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Māori Over-representation in the Criminal Justice System – Does
Structural Discrimination Have Anything to Do with It?
A Discussion Paper
Kim Workman
Executive Director,
Rethinking Crime and Punishment
8 November 2011
Introduction
In recent years, politicians and senior public service managers, while openly acknowledging
the differential between Māori and non-Maori, have resisted the idea that there is any
deliberate ethnic bias, or evidence of personal racism in the system. The Hon Chester
Borrows, Associate Minister of Justice, in a recent address presented a view that typifies the
present political position. On the one hand, he acknowledged the existence of an issue; on
the other, he personally resisted the possibility of Police racism.
1

“In 2011, young Māori were prosecuted at a rate more than five times that for young
Pakeha, and 2.7 times more than young Pacific people. Young Māori make up nearly
half of those transferred from the Youth Court to the adult justice system. With the
Māori youth population predicted to grow faster than general population growth,
this problem is only going to increase.
This is an area I think is too prone to simplistic solutions. It's too easy to just blame
the Police for picking on young Maori. That's neither helpful nor, in my opinion,
particularly true.” 1
There is general agreement that adverse early-life experiences, and social and
environmental factors contribute significantly to high Māori, which in turn impact on
offending patterns. However, while there is evidence of structural discrimination within the
criminal justice system, and allegations of personal racism, there is a general reluctance to
conduct research into these areas. The absence of research thus enables politicians and
senior public servants to deny that such issues exist, in the absence of clear evidence to the
contrary.
This paper explores the issues of structural discrimination and personal racism within the
criminal justice system, and proposes a way forward.
Recent Research
Department of Corrections
In 2007, the Department of Corrections released an exploratory report providing an
overview of Māori over-representation within the criminal justice system. 2 It examined the
issue by considering the evidence for two different explanatory approaches:
that a range of adverse early-life social and environmental factors result in Māori
being at greater risk of ending up in patterns of adult criminal conduct.
1 Hon Chester Borrows, Speech to Auckland Youth Justice Mini Conference, 28 June 2012
2 Department of Corrections Over-­representation of Mäori in the criminal justice system: An exploratory
report. Wellington: Department of Corrections: 2007
2

that bias operates within the criminal justice system, such that any suspected or
actual offending by Māori has harsher consequences for those Māori, resulting in an
accumulation of individuals within the system;
The report examined the two approaches in the light of criminal justice data and research.
A range of developmental and early-age risk factors were discussed, each of which are
known to be associated with a developmental pathway that increases the risk of (among
other things) criminal involvement.
The extent to which Māori young people were disproportionately represented in these subgroups
was reviewed. The report found that, as a consequence of being exposed to a range
of risk factors in social, economic and family circumstances, the over-representation of
Māori in criminal justice statistics reasonably accurately mirrors the extent of criminal
involvement amongst Māori, particularly younger Māori males. Those life circumstances
most often associated with offending are, for a range of reasons, more likely to affect Māori
families.
The report noted that the two perspectives are by no means mutually exclusive, and both
approaches offer part of the explanation for the current statistics. The evidence pointed to
an interaction between the two processes, where the operation of one set makes the other
more likely. For example, early environmental influences may predispose individuals
towards certain types of illegal or anti-social behaviour, which in turn raises the risk of
Police involvement. Additionally, the risk of apprehension is “amplified” because of formal
and informal “profiling” by official agencies, as well as society generally.
The report examined the two approaches in the light of criminal justice data and research.
It concluded that:
• Disproportionality shows up strongly in Police apprehension figures, and a
number of studies indicate that ethnicity in and of itself could have an influence
in this area;
3

• Similar levels of disproportionality are recorded in prosecutions, convictions,
sentencing and reconviction figures, but most of the disproportionality relates to
known risk factors rather than ethnicity.
Ministry of Justice Report 2007
A 2007 report by the Ministry of Justice showed Māori are disproportionately represented
in criminal justice statistics to an alarming degree. 3 It offered two possible explanations for
ethnic disproportionality within the literature:
a) the differential involvement thesis holds that levels of ethnic disparity are largely, if
not solely, the product of differential offending by certain ethnic-­minority groups;
b) the discrimination thesis argues that levels of ethnic disparity should be understood
(at least in part) as the result of direct and indirect discrimination within the criminal
justice system and society more broadly.
The review concluded that a comprehensive policy approach should take into account each
of the different aspects of ethnic disproportionality identified above, and must involve:
a) addressing the direct and underlying causes of ethnic minority and indigenous
offending;
b) enhancing cultural understanding and responsiveness within the justice sector
(including increasing positive participation for ethnic minority and indigenous
groups, and improving public accountability via monitoring and publishing data on
rates of ethnic disparity);
3 Morrison, Bronwyn, Identifying and Responding to Bias in the Criminal Justice System: A Review of
International and New Zealand Research, (Ministry of Justice, November 2007)
4

c) developing responses that identify and seek to offset the negative impact of
“neutral” laws, structures, processes and decision making criteria on particular
ethnic-­minority groups.
The unanswered question is whether these discrepancies occur because of differential
offending patterns by Maori, a lack of cultural responsiveness, or the negative impact of
laws, structures, processes and decision making criteria. Alternatively, do personal racist
and discriminatory attitudes held by individuals or groups of individuals interconnect with
these practises and processes which result in evidence of ethnic bias? Is it the nature of the
system, or practise within it?
Drivers of Crime Strategy 2009
In 2009, the government established the Drivers of Crime Strategy to address the underlying
causes of criminal offending and victims' experiences of crime. It recognised that certain
circumstances of people's lives are associated with a greater likelihood of offending and
victimisation. The drivers of crime were to represent the most difficult problems in our
society today - stemming from risk factors within family, community and educational
environments.
By 2011, work to address the Drivers of Crime was separated into four priority areas.
Improving maternity and early parenting support
Addressing conduct and behaviour problems in childhood
Reducing harm from alcohol and improve treatment
Managing low-level repeat offenders
While cross-sector work on issues of offending by Māori was carried out in all four priority
areas , there is no evidence that any work was done to address the concerns about systemic
bias within the criminal justice system. There is one reference to the issue in Te Puni
Kokiri’s contribution to the Drivers of Crime strategy. In its report, it includes. ‘Action at
5

policy and practice levels to address community and systemic factors’. 4 As one of five key
operational directions to improve effectiveness and value for money in addressing the
Drivers of Crime. i.e
Resistance to the Idea of Systemic Bias and Personal Racism
The idea of systemic bias within the criminal justice system has been resisted by
government agencies over recent years. . When the Hon Dr Pita Sharples, Co-Leader of the
Māori Party, launched the parties Justice Policy on1 October 2011, he spoke about the
structural discrimination against Māori within the criminal justice system in general, and the
Police in particular. 5 There was an expected public backlash against the comments, and
when invited to comment, Rethinking Crime and Punishment issued a media release citing
research which supported Dr Sharple’s view. 6 Dr Sharples was interviewed on Q and A on
the 9 Oct. On the 14 th October, Commissioner Peter Marshall came to the defence of his
staff in an interview on Te Karere. 7 He did not agree there was a racial bias in Police
dealings with Maori.
The issue was vigorously discussed on talkback radio, and most of the comment supported
the Commissioner’s position. Some commentators reproached Dr Sharples for his claims,
and the then Minister of Police, the Hon Judith Collins, publicly chastised him for being ‘out
of order’. It is unclear whether Dr Sharples public statement was motivated by the
forthcoming election, by personal experience and frustration, or by evidence that he had
acquired in his role as Associate Minister of Corrections, and Minister of Māori Affairs.
4 Te Puni Kokiri, ‘Addressing the Drivers of Crime for Māori ’ Briefing Paper 2011-14.
5 Justice System Discriminates Against Maori, NZ Herald, 1 Oct 2011.
http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10755915
6 Claims Evidence Supports Sharples View on Prejudiced Police TVNZ News: http://tvnz.co.nz/politicsnews/claims-evidence-supports-sharples-view-prejudiced-police-4430216
7 “Top Officer Rejects Maori Party’s attack on Police Te Karere News, 14 th October 2011.
http://maorinews.com/karere/2011/top-officer-rejects-maori-partys-attack-on-police/
6

Distinguishing between Structural Discrimination and Personal Racism
The general public is extremely sensitive in regard to allegations of discrimination, and
often fail to distinguish between issues of structural discrimination and personal racism. Dr
Sharples talked initially about structural discrimination; and it is important not to reinterpret
that to mean personal racism. In a recent Human Rights Commission discussion paper, 8 , it
introduces the idea of structural discrimination in this way:
Embedded social disparities persist despite numerous interventions over the past
several decades. The Human Rights Commission’s annual review of race relations,
‘Tūi Tūi Tuituiā Race Relations in 2010, notes: 9
Despite the many efforts of communities and successive governments, social
and economic inequalities, accentuated by the economic recession, remain
unacceptably high. An unrelenting focus on the elimination of racial
inequalities is needed, so that future generations of New Zealanders are free
from this blight. It is also time to examine whether there are still systemic or
institutional barriers to racial equality that need to be addressed to make
other interventions more effective.
The review lists “identifying and working to remove any structural or institutional barriers to
racial equality in the enjoyment of civil, political, social and economic rights” as one of the
top 10 race relations priorities for 2011.
The HRC’s discussion paper on structural discrimination was intended to further the
Commission’s commitment to addressing structural barriers to ethnic equality. “ It defines
structural discrimination as:
Structural discrimination (also referred to as indirect discrimination or institutional
racism) refers to practices, norms and behaviours within institutions and social
structures which have the effect of denying rights or opportunities to members of
8 Human Rights Commission, “Structural Discrimination – the need for systemic change to achieve racial
equality”, A Discussion Document, August 2011
9 Human Rights Commission (2011) Tūi Tūi Tuituiā: Race Relations in 2010
7

minority groups, keeping them from achieving the same opportunities available to
the majority group. Structural discrimination can occur both intentionally and
unintentionally. The term is also used in relation to more informal practices which
have become embedded in everyday organisational life and effectively become part
of the system, “how we do things around here.” 10
The State Services Commission has described structural discrimination as follows i :
Structural (often referred to as systemic) discrimination occurs when an entire
network of rules and practices disadvantages less empowered groups while serving
at the same time to advantage the dominant group.
The discussion paper goes on to distinguish between structural discrimination and personal
racism.
It is important to note the difference between individual (or personal) racism and
institutional racism. While both forms of racism have negative implications for
marginalised groups, individual acts of racism often receive more public attention as
they are often overt and easier to identify than entrenched less visible forms of
racism within institutional policies and practices. ………..While individual level racism
affects a modest number of individuals, a racist institutional policy can systematically
disadvantage many members of a racial group, and the consequences can endure for
many years, even for generations. ii
Personal Racism within the Criminal Justice System
It is to some degree unfortunate that what research there is about the existence of personal
racism within the criminal justice system, focuses on Police behaviour and attitudes. The
actions of public servants from Courts, Corrections and other agencies are largely concealed
from public view. Police business however, is public business. Every action and encounter
10 State Services Commission (1997). EEO Policy to 2010: Future Directions of EEO in the New
Zealand Public Service. Retrieved from http://www.ssc.govt.nz/eeo-policy-to-2010
8

is measured, monitored and talked about. If there is a perception of Police racism, it very
quickly becomes a matter of public discussion. Before long, perception becomes reality.
Historically, the State has not been neutral, and agencies such as the police have actively
policed Māori throughout New Zealand history. Likewise, Pacific peoples as an ethnic group
have been the targets of active policing. In the 1970s, the ‘Dawn Raids’ against Pacific
peoples by the New Zealand Police and immigration officials reflected a discriminatory
practice out of proportion of the actual incidence of offending. 11
In a recent publication, Kylee Quince summarized the evidence around police perceptions of
Maori. 12 Research conducted in 1998 in conjunction with the police and Te Puni Kokiri
assessed both Māori perceptions of the police and police perceptions of Maori. The Māori
research participants were unanimous in their perception that “the police institution is a
racist institution that perpetuates strong anti-Māori attitudes.” 13 . Participants related
numerous examples as evidence, including being stopped and questioned on the pretext of
criminal offending, verbal racist abuse, physical abuse during arrest, and disrespect for
tikanga Maori. 14 Variables that were identified as relevant in influencing Police behaviour
included: police perceptions about a person’s ethnicity, physical appearance, gender, class,
associates, and whanau name. Many respondents thought that police often provoked Māori
into verbally and/or physically retaliating to justify arrests. The result of these perceptions is
that some people stated a strong attitude of distrust towards the police, such that they
would be hesitant in going to them for assistance, or in providing assistance to police if
asked. These were generalised attitudes, prevailing across all ages, income levels,
educational levels, gender and geographical locations.
The parallel research on police perceptions of Māori often matched some of the negative
attitudes perceived in the Māori study. For example, at least two thirds of the 737 police
11 Hill, R. (2008). Māori, police and coercion in New Zealand history. In D. Keenan (Ed.), Terror in our midst?
Searching for terror in Aotearoa New Zealand. Wellington: Huia Publishers.
12 Quince, Kylee, Maori and the criminal justice system in New Zealand, in Criminal Justice in New Zealand (ed)
Julia Tolme and Warren Brookbanks, Wellington:LexisNexus NZ Ltd: 2007)
13 P Te Whaiti and Dr M Roguski Maori Perceptions of the Police Wellington, He Parakeke, 1998, G Maxwell and
C Smith Police Perceptions of Maori Victoria University of Wellington, Institute of Criminology, 1998.
14 P Te Whaiti and Dr M Roguski Maori Perceptions of the Police Wellington, He Parakeke, 1998, Summary and
Recommendations.
9

espondents reported hearing colleagues use racist language about Maori. Many reported a
greater tendency to suspect Māori of an offence, or to stop and query Māori driving “flash”
cars. Overall, the data suggested that about 25 per cent of police have negative attitudes
towards Maori. 15
Earlier research with Māori has shown that Māori satisfaction with the Police was below
the New Zealand average. 16 More recent research has revealed that Māori have a strong
distrust of the Police and feel that the Police exhibit anti-Māori attitudes and practices
NZCASS findings provide support for the position that Māori are not as satisfied with Police
as Europeans. 19
17 18
In more recent times, there has been growing anecdotal evidence of, and widespread Māori
dissatisfaction with, the extent of ethnic profiling, especially with young people. Rethinking
Crime and Punishment receives information on a regular basis about such incidents. One
contributor provided an internet link to a TV3 programme, which 16 min 50 sec into the
programme, showed a ‘routine’ stop of four Māori youth. 20 They were held at gunpoint by
the Police, and without reasonable cause, searched. A small amount of cannabis was found,
and the owner warned. There was neither an explanation nor an apology. The contributor
asked the question – would that happen to a carload of Pakeha?
Māori youth are not the only ones singled out for attention. A successful Māori business
woman aged around 40 years reported that she .purchased a BMW car and was stopped
seven times by the Police within the first two months. She has since downsized.
15 G Maxwell and C Smith Police Perceptions of Maori Victoria University of Wellington, Institute of
Criminology, 1998, Summary and Recommendations. Note that of the 737 police respondents, 8 per cent of
the sample identified as Maori.
16 MRL Research Group. (1995). Public attitudes towards policing. Wellington: New Zealand Police National
HeadquartersNew Zealand Police.
17 .MM Research. (September, 2002). Annual survey of public satisfaction with Police service. Wellington:
18 James, B. (2000). Challenging perspectives: Police and Maori attitudes toward one another. Wellington:
Te Puni Kokiri and New Zealand Police.
19 Cunningham.C., Sue Triggs and Sally Faisandier, Analysis of the Maori Experience: Findings from the New
Zealand Crime and Safety Survey 2006, Ministry of Justice, 2009.
20 http://ondemand.tv3.co.nz/Drug-Bust-Season-1-Ep-3/tabid/59/articleID/2723/MCat/323/Default.aspx
10

There is no local research on the issue of ethnic profiling, but the possibility that certain subgroups
of the population are more susceptible to Police stopping and checking is a
reasonably well-researched issue. Coleman and Norris have noted in their study of policing
practices internationally, the over-policing of ethnic groups that are viewed as more
criminally prone can have the effect of increasing their arrest rates and entry into the
criminal justice statistics as offenders. Further research is required into the policing of Māori
and Pacific peoples. 21
According to the Department of Corrections report: 22
“A considerable number of arrests follow from Police stopping and questioning
individuals in public places. From the perspective of “amplification”, differences in
apprehension could therefore result from some bias in policing practice. Younger
age, certain styles of clothing and headgear, hairstyles, type of car driven, and
incongruity of person with time or location are all known to trigger Police suspicion.
Research conducted in the UK indicated that ethnicity also influenced Police officers’
decisions to stop and question potential offenders 23 . One US study. found that African
American male drivers were more likely than other groups to be stopped by the
Police. Similar findings emerged in some UK studies. 24
The Police have not remained idle in working to improve the Police-Māori relationship. The
Māori Responsiveness Strategy within the Police is of a high calibre. The establishment of
Iwi Liaison Officers, of the Cultural Advisory Groups at both regional and national level, and
the support given to Iwi Crime Prevention Strategies, are evidence of a determined effort to
address the needs of Maori, whether victims, offenders, or iwi and Māori organisations. The
current Policing Excellence Strategy, including the focus on alternative dispositions, and
neighbourhood policing, may well address some of the issues outlined in this paper.
21 Coleman, C. & Norris, C. (2002). Policing and the police: Key issues in criminal justice. In Y. Jewkes, & G.
Letherby (Eds.), Criminology: A reader. London: Sage.
22 Ibid Department of Corrections p.14.
23 Lundman Richard J & Kaufman Robert L (2003) Driving while black: effects of race, ethnicity, and gender on
citizen self-reports of traffic stops and Police actions. Criminology 41 (1) 195-219
24 See for example, The Stephen Lawrence Inquiry (1999) http://www.archive.officialdocuments.
co.uk/document/cm42/4262/sli-06.htm.
11

Structural Discrimination within the Criminal Justice System
Racist and discriminatory attitudes held by individuals are often interconnected with
structural discrimination. As a starting point therefore, , it is useful to focus on structural
discrimination in the hope that systemic change may improve individual attitudes.
A 2009 report by the Ministry of Justice showed Māori are disproportionately represented
in criminal justice statistics to an alarming degree. 25
100%
80%
60%
40%
43% 45%
39%
43%
35%
48%
53%
20%
14%
0%
Population Apprehensions Prosecutions Other
Outcomes
Convictions
Monetary
Sentences
Community
Sentences
Custodial
Sentences
As the above Figure demonstrates, in 2006 Māori were over- represented at different
stages of the criminal justice process population.
Further exploration of the data showed that in 2007:
Māori were four to five times more likely to be apprehended, prosecuted and
convicted than their non-­Māori counterparts. 26
25 Morrison, Bronwyn, Identifying and Responding to Bias in the Criminal Justice System: A Review of
International and New Zealand Research, (Ministry of Justice, November 2007)
26 This analysis was based on NZ Police and Ministry of Justice data from 2007, extracted from the justice
System (ISIS), in April 2009. Rates of disproportionality (or over-­representation) were calculated using
residential population figures from population projections calculated using 2006 Census data.
12

Māori were also 7 ½ times more likely to be given a custodial sentence, and eleven
times more likely to be remanded in custody awaiting trial
27 28 29
These rates have been found to vary by both age and gender. For example,
Māori aged 10 to 13 were almost six times more likely to be apprehended than their
New Zealand European counterparts.
Māori aged 17 to 20 were three times more likely to be so.
Māori women were 5 ½ times more likely to be apprehended and ten times more
likely to receive a custodial sentence than New Zealand European women.
Māori men were over four times more likely to be apprehended and seven times
more likely to receive a custodial sentence than their NZ European equivalents.
Levels of disproportionality also differed by offence. Māori are:
Just over three times more likely to be apprehended for drug-­related offences,
Seven times more likely to be apprehended for offences against justice 30
Almost six times more likely to be apprehended for violent offences compared to
New Zealand Europeans.
27 Ministry of Justice (2006) Mäori and Pacific Peoples (Paper 11) Unpublished Cabinet Paper. Wellington:
Ministry of Justice.
28 Department of Corrections Over-­representation of Mäori in the criminal justice system: An exploratory
report. Wellington: Department of Corrections: 2007
29 Doone, P (2000) Report on combating and preventing Mäori crime: Hei whakarurutanga mö te ao.
Wellington: Crime Prevention Unit, Ministry of Justice and Department of the Prime Minister and Cabinet.
30 The offences against justice category is largely comprised of sentences involving a breach of a sentence
condition (particularly breaches of community work sentences), release condition, or protection order, and the
failure to answer bail.
13

system, the custodial remand of prisoners, and sentencing practices in relation to domestic
violence.
The Criminal Justice System
Former Police Commissioner Peter Doone reinforced this point in his research, when he
said:
Criminal Justice data shows that Māori are over-represented at every stage of the
Criminal Justice process. In 1998 they were 3.3 times more likely to be apprehended
for a criminal offence than non-Mäori. They were more likely to be prosecuted, more
likely to be convicted, and more likely to be sentenced to imprisonment. The result
was that Māori made up 14 percent of the general population and 51 percent of the
prison population. These gaps are widening, not narrowing. 34
Doone makes the point that issues of personal racism and structural discrimination are not
confined to the Police, and there is prima facie evidence for biased practice throughout the
criminal justice system.
The Youth Justice System
In 2003, a Department of Social Development report showed that:
Young Māori who entered the youth justice system did so with, on average, less
severe offences than non-Maori.
Young Māori who entered the youth justice system in this study had a similar range
of backgrounds and risks to those who were identified as non-Mäori. In other words,
socio-economic factors did not appear to explain the differences in terms of the
numbers of Māori young people entering the youth justice system.
34 Doone, P, Hei Whakarurutanga mä te Ao: Report on combating and preventing Mäori Crime, Crime
Prevention Unit, Department of the Prime Minister and Cabinet, Wellington, 2000
15

Those who ‘solely’ identified as Māori experienced greater risks than those who
identified as mixed-Mäori.
Young Māori were more likely to receive outcomes involving orders for supervision
either in the community or in a residence. This appeared to be independent of the
seriousness of their offences
Young Māori were more likely to be dealt with in the Youth Court than were young
Pākehā (71% compared with 56%). This meant that a more severe range of
outcomes were available for these Māori than for those dealt with solely through a
family group conferences by the police. 35
The report noted that it was important that the police ensure that they are not responding
differently when a report is received about the behaviour of young Māori compared to
young Pakeha, or when an offender is apprehended. Previous research has showed that
most officers believed that some officers behaved differently when a young person who was
reported as offending was identified as Māori. Furthermore, in this study, it appeared the
decision to charge a young person in the Youth Court varied geographically. In some areas,
other things being equal, Māori were more likely to be charged than Pākehā
Judge Andrew Becroft, in an address to the Police Conference, in 2005, 36 pointed out that:
Ministry of Justice statistics showed the apprehension rate for Māori youth aged 14
to 16 is more than twice as high as the rate for all young people and more than three
times the rate for young people of other ethnicities. Figures also revealed that the
Māori youth apprehension rate varies around New Zealand but that the highest rates
are found in centres with relatively small Māori populations such as Tasman and
Canterbury. In these centres, the rates were 52.7% higher than the national rate.
35 “Achieving Effective Outcomes in Youth Injustice: An Overview of Findings; Department of Social
Development, Feb 2004. http://www.msd.govt.nz/documents/publications/csre/achieving-effectiveoutcomes-youth-justice-overview.pdf
36 Becroft, Andrew,” Offending by Maori”, Police Management Conference, Nelson, November 2005.
16

Remand prisoners
Other regions with high Māori youth apprehension rates were Bay of Plenty,
Wellington and Waikato. 37
Custodial Remands
According to the 2011 Offender Volumes Report, the over-representation of Mâori in the
remand population is more pronounced than in the sentenced population.
1,200
1,000
800
600
400
200
-
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Balance date
Asian European Māori Pacific Unknown
The current view is that the high number of Māori prisoners remanded in custody is partly
explained by the fact that Māori are over-represented in the number of people charged with
offences that are more likely to result in remand in custody, such as aggravated robbery and
burglary. However this does not entirely account for the difference. A lack of access by
Māori to appropriate support services by was identified as a contributing factor in a 2006
Cabinet Paper. 38
Unfortunately, there is no available current research. O’Malley’s 1973 analysis of
Magistrates’ Court data found similar rates of granting of bail and “demand for surety” for
Māori and non-Māori, but experience then diverged. . Māori were less likely to arrange
37 Ministry of Justice, Youth Apprehension Rates by Ethnicity, 2004.
38 Cabinet Paper ‘ Effective Interventions’ Paper 4: Remand in Custody.
17

surety for bail (usually for financial reasons) and this reduced their ability to obtain legal
advice. They were only half as likely to have legal representation, and more likely to plead
guilty, - which O’Malley attributed to different attitudes and, again, lack of legal
representation. 39 .
The Ministry of Justice published a report on offending on bail in New Zealand in 1994, but
did not include any ethnic breakdown of bail statistics. 40 A more recent report by the
Department of Corrections, showed that Māori account for the largest proportion of
remand custody starts, and that the number of Māori remand custody starts has increased
more rapidly than other ethnic groups 41 However, the report did not include any detailed
discussion or further analysis on the Māori remand population.
Based on a dataset provided by the Ministry of Justice we have calculated the relative
likelihood of Māori being remanded in custody relative to European defendants. The
dataset is materially equivalent to the data used by the Ministry to develop bail policy.
Some small variations will have arisen because the data is constantly changing due to cases
being updated as a result of appellate decisions.
Across all offending Māori are 1.96 times more likely than Europeans to be remanded in
custody . 42 In relation to two major groupings of offences, Serious Class A Drug Offences
(Class A) and Serious Violent and Sexual Offences (SVSO) it might be expected that the gap
would narrow, and that the seriousness of the offences would result in a narrowing of the
gap.
This does occur in relation to Class A offences. Māori are 1.31 times more likely than
Europeans to be remanded in custody.. 43 . However, there is little impact in relation to
39 O'Malley, P. (1973a) The Amplification of Māori Crime: Cultural and Economic Barriers to Equal Justice in
New Zealand. Race, Vol. 15, No. 1, July.
40 Lash, B. (2006) Conviction and Sentencing of Offenders in New Zealand: 1995 to
2004. (with Fleur Watson for Chapter 7) Ministry of Justice, Wellington, New
Zealand.
41 Harpham, D. (2004) Census of Prison Inmates and Home Detainees 2003.
Department of Corrections, Wellington.
42 This figure is statistically significant (95% CI 1.929 – 1999).
43 This figure is statistically significant (95% CI 1.106 – 1.555)
18

SVSO offences with Māori 1.87 times more likely than Europeans to be remanded in custody
44 45
at some time. In
other words, Māori who appear before the Court on serious violence
and sexual offences are almost twice more likely to be remanded in custody than
Europeans.
A similar situation exists in Australia. Aboriginal people and Torres Strait Islanders were
held on remand at a rate of 583 per 100,000 population compared with the overall NSW
rate of 49 per 100,000. 46 Between 2001 and 2008, the number of Indigenous adults on
remand rose 72%. 47
Bail refusal rates are also higher for Indigenous people. In the New South Wales Local Courts
in 2010, 15.4% of Indigenous people were bail refused on finalisation of their matter, nearly
three times higher than the proportion of non-Indigenous people (5.5%). 48
While there has been no New Zealand research to determine whether there is a difference
between Māori and European custodial remands , Australian research shows that Aboriginal
defendants are likely to have more restrictive (and often unrealistic) bail conditions
imposed, leading to higher rates of bail breaches in comparison to ethnic-­majority
defendants. 49
What these statistics suggest is that when the justice system sets out to get tougher, it has a
bigger impact on Māori than on non-Maori; which in turn contributes to disproportionality
in Māori representation. Article Three of the Treaty of Waitangi provides Māori with rights
of equal citizenship, and any legislation that has a different impact on Maori, jeopardises
that relationship.
44 This figure is statistically significant (95% CI 1.799 – 1.952).
45 .. This . refers to those sub-populations who appear before the Court and are the subject of bail decisions.
46 Corrective Services, Australia 4512.0 (Australian Bureau of Statistics, December 2011). The disparity
between Indigenous and non-Indigenous remand rates is even greater as the overall remand rate includes
Indigenous people.
47 J Fitzgerald, Why are Indigenous Imprisonment Rates Rising? Bureau Brief No 41 (NSW Bureau
of Crime Statistics and Research, 2009).
48 NSW Bureau of Crime Statistics and Research (jh11-9943).
49 Blagg, H, Morgan, N, Cunneen, C and Ferrante, A (2005) Systematic racism as a factor in the over-
­representation of Aboriginal people in the Victorian criminal justice system. Melbourne: Equal Opportunity
Commission and Aboriginal Justice Forum.
19

Variances in Sentencing for Family Violence
Convictions for domestic violence offences are very high for both Māori and Pacific
Islanders. However, compared with Pākehā the rate of convictions for Māori are about 10
times higher and for Pacific Islanders about 4 times higher.
In the view of Hook, 50 , any judicial system that achieves such excessively high conviction
rates against any minority ethnic group as compared with the majority must be viewed with
a degree of suspicion. Custodial sentences handed down to Māori run about 15 to 18 times
higher than Pākehā when considered per unit of ethnic population and about 3.5 times
higher for Pacific Islanders. Other forms of sentencing also run exceptionally high for both
ethnicities. These data suggest that either both Māori and Pacific Islanders are much more
violent than Pākehā, or there is a bias against Māori and Pacific Islanders within the criminal
justice system. .
Criminologist Robert Webb advises caution in interpreting this data;
As Hook illustrates in his work, there appears to be different sentencing outcomes for ethnic
groups, but why this is occurring is not so clear. Understanding the differential sentencing
outcomes is difficult with the information available to researchers. It is difficult to ascertain
whether it is a combination of sentencing factors such as age, socio-economic status and the
seriousness of the offence; whether specific legislation such as the Sentencing and Parole
Acts 2002 have increased prison numbers for specific ethnic groups or all groups as a whole;
50 Hook, G.R. (2009b). The criminalization of Māori and Pacific Islanders under the Domestic Violence Act 1995.
MAI Review, 3, Target article 2, 12 pages.
20

or whether there are other social processes occurring in sentencing itself for Māori and
Pacific peoples. 51
Comparative Research
Comparing similar research over time, may help to understand whether these issues are of
recent origin, or have been in existence for some time.
Police Adult Diversion
In 1998, Kim Workman and Associates, together with Whetu and Tumanako Wereta, and
Christine Laven of the Prime Minister’s Crime Prevention Unit, were commissioned by the
Police to conduct research into the low level of Māori participation into the adult diversion
process-, and to propose the development of a Kaupapa Māori adult diversion model. 52
While there was no significant statistical disparity nationwide, there was evidence of
regional difference, with the eligibility criteria interpreted and implemented differently in
each district. The general approach to previous youth convictions excluded large numbers
of Māori from the adult diversion process, particularly in relation to convictions for burglary
and unlawfully taking motor cars.
Police practise did not encourage the presence of whänau or support persons at interview, and
offenders had little say in determining the outcome. Victims were dealt with indirectly, and no
effort was made to engage the victim in the process. While Police guidelines stated that the
diversion scheme lent itself to the involvement of the community, Māori were not involved in
providing support and advice to the Police, nor were they actively engaged in development of
diversion programmes for offenders. Rather, they were the passive recipient of offender referrals,
once the Police had decided that such a referral was appropriate. Nor were Māori organisations
and providers visible as recipients of offender donations, supervisors of community work, or
providers of services. They did not feature on the lists of charity organisations, or in any significant
51 Robert Webb, ‘Māori, Pacific peoples and the social construction of crime statistics’, MAI Review, 2009, 3,
Peer Commentary 2
52 Workman, Kim “Police Adult Diversion: Increasing Maori Participation” 1998, a report for the New Zealand
Police.
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way as agencies for offender referrals. Diversion Coordinators had very limited Māori networks, and
their knowledge of Māori community and organisational structures was poor.
One feature of the findings, was the regional variation in Māori diversion. For example:
In Tauranga Caucasians were increasingly likely to be diverted from 1993 to 1995,
from 61.4% to 71.4%, whilst Māori offenders proportionately became less - from 35%
to 25%. By 1997 the ration had improved for Māori increasing to 36.8% and
Caucasian decreasing to 57.4%.
The report commented that
For Māori, the most successful outcome will be an awareness that the Police are
prepared to engage Māori in the design, planning and delivery of the Adult Diversion
Scheme in a way which embraces Māori philosophy, involves whänau and community
in the key processes, and provides the opportunity for Māori service providers to
deliver culturally appropriate programmes, “for Māori - by Māori”.
In conclusion, the report commented on the general view of the Police toward Māori:
Underlying the diversion activity was a view that to do anything “special” for Māori
was to encourage the development of a separate justice system. 53
Pre-Charge Warnings
Twelve years later, similar issues emerged from the department’s review of pre-charge
warnings. 54
“The regional monitoring data showed that, between November 2009 and May 2010,
12% of charges against Pacific offenders, 9% of charges against Asian offenders, 9%
53 Workman, Kim “Police Adult Diversion: Increasing Maori Participation” 1998, a report for the New Zealand
Police.
54 O’Reilly, Justine,” New Zealand Police Pre-Charge Warnings Alternative Resolutions” Evaluation Report,
Evaluation Services Team, December 2010.
22

of charges against European offenders, and 7% of charges against Māori offenders
were resolved by pre-charge warning. The lower proportion for Māori may reflect a
misapprehension in the Auckland District that pre-charge warnings could not be
granted to those with prior offending histories. 55 “
And further
“Figure 11 and Figure 12 and the regional monitoring data show what could be
interpreted as an ethnic bias against Māori having a Disorder and Breach of liquor
ban offence resolved by way of a pre-charge warning, particularly in the Auckland
District. However the apparent ethnic bias could reflect the misapprehension in the
Auckland District that pre-charge warnings should not be granted to people with
prior offending histories, which Māori are on average more likely to have. This area
needs to be monitored and once the e-custody module is available across the region
it will be possible to analyse the interaction between ethnicity and prior offending in
more depth. 56 “
This district variation in police practice, seems to be an ongoing feature, and may be the
reason why in some districts, more than others, Māori overrepresentation is publicly
attributed mainly to ethnicity, rather than to other contributing factors.
Apprehension for Cannabis Related Offences
One of the most cited examples is the Christchurch study of Māori cannabis users, which
showed that police practices toward Māori were out of proportion with their actual
offending. 57 . Māori cannabis users were arrested at a substantially higher rate than other
users of the drug. The study found that on the basis of equivalent usage, Māori experienced
arrest at three times the rate of non-Māori users. The study indicated Māori experienced
bias from the policing of this area.
55 Supra: 11
56 Supra: 28
57 Fergusson, D., Swain-Campbell, N., & Horwood, L. (2003). Arrests and convictions for cannabis related
offences in a New Zealand birth cohort. Drug and Alcohol Dependence, 70(1), 53–63.
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The issue of structural discrimination and ethnic bias runs across the criminal justice sector.
The Police are at the front end of the system, and particularly vulnerable. They are also in a
position to take a lead to actively enquire into the issues, and be proactive in addressing
them.
Concluding Comment
The Waitangi Tribunal’s recent report Ko Aotearoa Tēnei poses solutions to inequalities that
are based on a fundamental shift in attitude and approach by the Government 58 :
Unless it is accepted that New Zealand has two founding cultures, not one; unless
Māori culture and identity are valued in everything government says and does; and
unless they are welcomed into the very centre of the way we do things in this
country, nothing will change. Māori will continue to be perceived, and know they are
perceived, as an alien and resented minority, a problem to be managed with a
seemingly endless stream of taxpayer-funding programmes, but never solved.
This is not an issue that can be dealt with by responding to individual complaints about
Police racism or structural discrimination. A basic and fundamental shift in attitude is
required. Defending and justifying Police and Justice sector behaviour will not bring about
necessary change.
Commitment to a sector-wide review of systems and practises across the Justice Sector is
required.
The Justice Sector Leadership Board
There is now a mechanism which has the potential to manage change. In 2011, a Sector
Leadership Board - comprising of the chief executives of Police, Justice and Corrections - was
established. The Board, with the Secretary for Justice as its chair, is responsible for driving
performance across the justice system, coordinating the major change programmes
58 Waitangi Tribunal (2011). Ko Aotearoa Tēnei
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underway and collectively planning to modernise the sector, reduce costs, improve services,
and further enhance public safety. The Board is supported by a Sector Group within the
Ministry of Justice. In addition, the Justice Sector Fund, established in May 2012, is a
funding pool that allows savings to be transferred between justice sector agencies and
across years.
The government’s ‘Reducing Crime and Reoffending Action Plan’ will be a major focus for
the Justice Sector Leadership Board, and presents an ideal opportunity to ensure that in all
its work, it (in the words of the 2007 Ministry of Justice report),
a) addresses the direct and underlying causes of ethnic minority and indigenous
offending;
b) enhances cultural understanding and responsiveness within the justice sector
(including increasing positive participation for ethnic minority and indigenous
groups, and improving public accountability via monitoring and publishing data on
rates of ethnic disparity);
c) develops responses that identify and seek to offset the negative impact of “neutral”
laws, structures, processes and decision making criteria on particular ethnic-
­minority groups.
Kim Workman
Executive Director
Rethinking Crime and Punishment
8 th November 2011
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