JustSpeak - Maori and the Criminal Justice System - Rethinking ...
JustSpeak - Maori and the Criminal Justice System - Rethinking ...
JustSpeak - Maori and the Criminal Justice System - Rethinking ...
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of Waitangi. Under s 65 of <strong>the</strong> Human Rights Act 1993, <strong>the</strong> government must not<br />
discriminate indirectly against citizens; that is, it must not act in a way that has<br />
<strong>the</strong> effect of discriminating, even if that is not <strong>the</strong> intention of legislation or<br />
executive behaviour. Guaranteeing that justice policy is screened to avoid<br />
discriminatory effects would contribute towards government fulfilling its<br />
obligations in this regard.<br />
The Treaty also arguably requires this screening, in at least two ways. First,<br />
Article Three of <strong>the</strong> Treaty provides Māori with rights of equal citizenship. Equal<br />
citizenship may be imperilled by policy that has a differential impact on Māori<br />
which may lead to societal disenfranchisement, such as through disproportionate<br />
imprisonment. A process that allows all criminal justice policy to be viewed<br />
through a Māori lens might be a useful attempt to strive towards protection of<br />
Article Three. Sir Professor Mason Durie argues that <strong>the</strong> social inclusion that<br />
accompanies equal citizenship requires “<strong>the</strong> right to develop as Māori people, to<br />
speak <strong>the</strong> Māori language, to learn from <strong>the</strong> Māori knowledge system <strong>and</strong> to live<br />
within Māori cultural values.” 11 Therefore for this obligation to be met any<br />
assessment of differential impact on Māori should account for <strong>the</strong> right of Māori<br />
to develop as Māori.<br />
Secondly, Article Two secures for Māori te tino rangatiratanga - <strong>the</strong> unqualified<br />
exercise of chieftainship, which Sir Professor Hugh Kawharu explains would<br />
have been understood at <strong>the</strong> time of <strong>the</strong> Treaty’s signing to be absolute control in<br />
accordance with Māori custom. 12 That authority for Māori may be supported by a<br />
condition that all criminal justice policy respect tikanga in its design <strong>and</strong><br />
implementation, <strong>and</strong> take into account its particular impact on Māori. This<br />
proposal, <strong>the</strong>refore, has a strong justification in statutory law as well as in <strong>the</strong><br />
terms of <strong>the</strong> Treaty of Waitangi.<br />
It would be important, of course, that this proposal not collapse into a perfunctory<br />
box-ticking exercise undertaken by Ministry officials. To avoid this, <strong>the</strong> proposal<br />
would have to be accepted wholeheartedly, <strong>and</strong> leadership from public service<br />
chief executives might be necessary to ensure that <strong>the</strong> values underlying <strong>the</strong><br />
policy were understood <strong>and</strong> underscored. For <strong>the</strong> impact of criminal justice<br />
11 Mason Durie, “Progress <strong>and</strong> platforms for Māori educational achievement” (Hui Taumata<br />
Matauranga Māori Education Summit, Turangi <strong>and</strong> Taupo, 23-25 February 2001).<br />
12 I. H. Kawharu, “Treaty of Waitangi - Kawharu Translation” (2011) Waitangi Tribunal - Te Rōpū<br />
Whakamana i te Tiriti o Waitangi:<br />
.<br />
37