JustSpeak - Maori and the Criminal Justice System - Rethinking ...

ensure young people are aware of their rights, particularly when detained or
questioned (further, rules should be modified to allow for whānau involvement in
this process). Legal education should continue to change, and Māori law should
be compulsory. A public defenders’ service should be set up, drawing on
precedents in Australia and the United States of America, to ameliorate problems
with the duty solicitors scheme. Jury rules should be revised, to allow for the
possibility that Māori might be tried by an all-Māori jury (to guarantee trial by
peers). Court staff should complete Māori education. There must be more Māori
involved in the Law Commission.
Caution must be used when courts are hosted on marae: this may constitute a
colonisation of Māori space. It is not good enough, says Jackson, for a pōwhiri
and karakia to be said, and then for courts to conduct “business as usual”.
Judges must be educated, and real thought should be given to allowing culture to
be taken into account at sentencing. Moreover, diversionary schemes used by
police must not get overly bureaucratised. Jackson proposes, imaginatively, that
it be possible that cases be referred to Māori community groups. The
Department of Justice does not escape Jackson’s scrutiny, either. It needs a
cultural advisory group; affirmative action to secure employment of those who are
expert in te ao Māori; a change in interview practices (to allow whānau support
groups to speak to applicants’ qualities); a renewed commitment to biculturalism
in training; and the use of secondments to iwi.
Most fundamentally, perhaps, Jackson says there may even be a need for a
separate Māori system of criminal justice. People accept institutions, processes
and sanctions when they have legitimacy. There is a real question, notes
Jackson, around whether the current institutions, processes and sanctions have
legitimacy for Māori. A separate system might resolve this legitimacy problem.
Such a solution would not constitute separatism. It would constitute a
commitment to equal results that are achieved through the use of different
procedures. The “one law for all” model is not achieving equal results, and
represents a system insensitive to difference. One side-effect of a separate
system is that the general law might benefit from being informed by experiences
in the Māori legal system.
The rights of Māori are not in doubt, says Jackson. Aboriginal rights exist;
international law affirms these rights; and it is now widely acknowledged that the
Treaty has legal standing. These factors must be translated into legal structures
that Māori want, such as perhaps a Māori Law Commission, a Centre for Cultural
Research, and a Māori sentencing panel. Tino rangatiratanga must be upheld,
and monoculturalism needs to be rejected. Jackson closes by saying that the
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