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

• Author: Inura Fernando
• Position: BHSc/LLB (UOA), LLM in Human Rights Law (Second Class Hons, First Division), University of Auckland
• Pages: 61-90

61

TANIWHA IN THE ROOM: ER ADICATING DISPARITIES

FOR MĀORI IN CR IMINAL JUSTICE - IS THE LEG AL

SYSTEM UP FOR THE CHALLENGE?

I F*

A

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.