have set out a range of concerns with the current criminal justice system. All of these are well-known. Most, for some considerable time.

Perhaps the idea was that in gathering together these pieces and presenting them coherently, many more people would be persuaded that changes will have to be made. That a re-balancing will have to occur.

Perhaps it is tactically important to separate out the reporting of the problem from the release of recommended solutions. In 1988 the Secretary for Justice wrote a foreword to He Whaipaanga Hou: Part 2 that both commended and released that research to the world but also recorded his Minister's decision, already taken, that the main recommendation in the report be rejected outright.

Recommendations to effect transformative change can be expected as that concept has been signalled by the Group.

Talk of transformation is a high-wire act. Admirable and desirable as a call to action. Tremendously challenging to accomplish in the world we occupy.

Famously, John P. Kotter has written about how hard it is to achieve transformational change.[7] While his work may have been focused on the behaviour of corporates rather than public services and officials, many of the same warnings seem apposite on the lessons learnt from attempting organisational transformation. These include not establishing a great enough sense of urgency, not creating a powerful enough guiding coalition and failing to articulate and communicate the vision for change appropriately. The final warning, to anchor the change effectively in the organisation's culture, speaks of making change stick by having people accept that the changed approach is how they do things now even after the charismatic change champions have moved on.

Augmenting Te Uepū's report with media presence

We can see that talk of a safer and fairer criminal justice system with better outcomes for all is desirable. There seems no room to doubt that the current system is failing our communities. How will this change come about? What new systems will be put in place? How will this new system achieve change in all of these areas that need addressing?

It is worth finishing by considering the round of media interviews the Group's chairperson gave when He Waka Roimata was released.[8]

For all the careful phrasing in the report and distancing of Te Uepū from the views it was reporting, Hon. Mr Borrows gave a number of compelling accounts of his and the Group's work in response to media queries where he called a spade a spade. Topics included institutional racism, over-policing and over-charging along with the exercise of discretion by the State in ways that disproportionately affect targeted groups. Massive over-representation of Māori. Broader social determinants where positive changes, for example in income levels and housing circumstances, could affect reported criminal activity.

Here was a middle-aged Pākehā male and former National Party M.P. and Police officer fronting for a broadly representative group and speaking plainly. Setting out to convince others, especially in his demographic perhaps, that the present situation is not acceptable.

Who we, collectively, are most prepared to listen to says a lot about us. Reflecting on how much mainstream media time Mr Borrows obtained for Te Uepū and its work in the space of a few days, in comparison to the labours of academics and researchers over decades, leaves me wondering whether in 2019 we might just be ready to listen to the recommendations that will be made in August 2019 in ways that we were not in 1989.

Notes

Anna Dawson assisted with research and writing for this project.

[1] https://www.beehive.govt.nz/release/fixing-our-broken-justice-system-first-steps.

[2] https://safeandeffectivejustice.govt.nz/advisory-group/.

[3] For example, in relation to Māori, see Moana Jackson’s 1988 report, The Māori and the Criminal Justice System: A New Perspective: He Whaipaanga Hou: Part 2  (Department of Justice, November 1988). I understand a 30 year follow up report is in preparation. In relation to rehabilitation, see Ministerial Committee of Inquiry into the Prisons System (1989) Prison Review, Te Ara Hou: The New Way, chaired by Sir Clinton Roper.

[4] See Rumbles, W. (2011). ʺThree Strikesʺ sentencing: Another blow for Māori. Waikato Law Review. 19(2), 108-116 and the other sources cited there.

[5] https://www.beehive.govt.nz/release/three-strikes-repeal-not-going-cabinet.

[6] </a Radio New Zealand "Poor treatment of crime victims, Māori exposed in justice report" (press release, 9 June 2019).

[7] John P. Kotter, Leading Change; why transformation efforts fail (1995) May-June Harvard Business Review.

[8] For a sample of media reporting at the time the report was released see the following: https://www.stuff.co.nz/national/crime/113335762/a-vessel-of-tears-grief-and-colonialism-at-the-heart-of-criminal-justice-experience-report-says; https://www.rnz.co.nz/national/programmes/morningreport/audio/2018698860/nz-criminal-justice-system-not-fit-for-purpose-chester-borrows; https://www.rnz.co.nz/news/national/391658/time-for-cross-party-consensus-to-transform-justice-system-borrows; https://www.rnz.co.nz/national/programmes/first-up/audio/2018698842/justice-system-is-failing-people-needs-transformative-change; https://www.rnz.co.nz/national/programmes/thepanel/audio/2018698933/racism-and-poor-treatment-our-justice-system.

Author: Craig Linkhorn

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