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

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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 16
need for practical implementation of these ideas is a long-term project, but commitment to the validity of the overall approach is a short-term necessity. Enduring insights 2. JustSpeak proposes that attention be paid to the interconnectedness of problems surrounding Māori and the criminal justice system, the possibly endemic nature of problems in the system, and solutions that are available to these challenges. Moana Jackson’s report is comprehensive, detailed, and at times freewheeling in its diagnoses and prescriptions. Three aspects of the report stand out today, making it a useful reference point for any contemporary consideration of issues around Māori and the criminal justice system. First, Jackson’s report raises many interesting questions about the interrelated nature of societal ills. Jackson uses the metaphor of a “weave” throughout the report, and this neatly illustrates his belief that issues of justice, healthcare, education, and history are linked. The connections Jackson draws are fascinating, and suggest that a broader vision of what is encompassed by “criminal justice” is appropriate and necessary. The connections Jackson draws should prompt hard thinking about how embedded the problems are, and how comprehensive the solutions have to be to address the more negative experiences of Māori in the criminal justice system. Secondly, Jackson’s analysis sparks debate because of how deep his criticisms are of courts, the police, prisons, the public service, and other actors in the criminal justice system. Jackson is unapologetically blunt in his comments about the defects in attitudes and systems. This approach forces us to challenge our assumptions about the core tenets of justice. The uncompromising approach directs readers to investigate further whether the criminal justice system is as broken as Jackson suggests. Thirdly, any reader would be struck by the breadth and depth of the solutions proposed in He Whaipaanga Hou. Jackson’s report cannot be criticised for providing a sweeping critique and then omitting to look to solutions. Throughout he offers suggestions for how the criminal justice system might be changed to avoid the problems he identifies. Some of these suggestions relate to attitudes and values (but are not to be dismissed simply because such suggestions cannot 17
Page 1 and 2: Māori and the Criminal Justice 201
Page 3 and 4: Māori and the Criminal Justice Sys
Page 5 and 6: Preface JustSpeak Background JustSp
Page 7 and 8: Executive Summary In 1988 Moana Jac
Page 9 and 10: Contents Preface 5 Executive Summar
Page 11 and 12: ainstorming about Māori and the cr
Page 13 and 14: connected, for example, to trauma a
Page 15: must be committed to a change of at
Page 19 and 20: Part Three: The Context Today Stati
Page 21 and 22: Statutory reform In the past decade
Page 23 and 24: A recent judicially-led initiative
Page 25 and 26: Ongoing deficiencies 3. JustSpeak b
Page 27 and 28: Part Four: Summary of JustSpeak For
Page 29 and 30: there does need to be a difference
Page 31 and 32: This Part builds on the ideas float
Page 33 and 34: Just as Jackson’s report raised m
Page 35 and 36: ackground in imposing a sentence or
Page 37 and 38: of Waitangi. Under s 65 of the Huma
Page 39 and 40: Conversations and change on a small
Page 41 and 42: Part Six: Further Questions This Pa
Page 43 and 44: There is a need to focus on proven
Page 45 and 46: Part Seven: Conclusion As noted at
Page 47: Bibliography R v Bhaskaran CA333/02

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