Taniwha in the Room: Eradicating Disparities for M?ori in Criminal Justice: Is the Legal System up for the Challenge?

AuthorInura Fernando
PositionBHSc/LLB (UOA), LLM in Human Rights Law (Second Class Hons, First Division), University of Auckland
I F*
is article will evaluate the e ectiveness of the New Zealand legal system in
eradicating disparities for Māori in criminal justice. It will survey the paradigms
and contextual factors that underlie the disparities for Māori in the justice system
and incorporate this into a critical analysis of the New Zealand legal system. It
will canvass arguments for and against legal system eectiveness, enquiring into
both direct and indirect mechanisms, b oth action and inaction. It will ultimately
deconstruct New Zealand ’s legal system so as to illustrate pathways to eradicate
inequities for Māori in the justice system.
Whāia te iti ka hurangi ki te tūohu koe me he maunga teitei
Seek the treasure you value most dearly; if you bow your head,
let it be to a lofty mountain
I. I
Between 20 and 22 Augu st 2018, the current Labour Coalition
Government started a conversation with key stakeholders about the future of
our criminal justice s ystem.1 e over-representation of Māori in the criminal
1 Te Uepū Hāpai i te Ora - e Safe and E ective Justice A dvisory Group “Sum mit Programme”
(20 August 2018) Safe and E ective Justice .
* BHSc/LLB (UOA), LL M in Human Ri ghts Law (Second Cla ss Hons, First Division),
University of Auck land. Barrister and S olicitor of the High Court of New Ze aland.
Acknowledgements: I would lik e to acknowledge t he unerring love and supp ort of my
parents, Mal a and Lal Ferna ndo. I want to especia lly thank K hylee Quince for her k ind
support and guid ance. I want to ack nowledge the adv ice and kind suppor t of Professor
Warren Brookbank s. I want to than k Associate Profe ssor Julia Tolmie for her support and
advice. I would li ke to recognise the eorts of s ta at the Ministry of Jus tice for responding
to my queries and infor mation requests. I want to dedic ate this research to t he late Associate
Professor Nin Tomas; I am indebted to her f or sparking a genui ne interest in creatin g equitable
outcomes for Māori wit hin Aotearoa’s legal system.
62 Canterbury La w Review [Vol 24, 2018]
justice system is not without its dead bodies. It is estimated that at any one
time at least 10,000 Māori children are likely to have a parent in prison.2 Sir
Peter Gluckman, Chief Science Advisor to the New Zeala nd Prime Minister,
noted that “[i]f Māori had the same proportion of their population in prison
as non-Māori, then the prison population would be 44 per cent smaller”.3
Evaluating the eectiveness of the New Zealand legal system in
eradicating disparities for Māori in the criminal justice s ystem is ostensibly
a mammoth task. Admittedly, this inquiry has cha llenges and limitations.
e main challenge is t he availability of the most recent data. Even though
there are current articles on this topic, they often cite older primary data
sets. is challenge is heightened by government departments which —
deliberately or otherwise — fail to conduct resea rch on Māori disparities. A
case in point is the Department of Corrections, who stated in response to my
Ocial Information Act request that it has not yet commissioned research
into the over-representation of Māori in the criminal justice system from the
year 2014 to the present day.4 us, research put forward by the Department
of Corrections is entirely dependent on data put out by the Department of
Statistics and the Ministry of Justice. Sir Peter Gluckman also la ments that,
compared to overseas jurisdictions, New Zea land has a lack of current research
on the issue of ethnic bias in the criminal justice system.5 e question of
whether this is self-serving obfuscation of information and data that mask
institutional failure is one worth pondering.
e lived experience of Māori is complex. is includes being stereotype d
and over-represented in negative socio-economic statistics. Complexity also
lies in how the debate about Māori criminal justice is f ramed. is article
seeks, not just to describe the disparities for Māori, but to also show how
the debate about Māori criminal justice creates a self-perpetuating cycle.
e constitutional debate and constitutional barga ining are skewed towards
a narrow, Pākehā-centric vision, one that disenfranchises Māori from the
promises of the Treaty, and one that often dilutes policy responses in fear of
a political backlash from Pākehā, particu larly from groups such as Hobson’s
Pledge, led by Don Brash. e vitriol created by such groups, which lament
so-called “special rig hts” for Māori, in eect becomes a barrier to ameliorating
the intergenerational eects of devastating colonial atrocities and injustice
against our indigenous people. e present legal system epitomises Cass
Sunstein’s notion of “ incompletely theoris ed agreements”.6 is means, due to
2 Waitangi Tribunal Tū Mai Te Rangi! Re port on the Crown and D isproportionate Reoend ing
Rates (Wai 2540, 2017) at x.
3 Peter Gluckman Using Eviden ce to Build a Better Justice S ystem: e Challenge of Risi ng Prison
Costs (Oce of the Prime Min ister’s Chief Science Advisor, March 2 018) at 19.
4 Department of Cor rections “Respon se to Ocial Infor mation Act 1982 Request by the
Author” (19 July 2018) C99781 (Obtained under O cial Information Act 1982 Request to
the Depart ment of Corrections).
5 Gluckman, above n 3, at 19.
6 Cass Sunstein “Incomplete ly eorized Agreements” (1995) 108(7) Harv L Re v 1733.

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