Last week, an independent report revealed massive failings throughout New Zealand’s criminal justice system. The interim report from the Safe and Effective Justice Advisory Group (Te Uepū Hāpai i te Ora) – called The Vessel of Tears (He Waka Roimata) – discovered entrenched issues of racism and bias, victims feeling unheard and misunderstood, and an adversarial process that leads to punishment rather than rehabilitation. Jemima Huston spoke to AUT Professor Khylee Quince about the report and why transformative change is necessary.
Khylee Quince is a Professor of Law at AUT University. She is an expert in criminal justice law and reform.
This interview has been edited for clarity and length
Jemima Huston: The report released highlights multiple deep-rooted problems with New Zealand’s criminal justice system. One core issue is the overrepresentation and poor treatment of Māori in the system. What are your thoughts on this?
Khylee Quince: All of the things that the report say are absolutely true, but they are not news to us.
JH: I feel like this is something that comes up in the news all the time. Why is it important that another report is released saying these same things?
KQ: Well it’s important because it highlights the fact that nothing has really been done about it for thirty years. So there are a couple of seminal pieces of work that have highlighted the same issues in recent decades. Thirty years ago, Puao Te Atatu, which was the report of the Royal Commission of Inquiry into the Department of Social Welfare in 1988. In the same year, Moana Jackson, New Zealand’s foremost Māori legal thinker released his seminal piece of work Māori in the Criminal Justice System; the Roper Report was thirty years ago. All of these reports have come to the same conclusion, which is that our justice system has always responded poorly to Māori.
I think this particular report here, Waka Roimata by Te Uepū really consolidates this work and points out that over the past three decades we have done very little to close that gap. Because we have really only made, well, at best, incremental changes, but at worse, we’ve really made no change at all – in terms of our statistics of imprisonment, the overrepresentation of Māori as victims. So at every single waypoint or stage in the criminal justice system from crime occurring to responses to crime, Māori have been treated very poorly. And unsurprisingly then have had very, very poor experiences that have been reported back to the Te Uepū group over their two hundred and twenty hui they have had around the country.
JH: Clearly a report is a sort of tactic the government is using to deal with this issue, and you’ve said it’s creating incremental changes, but is another report going to make a huge difference, or is there something else that we need to be doing?
KQ: I do think it’s important to consolidate those opinions and experiences of people in the past three decades, and Moana Jackson is doing exactly the same thing with the impending release of his thirty-year update to his 1988 report. So it’s important that those reports at least tell us that the situation is still the same. I do think that the call so far – this is only an interim report from Te Uepū – it’s important in that they are using the language of transformative change. That’s a really important signal about the nature and extent of the change that is required. Transformative change means doing things completely differently. And they are calling for an overhaul of not just the criminal justice system. So they’re tasked at looking at criminal justice and in their report, importantly, they are pointing out that the underpinning causes of the crime reflect poorly upon all of our other services across the state sector: education, health, housing, responses to addiction. I mean, it’s not rocket science that most offenders come from marginalised communities, or are people whose harmful behaviour is underpinned by addiction, underpinned by unemployment. So this is really important because it’s asking for complete transformation of all of those systems in order to address crime. So closing prisons won’t make any difference. Closing prisons, in the same way that we closed mental institutions and youth justice institutions, twenty and thirty years ago, all that does is shift the problem to other aspects in the social sector. If you really want to do this properly, if you really want to make transformative change, then you’ve got to do all of those things. So in that sense it is really important.
JH: Can we talk a little about what transformative change would actually look like? What sort of things are we hoping to come out of transformative change?
KQ: So one of the things we need to remember is that when we talk about the criminal justice system, we are talking as if that is a single, monolithic beast. It’s not. It’s a large number of agencies; anywhere from the police, prosecutors, judges, lawyers, Corrections, prisons, probation, service providers. So you’re talking about dozens of agencies, different service providers, people who are all acting under different pieces of law and policy – they have different discretions – it’s not a single integrated system, and that’s really important. So the first step is to think about how each of those systems needs to know what the other part of the system is doing. So you need proper coordination across the sector. You also need then to change and transform each of those aspects of the system. So we’ve heard quite a lot in recent years about the Turning the Tide policy in respect of the police. We know for example, that the police have acted in ways that are particularly harmful and discriminatory to Māori. We’ve heard language like ‘unconscious bias’. That requires culture change in that particular tiny part of the sector. The police are the gatekeepers in responding to criminal offending…
Then you need to change the way in which courts respond. For example, the way in which the environment in the court is set up to respond to or accommodate victims of crime. Where do they get to sit? Is there room for their families? Can children be brought into courtrooms? Or are there services, people that will look after children in terms of crèche facilities? Are there going to be victims’ advocates who are there to prepare them appropriately, to communicate between victims and the crown prosecutor or police and other people involved in the system? So at every single stage there is required to be a really careful analysis of what it was that these people that Te Uepū spoke to were unsatisfied with or thought that could have been done better. Those people are the experts in terms of their own experiences. And that’s invaluable in terms of taking a really close look at each those different arms or branches of that system to better respond. Those are medium-term goals, I suppose. Some things are much bigger. Moving away from adversarial approaches – that’s a huge issue. In terms of moving away from dealing with certain types of offending perhaps, like sexual violence, and family violence, an adversarial system necessarily requires that there’s going to be a winner and a loser. It’s a contest. If you’re talking about family violence, you might often be talking about people who want to remain in a relationship with their perpetrator. If that’s the case, an adversarial approach is not really very helpful. It often re-victimises people who’ve been harmed. But also, how can you have a winner and loser if people want to remain in a relationship? You need an approach that’s based on restoration and reconciliation.
JH: And to support both people to be together, right?
KQ: Absolutely. So we’ve made some inroads in those changes. We have sexual violence pilot courts, we have family violence courts around the country. But we’re talking about more than moving beyond pilots and rolling out. The translation of Te Uepū is ‘safe and effective justice’. What’s effective for the people involved in particular types of offending?
JH: Justice Minister Andrew Little has said that he wants change to happen, and that the government needs to move on this. He also said that there is a clear willingness at the iwi and hapu level and throughout the Māori community, generally, saying we’re ready to step up and provide some of the solutions, to be part of the solution. What is your opinion on this statement? Is it only now that iwi groups and other groups in the Māori community want to make a difference to this disproportionate treatment of Māori in the criminal justice system, or not?
KQ: No, absolutely not. Iwi Māori have been willing to take responsibility and calls for by-Māori-for-Māori solutions have been around for decades. It’s really the responsibility of the Crown to actively protect the rights of iwi Māori to be engaged. That’s a really positive sign from Andrew Little. I think this is the report that he was waiting for. It certainly was the report that iwi Māori were waiting for. And if we look at other examples across the state sector again, in terms of more effective engagement and partnership with Māori, we’ve seen this with the reforms coming live at the beginning of next month, with Oranga Tamariki again, to try and better engage iwi Māori to look for solutions to problems and issues affecting Māori ahead of other citizens of New Zealand. So, no, Māori have been waiting for this for a long time. For the past thirty years, we’ve had an increase of Treaty of Waitangi jurisprudence, or the prominence of looking to partner with iwi Māori in respect of other aspects of law and policy and politics in New Zealand, but there’s always been criminal law exceptionalism, which is really the fact that criminal law is seen to be different because…we’re so heavily wedded to the idea of individual agency and individual offender responsibility. We are a really punitive society.
In New Zealand, all of the data shows that we imprison people more than most other countries in the OECD, and I don’t know why that is. But we need to take a really long hard look at ourselves and see that many of these causes are rooted in our history of systemic racism and colonial practices. It can’t be surprising that if you take people’s land, you suppress their culture, their language, their ways of doing things, that you put them in a position when they are more vulnerable than other citizens in this country. In all societies, criminologists will tell you that those are the people who cause harm to others. So we actually need to own up to that history, and attempt to respond to it. That’s going to require quite brave and courageous political decision making. Hopefully we have the sort of government at the moment that is willing to do it.
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