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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Rehabilitation and Respect in the District Court: Mainstreaming Therapeutic Jurisprudence to Improve Māori Outcomes
Georgia Thompson
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago, Dunedin, New Zealand – Te Whare Wānanga o Ōtākou
October 2022
Acknowledgements
To my supervisor, Metiria Stanton Turei. Tēnā rawa atu koe. Your insight and enthusiasm have made this dissertation an invaluable experience. I have so appreciated how forthcoming you have been with your time and compliments. Thank you for the speedy feedback and for introducing me to this topic in the first place, for which I now hold a great passion.
Ngā mihi nui ki a kōrua Dr Bridgette Toy-Cronin and Ben Nevell. Your thoughtful and constructive guidance on my seminar and topic has made a big impact on this dissertation.
Thank you to my wonderful friends who have made my time in Dunedin so special. In particular, my flatmates of the Simpson House, 243 George and Sandcastle A. Thank you for all the memories, laughs and activities. An extra special thanks to my fellow honours girls Lili and Jessie who have kept me sane and smiling.
To Hotene, thank you for the last five years of putting up with my constant need for academic validation. I couldn’t have done this without your love and support.
To my whānau – thank you. Mum and Dad, I can’t express my appreciation for all you have done for me. To my grandparents whom I would not be here without in any sense. Finally, thank you to William for always buying two coffees at Dispensary.
Table of Contents
Introduction
Rehabilitation and respect are not what many would expect a convicted criminal to encounter in the criminal justice system. Public opinion that offenders are not facing tough enough consequences persists. In spite of this is the growing movement of specialist criminal courts which target specific underlying causes of offending through therapeutic jurisprudence.1 Specialist criminal courts play a pivotal part in Aotearoa New Zealand’s judicial landscape and criminal justice reform.2 In this dissertation, I consider whether mainstreaming these specialist criminal courts’ best practices into the District Court can address the disparities between Māori and Pākehā in the criminal justice system.
Intersecting the growing therapeutic jurisprudence movement is the position of Māori in the criminal justice system.3 The overrepresentation of Māori at every stage of this system has led to persistent calls for its reform. Often at the heart of these critiques is the justice system’s inability to recognise that offending is the manifestation of a complex matrix of adverse personal and systemic factors for many. These factors include addiction, family violence and economic strife and are disproportionately represented in Māori communities.4 Specialist courts target these roots and therefore serve a large Māori population. A solution may lie in therapeutic jurisprudence, a school of thought which appears to align with tikanga Māori. Despite the importance of specialist courts, their potential to alleviate the position of Māori remains largely unrealised.
In this dissertation, I explore the potential of mainstreaming the specialist courts’ best practices into the District Court to benefit Māori in the criminal justice system. I evaluate the effectiveness of mainstreaming through judicial policy. I argue that if properly implemented, a general mainstreaming judicial policy can improve the position of Māori. To ensure that Māori
1 Bruce Winick “Problem Solving Courts: Therapeutic Jurisprudence in Practice” in Richard Wiener and Eve Brank (eds) Problem Solving Courts: Social Science and Legal Perspectives (Springer, New York, 2013) 211; David B Wexler “Reflections on the Scope of Therapeutic Jurisprudence” (1995) 1 Psychology, Public Policy and Law 220.
2 Olivia Klinkum “Taking New Zealand’s Specialist Criminal Courts ‘To Scale’ for Better Criminal Justice Outcomes” [2019] NZCLR 1.
3 Moana Jackson The Māori and the Criminal Justice System, A New Perspective: He Whaipaanga Hou Part I
(Department of Justice, 1987).
4 Tracey McIntosh and Kim Workman “Māori and Prison” in Antje Deckert and Rick Sarre (eds) The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice (Springer Nature, Switzerland, 2017) 725.
interests are prioritised, I argue a supplementary legislative provision expressly allowing for the procedural incorporation of tikanga Māori into the District Court is necessary.
In part one, I provide an introduction to specialist criminal courts. This involves canvassing their theoretical underpinnings and how they interact with te ao Māori (the Māori world). In the second part, I explain why mainstreaming is necessary for Māori. The third part focuses on whether mainstreaming can improve Māori outcomes. This involves comparing the specialist courts’ theoretical basis and traditional Māori dispute resolution. I conclude that the two sets of beliefs are sufficiently similar that a mainstreaming initiative could facilitate change. I then look to the possible outcomes of mainstreaming. I utilise the goals of the recently implemented District Court mainstreaming policy Te Ao Mārama.5 In the fourth part, I evaluate the best method of mainstreaming. I conclude that a general judicial policy, supplemented by a legislative provision explicitly allowing for the incorporation of procedural tikanga Māori into the District Court, will be most effective. I draw upon existing legislative schemes which incorporate tikanga Māori procedurally to inform how the District Court provision should operate. In part five, I discuss factors that could obstruct my proposed strategy's success. I argue these are not fatal but can be used constructively to ensure the success of the initiative for Māori.
The focus of this dissertation is not to advocate for a mainstreaming initiative generally. This is unnecessary, given that mainstreaming is already underway in the District Court through Te Ao Mārama. Te Ao Mārama serves the entire population. My focus is on how to optimise a mainstreaming initiative for Māori. To do this, I aim to build upon the existing research on the intersection between te ao Māori and therapeutic jurisprudence. There is also a lack of research on how to practically undertake a mainstreaming initiative. I aim to provide a framework to incorporate therapeutic jurisprudence and procedural tikanga Māori into the District Court. Despite the recent heightened legal incorporation of tikanga Māori, there has been no suggestion of implementing a relevant legislative provision into the District Court Act 2016. I believe this is an oversight. The District Court is the coal face of Aotearoa’s justice system and has a crucial role to play in its reform for Māori.
5 Heemi Taumaunu, Chief Judge of the District Court “Calls for transformative change and the District Court response” (Norris Ward McKinnon Annual Lecture 2020, University of Waikato, 11 November 2020).
Part One: An Introduction to Specialist Criminal Courts and Mainstreaming
I Specialist Criminal Courts
I will first describe Aotearoa’s existing specialist criminal court landscape and its theoretical basis. I will then cover how specialist courts presently incorporate tikanga Māori and how Māori interact with these courts. This is necessary to understand what mainstreaming purports to integrate. I then consider three examples of specialist courts, the Alcohol and Other Drug Treatment courts, ngā Kooti Rangatahi and te Kooti Matariki. These examples demonstrate the potential to improve Māori outcomes.
A Therapeutic Jurisprudence and Specialist Criminal Courts
Specialist criminal courts exist within the umbrella of the District Court6 to serve subgroups of offenders with common identifiable social/mental issues such as addiction and homelessness.7 They directly respond to the existing system’s inability to prevent the “revolving door” of individuals who pass through it.8 The specialist courts, also known as “problem-solving courts”9 or courts that utilise “solution-focused judging”,10 practically deploy the theoretical principles of therapeutic jurisprudence. Therapeutic jurisprudence was co-founded in 1987 by David Wexler and Bruce Winick11 who define it as “the study of the law as a therapeutic agent”.12 The theory recognises that legal actors13 can create positive (therapeutic) or damaging (anti-therapeutic) mental outcomes in court participants.14 Informed by principles of
6 Ministry of Justice "Specialist courts" (8 December 2021) Ministry of Justice <justice.govt.nz>.
7 Bruce J Winick “Therapeutic Jurisprudence and Problem Solving Courts” (2003) 30 Fordham Urb LJ 1055 at 1055.
8 Klinkum, above n 2, at 1.
9 Winick, above n 1, at 341. The traditional conception of the practical implementation of therapeutic jurisprudence.
10 Taumaunu, above n 5, at 23. This phrasing transforms the judge’s role in proceedings from solving the problem (as in “problem-solving courts”) to encouraging the offender to find a solution.
11 David Wexler is an academic of the University of Puerto Rico and Bruce Winick is of the University of Miami. For more, see David C Yamada “Therapeutic Jurisprudence: Foundations, Expansion, and Assessment” (2020) 75 U Miami L Rev 660 at 663.
12 Wexler, above n 1, at 220.
13 Including judges, lawyers, and court staff.
14 “Court participants” extend beyond the offender to the victim, their families, and all those who are indirectly affected by the Court’s operations. For greater explanation of these mental outcomes, see Winick, above n 1; Wexler, above n 1.
psychology and criminology,15 therapeutic jurisprudence attempts to “humanise” the law and garner greater respect for it. This is because “anti-therapeutic effects impact not only on individuals, but ‘may well inhibit the achievement of justice system outcomes such as the prevention of crime ... and respect for the law’”.16
Rosemary Hunter, Sharyn Roach Anleu and Kathy Mack contend that specialist courts practically implement therapeutic jurisprudence through:17
(1) the interactions between the judge and court participant; and
(2) the adoption of an interdisciplinary approach to problem-solving.
While the judge is traditionally construed as a neutral arbiter,18 in a specialist court, the judge assumes a more active role in the offender’s case. The interactions between judge and offender centre around “warmth, openness, emotional attachment, respect, active listening, a positive focus, non-coercion, non-paternalism, clarity and plain language”.19 Specialist courts place greater emphasis upon respect for the offender, their background and the circumstances that contributed to their offending. The decision-making process is more transparent. These are all tenets of procedural fairness, which is integral to the specialist courts.20 These techniques foster greater respect for the justice system and encourage greater compliance with the law and sentencing.21
The specialist courts’ interdisciplinary approach encourages accountability for the offender’s actions and healing.22 External agencies such as rehabilitative and counselling services
15 Winick, above n 7, at 1064.
16 Klinkum, above n 2, at 3, citing Michael King, Arie Freiberg and Becky Batagol Non-Adversarial Justice
(Federation Press, Sydney, 2014) at 25.
17 Rosemary Hunter, Sharyn Roach Anleu and Kathy Mack “Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches” (2016) 12(3) Int JLC 337 at 345.
18 At 339.
19 At 339.
20 Klinkum, above n 2, at 9; Winick, above n 7, at 1064.
21 Winick, above n 7, at 1089. For further explanation, see Part Three, Subheading II(B) Building Confidence in the Courts and Rule of Law at 34.
22 Warren Brookbanks "Non-adversarial justice: re-imagining law as a healing profession" [2016] NZLJ 337 at
337.
facilitate this by enabling participants to tackle the roots of their offending practically.23 Judges typically prescribe these services at sentencing.24
There are several specialist criminal courts in Aotearoa. These include the Alcohol and Other Drug Treatment Court (AODTC), the New Beginnings Court/Te Kooti o Timitanga Hou, the Special Circumstances Court, the Matariki Court/Te Kooti o Matariki, the Family Violence and Sexual Violence Pilot Court and Ngā Kooti Rangatahi/the Rangatahi Courts.25 Each specialist court employs practices and services specific to the problem it addresses.26 Following the offender’s guilty plea submission, the District Court judge may invite them to access these courts.27
B The Present Interaction Between Specialist Courts and Tikanga Māori
There are two ways that specialist courts can help Māori. The first is by incorporating specific tikanga Māori which aid in creating a culturally appropriate system. The second is through “wrap-around” services that are not specifically for Māori but serve the disproportionate population of Māori in the system.
Some specialist courts explicitly integrate tikanga. Kawa (ceremonial protocol) such as karakia (prayer), mihi whakatau (official welcome) and pepeha (tribal saying) are incorporated. Judges develop connections with court participants for the purpose of whakawhanaungatanga (establishing relationships) and physically sit on the same level as parties to the proceedings.28 Te reo Māori is also spoken more often than in traditional courts.29 For example:30
23 Winick, above n 1, at 1061.
24 See Klinkum, above n 2, at n 125 Klinkum suggests “Sections 50–51, 54G and 80D. Special conditions may be imposed if the court is satisfied there is a significant risk of further offending by the offender, standard conditions alone would not adequately reduce that risk, and the offender requires a programme to reduce the likelihood of further offending through the rehabilitation and reintegration of the offender”.
25 Klinkum, above n 2, at 4 – 8.
26 At 4 – 8.
27 At 4 – 8.
28 Taumaunu, above n 5, at 32.
29 Klinkum, above n 2, at 4 – 8.
30 See Klinkum, above n 2, at 4 – 8 for a comprehensive description of all New Zealand specialist courts.
Other specialist courts serve Māori by delivering “wrap-around” services that address various mental illnesses32 and adverse life circumstances to which Māori are disproportionately exposed. These services are valuable to Māori given their overrepresentation in the criminal justice system. For example:33
31 Through use of section 27 of the Sentencing Act 2002, as described by Klinkum, above n 2, at 6.
32 Joanne Baxter and others “Ethnic comparisons of the 12 month prevalence of mental disorders and treatment contact in Te Rau Hinengaro: The New Zealand Mental Health Survey” (2006) 40 Australian and New Zealand Journal of Psychiatry 905 at 905. There is a recognised link between mental illness and criminality: David J Vinkers and others “The relationship between mental disorders and different types of crime” (2011) 21(5) Criminal Behaviour and Mental Health 307 at 307.
33 See Klinkum, above n 2, at 4 – 8 for a comprehensive description of all New Zealand specialist courts.
34 Litmus Qualitative components of the outcomes evaluation of the Alcohol and other Drug Treatment Court
(Ministry of Health, Final Report, 2019) at 10.
35 Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2019) at 18.
36 Te Puni Kōkiri Understanding Family Violence: Māori in New Zealand (Te Puni Kōkori, Infographic, 2017). It is also important to note that these statistics have been decreasing.
37 Taumaunu, above n 5, at 19.
38 Keri Lawson-Te Aho and others “A principles framework for taking action on Māori/Indigenous Homeless in Aotearoa/New Zealand” (2019) 8 SSM - Population Health 1 at 1.
39 Gregg D Caruso Public Health and Safety: The Social Determinants of Health and Criminal Behaviour
(ResearchersLinksBooks, United Kingdom, 2017) at 6.
40 Alex Woodley A Report on the Progress of Te Kooti o Timatanga Hou - The Court of New Beginnings
(Auckland Homeless Steering Group, 25 September 2012) at 11.
The AODTC has tikanga Māori at the heart of its operations and there is evidence that the court produces positive outcomes for participants. Through providing rehabilitative addiction services, the AOTDC aims to:41
...hold offenders accountable for their offending but provide an alternative to imprisonment for those whose offending is driven by addiction to alcohol or other drugs, and who are likely to otherwise continue to cycle untreated through the criminal justice system.
The AODTC incorporates tikanga in a variety of innovative ways. One innovation is the employment of a Pou Oranga (healing post) as a full-time Māori cultural advisor in the court. The Pou Oranga is retained and trained by the alcohol and addiction service Odyssey and funded by the Ministry of Health.42 They ensure tikanga incorporation, have extensive knowledge of te reo and addiction recovery and engage with iwi and whānau (family).43 Another innovation is that the physical layout of the courtroom is modelled upon the Orakei marae and related to the three stages of healing.44 Furthermore, every hearing includes kawa to acknowledge offender milestones.45 The AODTC may accept Pākehā46 , but there is a significant focus on tikanga for Māori offenders.
The AODTC has yielded positive short-term quantitative outcomes for participants.47 A 2019 evaluation48 of the AODTC found that the court reduced reoffending and reincarceration.49
41 Katherin Doolin and Fleur Te Aho "The Alcohol and Other Drug Treatment Courts - Te Whare Whakapiki Wairua - in Aotearoa" [2018] NZLJ 334 at 334.
42 Katey Thom and Stella Black Ngā whenu raranga/Weaving strands: 3. The roles of Te Whare Whakapiki Wairua/The Alcohol and Other Drug Treatment Court team (University of Auckland, 2017).
43 Ministry of Justice Alcohol and Other Drug Treatment Court Outcomes Evaluation 2018-19 (Ministry of Justice, Summary Evaluation Report, June 2019) at 10.
44 The three stages are te wairua mārie (serenity), manawanui (courage) and māramatanga (wisdom) as discussed by Katey Thom and Stella Black "Nga whenu raranga / weaving strands in the Alcohol and Other Drug Treatment Court of Aotearoa / New Zealand" (2018) 25 JLM 727 at 737.
45 Ministry of Justice, above n 43, at 13.
46 Ministry of Justice “Alcohol and Other Drug Treatment Court” Ministry of Justice <justice.govt.nz>.
47 Participants who “graduate” from the court’s rehabilitative programme.
48 Ministry of Justice, above n 43.
49 At 22.
Offenders were 23 per cent less likely to reoffend within two years of graduating from the programme.50 The motivation imbued by the court and continuing impact of constraining bail and sentencing conditions may explain these results.51 The AODTC is less effective in the long term. The report cites the destructive cyclical nature of addiction and the expiry of bail and sentencing constraints to explain the waning of longer-term positive outcomes.52 With the continued development of these services, the positive short-term results should extend to the longer term in the future.
However, the AODTC’s positive results pertain to all court participants, not just Māori. There is no quantitative data or analysis on the link between the incorporation of tikanga and Māori reoffending yet.53 This does not mean the connection does not exist but that nobody has specifically reviewed it. Additional research should be undertaken here. However, if some incidence of these positive outcomes were to fall on Māori, I believe mainstreaming the AODTC’s processes would be worthwhile.
The 2019 report also recorded positive qualitative outcomes for AODTC graduates.54 Graduates experienced improved health and wellbeing with fewer and less serious addiction relapses.55 They also developed greater trust in the justice system and assumed more responsibility for their actions.56 Repairing and maintaining whānau connections was vital for many participants.57 The kaupapa Māori (purpose) and wairua (spirituality) focus of the AODTC allowed Māori offenders to reconnect with their taha Māori (Māori identity). The incorporation of tikanga enabled offenders to reconnect with their whenua (land) and whakapapa (genealogy).58 These factors increased mana in participants.59 Zoe Stowers also evaluated the AODTC’s ability to improve outcomes for Māori whānau.60 Stowers concluded that the Court’s processes facilitate the strengthening of whanaungatanga (kinship), mana
50 At 22.
51 Ministry of Justice Alcohol and Other Drug Treatment Court quantitative outcomes 2018-19 (Ministry of Justice, Final Report, June 2019) at 41.
52 Ministry of Justice, above n 43, at 22.
53 Ministry of Justice, above n 51, at 17.
54 Litmus, above n 34, at 27 – 50.
55 Described at 29 - 30. The four taha (parts, sections) of the AODTC are: taha hinengaro (mind), taha whānau (family), taha tinana (body) and cultural capital/wairua.
56 At 30.
57 At 32.
58 At 39.
59 At 39.
60 Zoe Stowers “Can Te Whare Whakapiki Wairua (The Alcohol and Other Drug Treatment Court) Lift our Suffering Whānau?” (2021) 8 Te Tai Haruru: Journal of Māori and Indigenous Issues I.
tangata (mana of the people) and manaakitanga (kindness).61 These outcomes can be traced to the procedural incorporation of tikanga rather than any specific service and so represent the potential of incorporating procedural tikanga. However, services also played a significant role; rehabilitative treatment reduced the burden on whānau of their relative’s addiction and remaining out of prison strengthened relationships.62
Mainstreaming procedural and relational tikanga would be the more straightforward part of mainstreaming the AODTC’s processes in comparison to costly rehabilitative services. Both elements are clearly needed to enable mental and physical outcomes for participants. However, these outcomes demonstrate the potential of incorporating tikanga into the mainstream for Māori.
Te Kooti Matariki63 and Ngā Kooti Rangatahi also operate through a heightened focus on offenders’ backgrounds and the use of tikanga. The key difference between the two is that Ngā Kooti Rangatahi operate on marae, whereas Te Kooti Matariki operate out of the standard District Court. These courts’ operations demonstrate the effectiveness of incorporating tikanga Māori procedurally.
Valmaine Toki, a University of Waikato professor of law,64 assessed Ngā Kooti Rangatahi and Te Kooti Matariki through a te ao Māori lens.65 She found that judges employed whanaungatanga, utu (reciprocity) and aroha (compassion, love) in both courts.66 These principles were not strictly legally applied but inherent to judicial interactions, akin to Western notions of natural law.67 Judges exhibited whanaungatanga through pre-existing kinship
61 At xvi.
62 Litmus, above n 34, at 32.
63 See above at Part One, Subheading I(B) The Present Interaction Between Specialist Courts and Tikanga Māori for a brief description of Te Kooti Matariki. It only operates in Kaikohe, Northland, see Taumaunu, above n 5, at 18.
64 The University of Waikato “Professor Valmaine Toki” <waikato.ac.nz>.
65 Valmaine Toki "Lessons from the Navajo Tribal Courts – Tikanga Māori as Common Law?" (2018) 28 NZULR 197.
66 At 200. Toki drew these conclusions from a report on a series of interviews conducted with Te Kooti Matariki and Rangatahi judges and non-participants. See “Te Kooti Rangatahi and Te Kooti Matariki – How the use of tikanga as common law reduced recidivism rates” (2018) unpublished.
67 At 202.
connections with the offender’s whānau.68 Relationships between young offenders and their grandparents in family group conferences fostered aroha.69 Toki asserted that the use of these principles contributed to the courts’ success and resulting reduced recidivism.70
The outcomes of these three courts demonstrate the potential specialist courts hold for Māori. They provide a compelling case for mainstreaming their best practices and tikanga focus into every District Court. Specialist courts are designed to serve one purpose as effectively as possible. Therefore, it is impractical71 to assume that every District Court can exactly replicate the processes of the AODTC, te Kooti Matariki and ngā Kooti Rangatahi. These outcomes are, therefore, likely to be the best case and watered down in the mainstream. Even so, increasing the prevalence of any of the benefits discussed is better than the status quo.
II What would mainstreaming look like in Aotearoa?
Mainstreaming involves incorporating specialist courts’ best practices into every standard court. This would involve integrating the specialist court best practices into the 58 District Courts in Aotearoa.72 These best practices would be introduced into all District Court processes, from pre-hearings to sentencing. Mainstreaming should start with the District Court as the specialist courts already operate within its ambit. Furthermore, lower-level courts provide the greatest opportunity for face-to-face judge-offender engagement.73 The cycle of reoffending many are trapped in results in the same individuals frequently reappearing in the District Court and amassing a great deal of time there.74 Given Māori overrepresentation, 75 mainstreaming into the District Court would enable the greatest exposure for Māori to specialist court procedures and opportunity for change.
68 At 202.
69 At 202.
70 At 198 and 210.
71 From a resource perspective. For further discussion, see below at Part Five, Subheading I Insufficient Resources at 56.
72 The District Court of New Zealand "Home" <districtcourts.govt.nz>.
73 Relative to the appellate courts. For more, see Hunter, Anleu and Mack, above n 17, at 339.
74 Klinkum, above n 8.
75 For full discussion, see below at Part Two, Subheading I Māori in the Criminal Justice System at 18.
Mainstreaming could encompass a spectrum of possible practices. At one end of the scale, Olivia Klinkum, a Harvard Master of Laws candidate76 and the Chief Judge, pragmatically argue77 that relational aspects of therapeutic jurisprudence should be mainstreamed rather than the costly support services. They claim this would not require any additional resources.78 The other extreme of the spectrum is the resource-heavy translation of every specialist court practice into every District Court. I contend that there is a middle ground. The relational aspects of specialist courts are undoubtedly crucial to shifting the mindsets of court participants, including Māori.79 However, there are social and mental issues disproportionately experienced by Māori which cannot be alleviated through conversation alone and necessitate appropriate services. It seems unlikely that the results of the specialist courts could be replicated in the mainstream without the wrap-around services. Mainstreaming cannot exclude these vital services. This middle ground is what I define as “mainstreaming” for the purposes of this dissertation. It is important to note that mainstreaming would look different in every court. The judge’s handling of a case would depend on the geographic location of the court and the characteristics of the offender.
I will briefly outline the Chief Judge’s approach to mainstreaming in the recently implemented judicial policy, Te Ao Mārama.
A Te Ao Mārama – A Judicial Mainstreaming Policy
Judicial policy provides one option for mainstreaming specialist court processes. Judicial policies are implemented by the Ministry of Justice to “reduce crime, keep people safe and modernise the justice system”.80 A mainstreaming judicial policy is already underway in Aotearoa. District Court Chief Judge Heemi Taumaunu unveiled the Te Ao Mārama model in 2020.81 Te Ao Mārama represents an attempt at “enhancing justice for all” through “restoration,
76 Harvard University “Olivia Klinkum” (2021) The Frank Knox Memorial Fellowships
<frankknox.harvard.edu>.
77 Taumaunu, above n 5, at 30 and Klinkum, above n 2, at 17.
78 For further discussion on resources as a limitation to the success of a mainstreaming initiative, see Part Five, Subheading I Insufficient Resources at 56.
79 I explore this further at Part Three, Subheading II(B) Building Confidence in the Courts and Rule of Law at 34.
80 Ministry of Justice “Key Initiatives” Ministry of Justice <justice.govt.nz>.
81 Te Ao Mārama translates to “the enlightened world”. The Chief Judge presented this policy in the 2020 Norris Ward McKinnon Memorial Lecture. See Taumaunu, above n 5.
rehabilitation and healing”.82 The proposal seeks to mainstream the specialist criminal courts’ best practices.83 At the time of writing, the policy is being trialled in the Hamilton, Gisborne and Kaitāia District Courts.84 Despite existing for two years, there has been no reviews or guidance from the judiciary on the progress of the policy.
Te Ao Mārama aims to: 85
(a) strengthen access to justice;
(b) improve outcomes for all affected by the District Court’s operations;
(c) build confidence in the courts and strengthen the rule of law; and
(d) improve community safety.
The policy is a direct response to repeated calls for criminal justice reform.86 It seems to represent a modernisation of the District Court, an attitudinal shift to a more culturally aware, inclusive environment for all New Zealanders. While the policy serves the entire population, improving diversity and inclusivity necessitates focusing on those underrepresented and excluded. In Aotearoa, this is Māori and other ethnic minorities. The Chief Judge recognised the importance and necessity of improving the position of Māori, owing to their disproportionate representation.87 However, advancing Māori interests is merely one subset of the policy, not its overall goal.
The best practices being mainstreamed include the use of plain language, increased information available on an offender’s background, active and involved judging, reduced formalities, community involvement and greater consistency of personnel.88 Notably, this list does not
82 Ministry of Justice “About the Te Ao Mārama – Enhancing Justice for All initiative” The District Court of New Zealand <districtcourts.govt.nz>.
83 Taumaunu, above n 5, at 23.
84 Jacinta Syme “Kaitāia District Court next to adopt the ‘Te Ao Mārama – Enlightened Justice for All’ initiative” (13 July 2022) The District Court of New Zealand <districtcourts.govt.nz>.
85 Taumaunu, above n 5, at 36.
86 Taumaunu, above n 5, at 3 cites the following reports as calls to change the criminal justice system: Jackson, above n 3; John Rangihau The Report of the Ministerial Advisory Committee on a Māori perspective for the Department of Social Welfare Puao-Te-Ata-Tu (Department of Social Welfare, Wellington, September 1988); and Clinton Roper Prison Review: Te Ara Hou = the New Way / Ministerial Committee of Inquiry into Prisons System (Crown, Wellington, 1989).
87 Chief Victims Advisor Te Tangi o te Manawanui (Te Uepū Hāpai I te Ora - The Safe and Effective Justice Advisory Group, December 2019) at 2.
88 Taumaunu, above n 5, at 24.
include the use of external rehabilitation providers. As expressed,89 this seems like an oversight. There will also be increased use of tikanga and “other [non-Māori] cultural processes”.90 This includes te reo Māori and kawa such as karakia, mihi whakatau and pepeha. Incorporating these practices would align the court more with the values of te ao Māori.91
Te Ao Mārama is an ambitious judicial policy largely driven by the success of the specialist courts.92 It is certainly promising that the Chief Judge has embraced mainstreaming. The challenge is now to refine it so it genuinely benefits Māori.
89 Discussed above at Part One, Heading II What would mainstreaming look like in Aotearoa? at 14.
90 Ministry of Justice, above n 82.
91 For a more in-depth explanation, see Part Three, Subheading I The Theoretical Alignment of Therapeutic Jurisprudence and Tikanga Māori at 28.
92 As discussed above at Part One, Subheading I Specialist Criminal Courts at 7.
Part Two: Why Mainstream?
I Māori in the Criminal Justice System
A The Present Situation for Māori: the Harrowing Statistics and their Origins
Mainstreaming is a direct response to the failings of Aotearoa’s justice system. Appalling statistics which have persisted for decades demonstrate the disparities between Pākehā and Māori. The disproportionate imprisonment rate is evidenced in Māori comprising 53.4 per cent of the prison population95 and only 17.1 per cent of Aotearoa’s population.96 Within two years of release, 41.3 per cent of Māori are reimprisoned, and 54.7 per cent within five years. This is in comparison to the equivalent lower figures of 30.5 per cent and 43.6 per cent for Pākehā.97
The root causes of these statistics are complex. Moana Jackson’s 1988 “He Whaipaanga Hou” report98 remains one of the subject's most relevant and authoritative sources. Jackson states that “the justice system does not exist in isolation from the society it serves [and] any study of its processes must include consideration of [that society]”.99 Jackson asserts that “the Māori offender is an entity quite distinct from the [Pākehā] offender”.100 He rejected the research of others that analysed Māori criminality through direct comparison to Pākehā. This prior body of research attributed the disproportionate criminal representation to socio-economic factors, failing to look at the systems that facilitate those socio-economic factors and the cultural forces
93 Jackson, above n 3, at 35.
94 Discussed by Jackson, above n 3, in the concluding section “Te Whanaga Tuatoru, Nga Tahu Hou: The New Threads” at 39 – 41.
95 Department of Corrections "Prison facts and statistics - March 2022" (March 2022) Department of Corrections <corrections.govt.nz>.
96 Stats NZ "Māori population estimates: At 30 June 2021" (16 November 2021) Stats NZ <stats.govt.nz>. 97 Waitangi Tribunal Tū Mai Te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 11.
98 Jackson, above n 3.
99 At 10.
100 At 39.
that impede upon Māori offenders.101 Instead, Jackson concluded the disparities stem from the “historic and contemporary pressures which challenge the value of Māori ideals” which present through “overt bigotry, institutional racism, or ignorant insensitivity”.102 The criminal justice system exacerbates these pressures.
The colonial settler government and English legal system were imposed upon Māori following the signing of te Tiriti o Waitangi in 1840. Despite tikanga being the first law of Aotearoa,103 the courts have held that any parallel tikanga criminal justice system was extinguished by the Crimes Act 1961.104 Moral functionalism aids in explaining how this imposed English criminal justice system contributed to the alienation of Māori from the system and the present disparities. Moral functionalists believe the criminal justice system is the “product of value consensus” which “[reconciles] differing individual or group interests in favour of ‘the common good’”.105 Since New Zealand law has largely developed to the exclusion of tikanga Māori, it reflects Western values of permissible and criminal behaviour.106 These definitions do not always align with what is tika (right) and hara (harm)107 in tikanga Māori.108
The effects of this fundamental value malignment have been exacerbated by the policies which catalysed the post-war urban shift of Māori109 and the inability of Pākehā society to cater to Māori kinship structures.110 Migrating from their iwi’s whenua (land) severed many Māori from their whakapapa structured lifestyles.111 Despite this, many Māori still live in accordance with tikanga and Urban Māori Authorities have somewhat subsumed the role of iwi for urban
101 At 16.
102 At 40.
103 See generally Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1.
104 See Christian Whata "Lecture Series Celebrating the 25th Anniversary of Te Piringa - Faculty of Law" [2018] WkoLawRw 3; (2018) 26 Wai L Rev 24 and his discussion of R v Mason [2012] NZHC 1361, R v Iti [2007] NZCA 119, Mika v R [2013] NZCA 648.
105 Edmund F McGarrel and Thomas C Castellano "An Integrative Conflict Model of the Criminal Law Formation Process" (1991) 28(2) J Res Crime Delinq 174 at 175.
106 Discussed in Moana Jackson The Māori and the Criminal Justice System, A New Perspective: He Whaiappanga Hou, Part II (Ministry of Justice, 1988) at 35.
107 Sometimes equated to Western notions of crime. A hara is typically regarded as an infringement against tapu or an offence.
108 See generally Part Three, Heading I The Theoretical Alignment of Therapeutic Jurisprudence and Tikanga Māori at 28.
109 Manuhuia Barcham “The challenge of urban Māori: reconciling conceptions of indigeneity and social change” (1998) 39(3) Asia Pac Viewp 303 at 304.
110 Jackson, above n 3, at 34.
111 Barcham, above n 109, at 304.
Māori.112 However, the legal system continues to perpetuate the negative implications of colonisation.113 These implications include lower education levels, family instability, unemployment and drug and alcohol abuse – factors commonly cited to explain the disproportionate reoffending rates.114 As the District Court is the “coal face” of the justice system for many, it is a logical starting point for reform for Māori.
B The Impacts of these Statistics
These statistics have expansive socio-economic consequences for the imprisoned individual, their whānau and the community.115 Mass incarceration of the scale identified can create “cumulative and intergenerational disadvantage”.116 That disadvantage arises from depriving the incarcerated individual of liberty and the ability to create wealth117 and foster whanaungantanga.118 Whanaungatanga reflects the collective interest and is a central tenet of te ao Māori. Thus, with an individual imprisoned:119
There are collateral effects and consequences which spread from the individual outwards to whānau and community. There is also evidence to suggest that once set in motion, these reverberations can persist over time, increase in resonance, and then [feedback] upon themselves, generating long-lasting and potentially intergenerational effects.
The Waitangi Tribunal report “Tū Mai Te Rangi”120 highlighted the impact on inmates’ tamariki (children). Approximately half of the 20,000 children in Aotearoa with imprisoned parents are Māori.121 These children are more likely to offend and become incarcerated themselves later in life.122 These disparaging statistics and outcomes suggest that the status quo
112 At 304 and 311.
113 Jackson, above n 3, at 11.
114 McIntosh and Workman, above n 4, at 727.
115 At 727.
116 At 727.
117 Ashley Forsyth “The Effects of Mass Incarceration on Individuals and Communities” (2019) 4 University of Washington Bothell The CROW 21 at 23.
118 Stowers, above n 60, at vii.
119 At 733.
120 Waitangi Tribunal, above n 97.
121 Evidence heard in the Waitangi Tribunal suggested this, described at 14.
122 At 14.
is ineffectual and incapable of improving the position of Māori in Aotearoa’s criminal justice system. Mainstreaming provides a potential solution.
II The Crown’s Obligations under te Tiriti o Waitangi/the Treaty of Waitangi
The Crown has obligations under the Treaty of Waitangi to reduce the disparities between Pākehā and Māori. Mainstreaming could assist in discharging this duty. Failure to act, or to thoroughly consider the Māori interests at stake, could expose the Crown to a Waitangi Tribunal inquiry.
A “Tū Mai Te Rangi!” Waitangi Tribunal Report
In “Tū Mai Te Rangi”, the Waitangi Tribunal examined123 the Department of Correction’s duties under the Treaty to reduce Māori recidivism.124 The Tribunal found that too little had changed since Jackson’s 1988 report “He Whaipaanga Hou”125 and that the Crown has a duty to specifically and effectively prioritise and reduce Māori reoffending rates.126 The Crown accepted this duty, with the caveat of only taking “reasonable” actions.127 The disproportionate state of reoffending engaged the Treaty principles of “active protection”, “equity” and “partnership” under the Tribunal’s analysis.128
The Tribunal found the Department of Correction’s goal to reduce reoffending by 25 per cent was inadequate for Māori. It failed to specifically address Māori reoffending and resulted in disproportionately better outcomes for Pākehā than Māori.129 This ineffectual goal breached the Treaty principle of “equity”.130 The Department’s failure to implement a long-term plan for reducing these disparities also constituted a breach of the principle of “active protection”.131 The Crown’s obligations to protect Māori interests were especially heightened given the value
123 In accordance with its statutory function under the Treaty of Waitangi Act 1975, s 6.
124 Waitangi Tribunal, above n 31.
125 Jackson, above n 3, at 79.
126 At 81.
127 At 17.
128 At 79 – 86.
129 At 63 – 66.
130 The Treaty principle of equity is derived from Article III of the Treaty, described at 61.
131 At 83.
placed on the taonga of te ira tangata (the essence of life).132 The Tribunal emphasised that “the most precious taonga is the taonga of the people that are imprisoned and their children and their families”.133
At the time of the report, the Tribunal determined that the good faith efforts134 of the Department complied with the Treaty principle of “partnership”.135 However, it determined that the Department could be in breach if sufficient “targets, mechanisms and timeframes” were not established to realise the promised “real and lasting partnerships”.136 The Tribunal noted it could not “foresee a satisfactory resolution to the situation without Māori being at the table to design and implement both strategic level documents and Māori-centred programmes and initiatives”.137
“Tū Mai Te Rangi!” also looked to international non-government organisation criticism of the Crown’s efforts in reducing disparities. Numerous United Nations inquiries into Aotearoa’s justice system138 have recommended targeted action towards the system’s biases which contribute to the disproportionate representation of Māori.139 These commentaries reinforce the need for criminal law reform.
Finally, the Tribunal recommended that the Crown: 140
(a) undertake a Royal Commission of Inquiry;
(b) design and implement a strategy with the Māori Advisory Board;
(c) include measurable targets and a dedicated budget for the policy; and
(d) provide greater Treaty awareness training to corrections staff.
132 This taonga is badly impacted by the reoffending rates as imprisoned Māori are unable to function in society and maintain their Māoritanga. Described at 36.
133 At 32.
134 Such as the Crown’s steps in establishing of a Māori Advisory Board and assertions of its “bold” approach to partnership, described at 86.
135 At 86.
136 At 86.
137 At 86.
138 For a summary of these see Waitangi Tribunal, above n 97, at 13; United Nations Human Rights Council Report of the Working Group on Arbitrary Detention, Addendum: Mission to New Zealand A/HRC/30/36/Add.2 (6 July 2015); United Nations Committee on the Elimination of Racial Discrimination Concluding Observations on the Eighteenth to the Twentieth Periodic Reports of New Zealand, Adopted by the Committee at its Eighty- Second Session (11 February – 1 March 2013) CERD/C/NZL/CO/18–20 (17 April 2013).
139At 13.
140 At 86 – 90.
B The Implications of “Tū Mai te Rangi!” for Mainstreaming
Mainstreaming can aid in discharging the Ministry of Justice’s (the Ministry’s) duty under the Treaty. I suggest that the Department of Correction’s obligation to reduce Māori reoffending141 extends to the Ministry. Treaty obligations attach to “the Crown”,142 typically defined as the executive branch of government.143 This definition would include the Ministry as a Crown agency. This means that a mainstreaming policy created by the Ministry of Justice would be subject to the Crown’s Treaty obligations, including the obligation to reduce Māori reoffending.
Whether the judiciary owes duties under the Treaty is uncertain. As the judiciary is a separate branch of government from the executive, a wider definition of “the Crown” would be necessary to subject the judiciary to Treaty obligations. In the “Te Roroa Report”,144 the Tribunal determined that the Native Land Court was a Crown agent as its powers are statutorily conferred.145 This logic could subject the judiciary to the Treaty as all courts are creatures of statute.146 The notion that all three branches fall within the government’s kāwanatanga sphere of governance (which arose from the Treaty) supports this wider definition.147 These arguments suggest the judiciary should owe Treaty duties. Conversely, there are constitutional arguments against subjecting the judiciary to the Treaty. Judicial independence is a bedrock principle of Aotearoa’s constitutional arrangements.148 Subjecting judicial actors to the same obligations as the Ministry may undermine this independence. The public may lose faith in the judiciary’s ability to neutrally facilitate justice if they owe duties to higher political causes such as reducing recidivism.149 Despite these arguments, I think it is reasonable to subject the judiciary to the
141 The Crown accepted this duty in “Tū Mai Te Rangi”. See above n 127.
142 Treaty of Waitangi Act 1975, s 6(1).
143 Geoff Melvin “Chapter 2: The jurisdiction of the Waitangi Tribunal” in Janine Hayward and Nicola R Wheen (eds) The Waitangi Tribunal (Bridget Williams Books, Wellington, 2004) 15 at 21.
144 Waitangi Tribunal The Te Roroa Report (WAI 38, 1991).
145 At 31.
146 Courts are created and governed by the following legislation: Supreme Court Act 2003, Supreme Court Rules 2004, High Court Rules 2016, Senior Courts Act 2016, Court of Appeal (Civil) Rules 2005, Court of Appeal (Criminal) Rules 2001, District Court Act 2016, District Court Rules 2014.
147 He Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike Mai Aotearoa—The Independent Working Group on Constitutional Transformation (Matike Mai Aotearoa, January 2016) at 9 visualised the relationship between the Crown and Māori following the signing of the Treaty is through “spheres” of authority. The kāwanatanga sphere is where the Crown has decision making power.
148 Ministry of Justice “New Zealand’s constitutional system” Ministry of Justice <justice.govt.nz>.
149 Such as reducing Māori reoffending.
same duties as the Ministry, given their overlapping functions and ability to influence court participant outcomes. Overall, however, it is unclear whether the judiciary would owe the specific duty to reduce Māori reoffending rates.
There are compelling policy reasons to subject the Ministry to the duty to reduce Māori reoffending. The Ministry has a direct role in judicial operations in providing administrative support, training and development.150 This role includes overseeing judicial initiatives such as Te Ao Mārama.151 In addition, the Ministry oversees budgetary matters, which are crucial to the success of judicial initiatives.152 Given that both the Ministry and the Department of Corrections exist within the justice system, it is logical to extend the Department’s duty to the Ministry. It also seems that more individuals would interact with the Ministry and District Court than the Department of Corrections when considering those who are charged but never convicted. The whānau and support people of those individuals can also be affected. The Ministry clearly has the capacity to affect Māori offenders’ behaviour and incarceration rates indirectly. The Treaty should therefore impose the duty to reduce reoffending on the Ministry. Mainstreaming specialist court processes in the District Court could aid in discharging this duty.153 As Māori are arrested, charged and convicted at a higher rate than Pākehā,154 all of which involve a range of procedures in the District Court, it provides a logical starting point.
1 Treaty Principle Analysis
The principles of partnership, tino rangatiratanga, active protection and equity are engaged in a mainstreaming initiative. The “Tū Mai Te Rangi!” Treaty principle analysis also engaged these principles. In implementing policies such as Te Ao Mārama, the Crown must comply with its Treaty obligations to reduce reoffending. These obligations largely centre around the steps taken to implement and achieve the policy.
150 Ministry of Justice “Who we work with” Ministry of Justice <justice.govt.nz>.
151 Ministry of Justice, above n 82.
152 Discussed further below at Part Five, Subheading I Insufficient Resources at 56.
153 For discussion on whether the mainstreaming has the potential to aid Māori, see Part Three Part Three: Can Mainstreaming Create Change for Māori? at 28.
154 “Māori are 37% of people proceeded against by Police, 45% of people convicted, and 52% of people in prison.”
Ministry of Justice “Hāpaitia te Oranga Tangata” Ministry of Justice <justice.govt.nz>.
Under the Treaty principle of partnership, the Crown and Māori must act in good faith towards one another.155 The Crown is only bound to undertake “reasonable” actions.156 This obligation derives from the Crown’s guarantee of rangatiratanga to Māori in exchange for kāwanatanga (governorship).157 The Ministry undertaking a mainstreaming initiative – such as Te Ao Mārama – would be a reasonable step and suggestive of good faith. Given the overrepresentation of Māori in the justice system, Māori must be consulted with and involved in the design and implementation of the initiative. This consultation could include co-designing judicial education, informing the incorporation of kawa and reviewing ongoing performance. Consultation with local iwi may not accurately represent the views of Māori who have migrated away from their whenua. Thus, the Crown may have to consult urban Māori Trust Boards to understand the views of local Māori. Who exactly to consult will depend on the context of each District Court. This aligns with the flexibility of mainstreaming, that each court can implement different tikanga and adapt to the people in the rohe (area). Furthermore, the Ministry must ensure that any mainstreaming initiative has sufficient funding, mechanisms, and support to enable it to be impactful.158
The principle of “tino rangatiratanga” is also engaged. Tino rangatiratanga refers to Māori autonomy and self-governance to the greatest extent possible over Māori affairs159 and sources the “reciprocal duties” between rangatira and their communities.160 It dictates the degree of involvement the Crown should afford Māori. The Crown has a strong interest in an effective criminal justice system. It seems unlikely that the entire initiative could be Māori-led as the District Court serves the entire population. However, the Crown should afford Māori a high degree of tino rangatiratanga over a mainstreaming initiative given that Justice Christian Whata has deemed Māori reoffending rates a “Māori issue”.161 Furthermore, Pākehā-led initiatives have been unable to rectify the disparities thus far. To comply with the principle, Māori should have a significant degree of tino rangatiratanga over the tikanga being mainstreamed and a relatively high level over the supplementary services that disproportionately serve Māori.
155 Waitangi Tribunal The Ngāi Tahu Report 1991 (WAI 27, 1991) at 242.
156 Waitangi Tribunal Māori Electoral Option Report (WAI 413, 1994) at 13.
157 Waitangi Tribunal, above n 97, at 27.
158 At 86.
159 Waitangi Tribunal Haumaru: The Covid-19 Priority Report (WAI 2575, 2021) at 43.
160 Waitangi Tribunal Te Whānau o Waipareira Report (WAI 414, 1998) at xxv.
161 Christian Whata "Lecture Series Celebrating the 25th Anniversary of Te Piringa - Faculty of Law" [2018] WkoLawRw 3; (2018) 26 Wai L Rev 24 at 26.
The principles of “active protection” and “equity” are complementary principles. The Crown must reasonably protect Māori interests to ensure equitable outcomes.162 The duty is heightened where taonga is vulnerable, especially where the Crown has contributed to and knows of the vulnerability.163 The taonga of “Tū Mai Te Rangi!” are relevant here; the Māori people who pass through the District Court, their tamariki and te ira tangata. The vulnerability of these taonga heightens the Crown’s duty to reduce the disparities between Māori and Pākehā. If effectively executed, mainstreaming should be able to reduce Māori reoffending and aid in discharging the Ministry’s duty.164
III Postcode Justice
An additional motivation for mainstreaming is the inaccessibility of specialist courts for Māori. Specialist court services are not offered in every District Court but in specific locations across Aotearoa, mainly in the North Island. For example, the Alcohol and Other Drug Treatment Court only operates in Auckland and Hamilton and the eight Family Violence Courts in various locations across the North Island.165 An offender must be able to physically access the specialist court to utilise its services,166 which many cannot afford. This means many South Island Māori are precluded from the courts’ services and benefits.167 This phenomenon has been described as “postcode justice”.168 Incorporating the practices into every court would aid in combatting this.
IV Conclusion
There are compelling arguments in favour of mainstreaming for Māori. The persistent and harmful position of Māori in the criminal justice system demands criminal justice reform. Any moral obligation aside, the Crown likely has a duty under the Treaty of Waitangi to address
162 This flows from Article III of the Treaty of Waitangi/te Tiriti o Waitangi 1840. See Waitangi Tribunal, above n 97, at 34.
163 At 36.
164 For full discussion, see Part Three, Subheading II What outcomes could mainstreaming bring about for Māori? at 32.
165 Allen + Clarke Evaluation of Family Violence Courts (Allen + Clarke, Final Report, 5 March 2021) at 13.
166 At 10.
167 See Allen + Clarke, above n 165.
168 Thom, above n 44, at 16.
these disparities. Additionally, the specialist courts’ geographic scarcity hinders any widespread potential outcomes for Māori. I will now discuss these outcomes.
Part Three: Can Mainstreaming Create Change for Māori?
In this part, I will evaluate the likely success of mainstreaming specialist court procedures in improving Māori outcomes. I will review the theory that underpins mainstreaming and consider the factors which could enhance or undermine its success.
I The Theoretical Alignment of Therapeutic Jurisprudence and Tikanga Māori
In order to establish whether mainstreaming has significant prospects of success, I will compare therapeutic jurisprudence and traditional Māori dispute resolution. The position of Māori today can be largely attributed to colonisation and the alienation and oppression of tikanga Māori.169 Logically, any attempt at justice reform must meaningfully effect tikanga Māori to rectify this. If mainstreaming does not theoretically align with Māori values, it is difficult to see how this would be possible.
A Traditional Māori Dispute Resolution
Tikanga Māori existed as a system of law and society prior to colonisation.170 This value-based system regulated relationships and behaviour. Khylee Quince, the Dean of Law at the Auckland University of Technology,171 describes pre-colonial tikanga Māori in the context of “te ao kohatu” (traditional Māori society).172 Central to her description is the conception of what it means to “be Māori”.173 The Māori individual is made up of the tinana (body), hinengaro (mind) and wairua (spirit), bound together by mauri (life force). These aspects must all be protected and in a state of ora (balance) for the individual to be hauora (healthy). Despite this formulation of the individual, Māori do not exist in isolation. Māori believe the source of all being is spiritual, and as such, all living things are connected.174 This collectivity facilitates a
169 See discussion above at Part Two, Subheading I Māori in the Criminal Justice System at 18. 170 Justice Joseph Williams refers to this as the “First Law of Aotearoa”, above n 103, at 2 – 5. 171 “Khylee Quince Profile” Auckland University of Technology <academics.aut.ac.nz>.
172 Kylee Quince "Māori Disputes and their Resolutions" in Spiller P (ed) Dispute Resolution in New Zealand (Oxford University Press, 2007) 256 at 257.
173 At 258.
174 At 259.
shared identity derived from whakapapa and structured through iwi, hapū and whānau.175 The community’s harmony depends on the wellbeing of individuals and vice versa. Actions in te ao Māori are determined to be “right” or “wrong” in accordance with tikanga Māori through normative and prescriptive “rules” sourced in mana176 and tapu.177 Disputes arise when a person’s mana is harmed or tapu breached, representing a threat to the community’s harmony.178
Dispute resolution in te ao kohatu corrected the state of imbalance through reciprocal actions or procedures.179 Rangatira or tohunga (chiefs or experts) facilitated the process, mediating discussion to enable remedial action in collaboration with other community members.180 The rangatira encouraged accountability and enabled mana to be restored. Typically, this process would occur in a marae.181 Quince emphasised the importance of dispute resolution procedure:182
Māori place much value on the process itself, as distinct from its outcomes, as an inherent good, because it empowers the parties and the community to take responsibility for the future.
In summation, Quince suggests the “ultimate measure of success in resolving any dispute [is] the degree of social harmony produced”183 and the essential elements of Māori dispute resolution are:184
(a) Community input and responsibility.
(b) Reciprocity and balance.
(c) Process.
175 At 259.
176 Mana represents an individual’s prestige and authority. It can be inherited through whakapapa (mana tūpuna) or sourced from their people (mana tangata). However, it cannot exist in isolation. Mana sources personal and collective strength. Mana can only be maintained within a community. It sources the duty of rangatira to their community. is See Joseph Williams, Justice of the Supreme Court of New Zealand “Can we trust tikanga?” (NZLS-CLE Trust Conference, 2021).
177 At 260.
178 At 262.
179 See Quince’s full discussion on dispute resolution at 264 – 270.
180 At 268.
181 At 269.
182 At 288.
183 At 269.
184 Described at 285 – 292.
(d) An appropriate forum and structure.(e) Use of te reo Māori.
B Comparative Analysis of Tikanga Māori and Therapeutic Jurisprudence
Therapeutic jurisprudence and traditional Māori dispute resolution have striking similarities. Therapeutic jurisprudence studies the law’s ability to produce positive and negative mental outcomes.185 Its focus in the criminal law is on the underlying causes of offending and healing the offender through relational judging, community involvement and complementary specialist services.186
While mainstreaming the specialist courts' best practices would include tikanga Māori integration, therapeutic jurisprudence is not, and does not purport to be, an Indigenous justice system. The use of “Māori justice philosophies” does not produce a traditional dispute resolution forum187 , nor does it represent a legal system designed in accordance with tikanga.188 It is therefore necessary to consider whether the principles of Māori dispute resolution are sufficiently reflected in therapeutic jurisprudence so meaningful change for Māori could arise from its mainstreaming. Given the present alienation of Māori from the justice system and malignment of Pākehā and Māori values, it seems unlikely for change to occur without a substantial degree of alignment. The monocultural nature of the justice system alienates Māori values. Therefore, an initiative capable of change must reflect the underlying values of tikanga Māori; it cannot rely on kawa alone.
There are notable parallels between traditional Māori dispute resolution and therapeutic jurisprudence. Both emphasise the offender’s healing.189 Therapeutic jurisprudence looks to how the law can produce positive mental outcomes.190 Māori dispute resolution focuses on healing the person’s hauora to rectify the imbalance emulating from the offender into the
185 See Brookbanks, above n 22, at 337; Wexler, above n 12, at 226 and 228; generally in Wexler’s attempts to mainstream into criminal courts in Wexler, above n 1.
186 See Part One, Subheading I Specialist Criminal Courts at 7.
187 Juan Tauri “An Indigenous Commentary on the Globalisation of Restorative Justice” (2014) 12(2) Br J Community Justice 35 at 44.
188 Stowers, above n 60, at xiv.
189 Valmaine Toki “Therapeutic jurisprudence and mental health courts for Māori” (2010) 33 Int J Law Psychiatry 440 at 444.
190 For a general description, see above Winick, above n 1.
community.191 This allows the offender’s reintegration into society. In support of healing, therapeutic jurisprudence encourages offender autonomy and accountability for actions and recovery, which is somewhat analogous to tino rangatiratanga. This contrasts with the present system, where the relevance of accountability is largely limited to the sentencing stage as a mitigating factor of an offender’s sentence.192 Both theories utilise the community to enable healing (for example, through community agencies, rehabilitative programmes and iwi).193 This approach differs from the present system which alienates offenders from their whānau and communities and has no specific focus on reciprocity and balance.
Both therapeutic jurisprudence and Māori dispute resolution focus on the future.194 The healing focus preserves offenders’ future wellbeing while holding them accountable for past actions. This focus is in contrast to the current system’s approach which has a greater focus on punishment (namely, imprisonment) at the expense of future liberty and wellbeing.195 The loss of liberty imprisonment imposes has negative flow on effects for Māori individuals and whānau.196
A contentious parallel is that in both theories, the adjudicator is an individual with knowledge of the offender. This includes information on the offender’s background and culture.197 In Māori disputes, the facilitating rangatira shared whakapapa with the offender, victim and other involved parties.198 This connection allowed a meaningfully prescribed course of action designed to rectify the imbalance caused by the harm.199 In a specialist court, the judge can access background information on the offender and speak to them to build rapport. However, these two relationships could not be the same even with the judge’s comprehensive background information on the offender.200 The whanaungatanga between the rangatira and their community members cannot be manufactured in a court, especially if the judge is Pākehā.
191 Toki, above n 172, at 264.
192 Sentencing Act 2002, s 9(2)(b).
193 Valmaine Toki "Will Therapeutic Jurisprudence Provide a Path Forward for Māori?" [2005] WkoLawRw 12; (2005) 13 Wai L Rev 169 at 180.
194 At 177 and 180.
195 Toki, above n 189, at 444.
196 See Part Two, Subheading I(B) The Impacts of these Statistics at 20.
197 Toki, above n 193, at 179.
198 Toki, above n 172, at 266.
199 The rangatira’s approach would be rooted in the principles of aroha, atawhai and manaakitanga, representing their vested interest in the offender and community. See Toki, above n 172, at 265 – 270 for her full discussion on the role of rangatira.
200 Valmaine Toki “Seeking Access to Justice for Indigenous Peoples” (2017) 15 Y.B.N.Z Juris 25 at 33.
There is no kinship connection or sense of responsibility felt by the judge for the offender and no sense of accountability from the offender to the judge.201 An inherent power dynamic places the judge “above” those in the courtroom as a figurehead of a colonial justice system. This is difficult to avoid without a separate criminal justice system202 – the current criminal justice system does not allow for privately led mediation.
Therapeutic jurisprudence cannot facilitate a complete departure from Aotearoa’s adversarial justice system. Adversarialism opposes Māori dispute resolution, which is more akin to mediation. Traditional Māori mediation could involve kanohi ki te kanohi (face-to-face) processes such as kōrerotia (conversation), whiriwhiria-ropua (group discussion) and whaikōrero (speech-making), all used to come to a whakatatū (agreement).203 These processes cannot replace the adversarial criminal process. There is, however, potential to incorporate them within it.
The overarching similarities between therapeutic jurisprudence and Māori dispute resolution suggest there is merit in pursuing a mainstreaming policy. In support of the similarities are the views of Māori at Hui Māori.204 The report from this hui (meeting) called for community-based responses to offending, community accountability, treating addiction and healing offenders.205 These reflect the similarities between the two theories.
II What outcomes could mainstreaming bring about for Māori?
A danger of mainstreaming is that tikanga Māori principles may not be genuinely given effect to. This concern is exacerbated by the generalist nature of a mainstreaming initiative that aims to benefit all New Zealanders who access the District Court, not just Māori. I will utilise the framework of the District Court judicial policy Te Ao Mārama to assess the likely practical
201 Toki, above n 200, at 33.
202 R v Mason [2012] HC 1361 at [37] – [38]. Mason applied for his murder and attempted murder charges to be dealt with in accordance with tikanga under a parallel tikanga criminal justice system. Justice Heath determined that custom could “play a meaningful role in criminal proceedings, provided it can be accommodated within the existing statutory system.” Under this logic, the Crimes Act 1961 had extinguished any parallel criminal justice system.
203 Toki, above n 65, at 203.
204 The kōrero from the Māori Justice Hui, as reported in Te Uepū Hāpai I te Ora/Safe and Effective Justice Advisory Group Ināia Tonu Nei: Hui Māori Report (Hāpaitia te Oranga Tangata/Safe and Effective Justice, 5 April 2019).
205 At 21.
outcomes of a mainstreaming policy. The policy contains a broad set of goals which I will use to analyse Māori outcomes:206
(1) Strengthen access to justice.
(2) Build confidence in the courts and the rule of law.
(3) Improve outcomes for all who pass through the District Court.
(4) Improve the safety of New Zealand communities.
Despite the apparent breadth of these individual aims, I argue they are interconnected. Enabling specialist court best practices in every District Court strengthens access to justice. Allowing more individuals to access the specialist courts’ best practices, including tikanga, should improve procedural fairness. This will build confidence in the courts and the rule of law. Greater confidence in the law should lead to greater compliance with sentences, improving outcomes for those directly involved and safety in communities.
A Access to Justice
Integrating specialist court processes into the District Court should strengthen access to justice for Māori. Defining “access to justice” in the context of a mainstreaming initiative is difficult. “Justice” is an expansive and ambiguous concept that is contextually dependent. The law can be said to facilitate “justice” where it is fair and reasonable.207 The therapeutic processes of specialist courts aim to heighten fairness for participants by accounting for their circumstances.208 Therefore, I am equating justice with the benefits of the specialist courts and access to justice with access to those benefits.
An institutional barrier209 to accessing specialist court benefits is geographical. Only those in close physical proximity can easily access the courts. Insufficient resources appear to be a
206 Taumaunu, above n 5, at 36.
207 Oxford Learner’s Dictionaries “justice” (2022) Oxford University Press <oxfordlearnersdictionaries.com>. 208 See Part Two, Subheading II(B) Building Confidence in the Courts and Rule of Law for discussion on procedural fairness at 34.
209 Julinda Beqiraj and Lawrence McNamara International Access to Justice: Barriers and Solutions (Bingham Centre for the Rule of Law Report, 2014) at 5. Institutional barriers to justice include “insufficient government resources to guarantee or facilitate access to justice”. This applies here as specialist courts cannot be replicated country-wide largely for resourcing reasons.
significant barrier to replicating specialist courts nationwide.210 Implementing the best practices in all District Courts would allow more Māori to access them, improving access to justice. Under the most recent 2018 census data, 14.8 per cent of Māori (110,301 people)211 live in the South Island and are therefore not in the vicinity of the majority of the specialist courts, which are located in the North Island.212 Furthermore, specialist courts are geographically inconsistent in the North Island. Thus, even Māori in the North Island may struggle to access them. Mainstreaming should rectify these geographic inequities.
B Building Confidence in the Courts and Rule of Law
If effectively implemented, mainstreaming specialist court procedures should improve Māori confidence in the judiciary and strengthen the rule of law. This can elevate individual Māori and community wellbeing.
Improving procedural fairness can heighten confidence in the courts and strengthen the rule of law.213 Procedural fairness results when individuals believe they are experiencing respect, neutrality, trust and the opportunity to participate in proceedings from judicial authorities.214 Procedural fairness in individual court hearings is critical to public perceptions of the justice system as a whole.215 The fact that court participants generally care more about procedural fairness than the outcome of their case demonstrates this.216 People are more willing to accept outcomes if they feel they were fairly reached.217 This has flow on effects to the rule of law, the principle that there is equality under the law, which is accessible to all and equally applied by an independent judiciary.218 People who feel they have been dealt a fair outcome are more likely to respect that outcome and the law that facilitated it, strengthening the rule of law.
210 I infer this from the efforts of the Chief Judge’s advocacy of mainstreaming with no additional resources. See above n 77.
211 Stats NZ “Ethnic group (detailed total response – level 3) by age and sex, for the census usually resident population count, 2006, 2013 and 2018 Censuses (RC, TA, SA2, DHB)” Stats NZ <nzdotstat.stats.govt.nz>. 212 See my previous discussion of Postcode Justice at 26.
213 See above n 268.
214 Kevin Burke and Steven Leben “Procedural Fairness: A Key Ingredient in Public Satisfaction” (2007) 44 Court Review: The Journal of the American Judges Association 4 at 4.
215 The conclusion of Burke and Leben, above n 214.
216 At 5.
217 At 6.
218 LexisNexis “Rule of Law” LexisNexis New Zealand <lexisnexis.co.nz>.
Presently there is a lack of confidence in Aotearoa’s justice system. The Safe and Effective Advisory Group report “Turuki! Turuki!”219 suggests the system is not fulfilling Aotearoa’s diverse needs.220 The judiciary offers little assistance in navigating a system based upon values foreign to many.221 There is insufficient linguistic and cultural competency.222 The report’s respondents considered the system to be “confusing and alienating”.223 People cannot respect and abide by a law they do not understand. Change is clearly needed.
Specialist courts improve the lower perceptions224 ethnic minorities tend to have of judicial procedural fairness.225 This improvement is generally attributable to specialist courts, not specifically to incorporating cultural processes. Therefore, these findings should apply to Māori. Mainstreaming should heighten Māori procedural fairness through greater respect for Māori culture and compassion for the offender’s background in a relational way aligned to tikanga.226 These can facilitate feelings of safety and comfort in a previously alien justice system in alignment with the factors of procedural fairness.227 This satisfaction could eventuate into greater respect for the judiciary and law in general. Furthermore, if individual Māori experience greater procedural fairness, this may affect how their whānau and community view the justice system.
Whether mainstreaming delivers greater procedural fairness for Māori depends on the ability of judges to implement therapeutic jurisprudence and tikanga effectively. Interactional depth may be limited by the homogeny of the bench in terms of lived experiences and the inability to relate to defendants. As Stanley Fish contends in his theory of “interpretive communities,”
219 Te Uepū Hāpai I te Ora/the Safe and Effective Justice Advisory Group Turuki!Turuki! Move together: transforming our criminal justice system (Hāpaitia te Oranga Tangata/Safe and Effective Justice, 12 December 2019).
220 At 13.
221 At 13.
222 At 13.
223 At 13.
224 See Cassandra A Atkin-Plunk, Jennifer H Peck; Gaylene S Armstrong “Do Race and Ethnicity Matter? An Examination of Racial/Ethnic Differences in Perceptions of Procedural Justice and Recidivism among Problem- Solving Court Clients” (2019) 9(2) Race Justice 151 at 163.
225 Burke and Leben, above n 215, at 17.
226 At 4.
227 See generally Burke and Leben, above n 214.
every individual’s worldview is shaped by their environments and lived experiences.228 A judge’s worldview derives from their upbringing and personal circumstances which presuppose their judicial interactions. Substantial privilege underlies judicial appointment, even in being able to attend university. To generalise, judges may therefore be incapable of connecting with offenders on the level required of therapeutic jurisprudence. Furthermore, non-Māori judges may be unable to meaningfully incorporate tikanga Māori kawa and principles to improve Māori outcomes. Then Chief Judge of the Māori Land Court, Sir Edward Taihakurei Durie, recognised this: 229
Judges, like all people, see the world in terms of their own upbringing and cultural experience, which, naturally, colour their thinking. It would seem that there can be no true impartiality where questions of culture are involved. As judges are not without culture and culture pervades most things, it is difficult to see how justice can be provided in cross-cultural conflict cases by recourse to the courts in the usual way.
This is a point well made. There is a degree of inevitability in the diverging backgrounds of judges and offenders. Judges will likely always have higher-level education and the common background determinants of offending230 are unlikely to have been experienced by judges.
The present reality of the judiciary is promising. Despite the bench’s historical lack of diversity,231 Māori judicial representation is increasing.232 Furthermore, judges are more
228 See generally Stanley Fish Is There a Text in this Class?: The Authority of Interpretive Communities
(Harvard University Press, 1982) and at 14.
229 Roy Perret “Dual Justice: the Māori and the Criminal Justice System” (1999) 4(2) He Pukenga Kōrero 17 at 23 citing Edward Taihakurei Durie “Justice, Biculturalism and the Politics of Law” in Anna Yeatman and Margaret Wilson (eds) Justice and Identity: Antipodean Practices (Bridget Williams Books, Wellington, 1995) 38.
230 For example, an individuals’ family circumstances, education level, economic status.
231 See generally Helen Winkelmann, Chief Justice of New Zealand "Renovating the House of the Law (Keynote Speech to Te Hūnga Rōia Māori o Aotearoa (Māori Law Society), 29 August 2019)
<courtsofnz.govt.nz>; Helen Winkelmann, Chief Justice of New Zealand "What Right Do We Have? Securing Judicial Legitimacy in Changing Times" (The Dame Silvia Cartwright Address 2019, 17 October 2019) < courtsofnz.govt.nz>.
232 More than half of the appointed judges in 2020 were Māori or Pasifika. For more information, see The District Court of New Zealand “New Judges Bring Extra Diversity” (2020) The District Court of New Zealand
<districtcourts.govt.nz>; “Māori Dominate in New Appointment of District Court Judges” RNZ (22 January 2020) <rnz.co.nz>. In 2021, three additional Māori District Court judges were appointed. See David Parker “Three District Court Judges Appointed” (25 February 2021) New Zealand Government <beehive.govt.nz>.
willing to consider tikanga Māori substantively233 and procedurally, 234 even where not legislatively required. Now Justice Joseph Williams has suggested judges are generally willing to co-operate in matters of tikanga Māori; they just do not know where to start.235 Te Kura Kaiwhakawā/the Institute of Judicial Studies emphasises tikanga and te reo Māori in its continuing judicial education curriculum.236 Given the rate of change, the judiciary may be able to effectively implement tikanga and interact therapeutically to facilitate procedural fairness for Māori.
Defence lawyers must be considered when evaluating a mainstreaming initiative’s ability to heighten procedural fairness. Lawyers are capable of influencing court participants’ perceptions of procedural fairness.237 Through their role in ensuring the correct application of the law for their clients, lawyers play a significant role in upholding the legitimacy of the law.238 The fact that a defendant spends more time with their legal counsel than the judge supports this. Defendants who experience what they consider fair treatment from their lawyer are more satisfied with the system.239 The lawyer facilitates procedural fairness by providing opportunities to participate in decision-making and respectful, non-judgemental interactions.240 Thus, lawyers employing techniques of therapeutic jurisprudence can improve court
233 Hastings J in R v Grace [2020] NZDC 13862 cites the following as examples of the proposition that judges are increasingly incorporating tikanga Māori substantively: Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016] 3 NZLR 378; R v Mason [2012]
NZHC 1361[2012] NZHC 1361; , [2012] 2 NZLR 695 at [28].
234 The former Chief Judge of the District Court represented the judiciary’s eagerness to incorporate tikanga. Jan-Marie Doogue “Generations of Disadvantage: A View from the District Court Bench” [2018] OtaLawRw 3; (2018) 15(2) Otago LR 223 at 229 where she said “...it is crucial that all our Judges are culturally competent. This includes the ability to understand the key tikanga Māori concepts that will come into force next year, as well as ongoing education on tikanga and te reo Māori. Our Judges will need to be able to both understand the disadvantage that those children and young persons who come into the Court have faced, as well as recognise how their whanau, hapū, and iwi can be part of the solution”. Also supporting this is the fact that many of the specialist courts were creations of judicial initiative. For example, The first Kooti Rangatahi was established by then Judge Heemi Taumaunu in 2008, see John Walker “Taking lessons from the Rangatahi Courts” (2018) 2 LawNews 1. Te Kooti Matariki was established in 2010 by the late Chief District Court Judge Russell Johnson, see Klinkum, above n 2, at 6.
235 Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1 at 33.
236 Te Kura Kaiwhakawā Institute of Judicial Studies “Our Work” Te Kāwanatanga o Aotearoa New Zealand Government <tkk.justice.govt.nz>.
237 E Raaijmakers, and others “Criminal defendants satisfaction with lawyers: perceptions of procedural fairness and effort of the lawyer” (2015) 21(2) P C & L 186.
238 At 198.
239 At 190.
240 At 189.
participants' perceptions of procedural fairness. In a specialist court, lawyers have knowledge of which provisions to engage with to ensure the best outcome, support and services for their client. Thus, defence lawyers can impact the success of mainstreaming.
Without lawyers' commitment to the therapeutic underpinnings of mainstreaming, its chances of producing outcomes for Māori are limited. The issue is that lawyers are not subject to the judicial education of the Institute of Judicial Studies, nor are they bound by judicial policy. Instead, the New Zealand Law Society (“NZLS”) regulates lawyers through the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008. Presently, there is no mention of tikanga Māori or therapeutic jurisprudence in these regulations. This means that if the District Court mainstreams specialist court processes through judicial policy, lawyers have less incentive to act therapeutically and incorporate tikanga Māori than judges.
(a) Lawyers and Therapeutic Jurisprudence
Lawyers in Aotearoa are free to exercise their personal ethics within the bounds of the Rules.241 Imposing obligatory therapeutic jurisprudence contradicts this as it essentially dictates lawyers’ ethics for them. A defence lawyer’s role is not to rehabilitate an offender but to defend them against the prosecution’s case.242 Therapeutic jurisprudence may jeopardise this role as it implies that the judge, prosecution and defence are on the same “team” to heal the offender.243 A hypothetical scenario demonstrates this conflict.244 A client’s rehabilitation may require them to accept responsibility for their actions by pleading guilty.245 However, the prosecution may have a weak case against the defendant and the defendant may not want to plead guilty. What is the therapeutic defence lawyer to do in such a situation? There may be a conflict
241 Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008.
242 Rule 13.13.
243 An issue raised in Morris B Hoffman “Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous” (2002) 29 Fordham Urb Law LJ 2063 at 2093 and Nigel Stobbs “Therapeutic Jurisprudence and Due Process – Consistent in Principle and Practice” (2017) 26 JJA 1 at 6.
244 This simplified hypothetical was adapted from the example given in Tamar M Meekins “Risky Business: Criminal Speciality Courts and the Ethical Obligations of the Zealous Criminal Defender” (2007) 12 Berkeley J Crim L 75 at 110. The hypothetical scenario Meekins offered was a defendant being asked incriminating questions on drug use/purchase. In a typical Court the defendant would want to object to these questions so as not to self-incriminate. In a specialist court the defendant may be expected not to intervene so as to allow the defendant to be open and heal.
245 Accountability is a key tenet of therapeutic jurisprudence. See discussion at Part One, Subheading I Therapeutic Jurisprudence and Specialist Criminal Courts at 7.
between what is therapeutically best for the client and what is best for their defence. Thus, a defence lawyer may choose to operate therapeutically, but integrating the practice profession- wide could pose problems.
While imposing therapeutic obligations onto defence lawyers may not be viable, I do not see this as a problem. I do not believe defence lawyers will hinder any mainstreaming process or interfere with procedural fairness. A defence lawyer’s functions are not analogous to a judge’s. Their role is not to be neutral and unbiased but to advocate. Many academics have found that some lawyers already utilise therapeutic jurisprudence techniques.246 Defence lawyering has intense emotional demands including “interactional dexterity” and “emotional aptitude”.247 The approach of many defence lawyers will therefore align with any mainstreaming effort.
(b) Lawyers and Tikanga Māori
Lawyers must be relatively well versed in tikanga and te reo to facilitate procedural fairness for Māori in their interactions. However, only 6.9 per cent of lawyers are Māori248 and 0.095 per cent of lawyers speak te reo.249 When comparing these statistics to the proportion of Māori in the justice system,250 a picture forms of a current population of lawyers unequipped to relate to Māori clients at the level that may be required to facilitate procedural fairness. Although there has been limited historical education of Māori legal issues in Aotearoa law schools, there is movement in this space. The New Zealand Council of Legal Education will mandate tikanga Māori in all law degrees.251 Additionally, Māori legal academics are undertaking extensive research into “Indigenising the New Zealand law degree”.252 The results of the initial consultation of the latter suggest law students are receptive to the idea − 71 per cent of
246 R Daniel Okonkwo and Dylan Nicole de Kervor “There are Two Sides to Every Story: Collaboration Between Advocates and Defenders in Achieving Systematic Juvenile Justice Reform” (2012) 15(3) University of Pennsylvania Journal of Law and Social Change 436 at 438; David B Wexler “Therapeutic jurisprudence and the rehabilitative role of the criminal defense lawyer” (2005) 17(3) St Thomas L Rev 743 at 747.
247 Lisa Flower “Chapter 11: The loyal defence lawyer” in Susan A Bandes and others (eds) Research Handbook on Law and Emotion (Edward Elgar Publishing, Cheltenham, United Kingdom, 2021) 165 at 175.
248 James Barnett, Marianne Burt and Naveneeth Nair Snapshot of the Profession 2021 (LawTalk, 2021) at 38.
249 At 36.
250 See Part Two, Subheading I Māori in the Criminal Justice System at 18.
251 Tikanga Māori has been mandated in all core law degree courses at all New Zealand universities. See Tumamao Harawira "Tikanga Māori to be taught in law degree courses" (25 March 2022) Te Ao Māori News
<teaomaori.news>.
252 Faculty of Law "Indigenising the New Zealand law degree" University of Otago <otago.ac.nz>.
respondents supported mandating an introductory te reo paper in their law degree.253 The NZLS’ 2022 Independent Review of the Aotearoa legal service also advocated for greater tikanga and te reo incorporation into continuing legal education.254 While tikanga Māori is absent from the Lawyers and Conveyancers Rules 2006, the NZLS Independent Review findings may change this, given the NZLS’ focus on updating the governing regulations. The rate of change in this space suggests that while lawyers may not be presently sufficiently equipped to effectively utilise tikanga to improve procedural fairness, they should be in the future.
Mainstreaming the relational and procedural aspects of tikanga Māori must be “genuine” to facilitate procedural justice. Failing to implement expansive Māori concepts properly poses the risk of window dressing and further alienating Māori. As Māori are unlikely to be afforded complete tino rangatiratanga over a separate criminal process or a mainstreaming initiative,255 this is certainly a possibility. Stowers utilises an example from the AODTC to exemplify this. While the Pou Oranga ensures engagement with an offender’s whānau and iwi, no real power lies with the whānau in handling the participant’s rehabilitation.256 This limits the potential positive impact of whānau who are crucial in traditional Māori dispute resolution. Despite this, the theoretical alignment of therapeutic jurisprudence and traditional Māori dispute resolution257 provide the foundation for genuine incorporation.
Genuine incorporation of tikanga must resonate with Māori subject to the system. Whether the incorporation resonates with Māori will depend on each individual court participant. Khylee Quince states that:258
253 Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase Two: Consultation 2021 (Michael and Suzanne Borrin Foundation, Issues Paper, 2021).
254 Independent Review Panel The Regulation of Lawyers and Legal Services in Aotearoa New Zealand: Independent Review (New Zealand Law Society, Discussion Document, June 2022) at 14.
255 See Part Two, Subheading II The Crown’s Obligations under te Tiriti o Waitangi/the Treaty of Waitangi at 21.
256 Stowers, above n 60, at xiv.
257 Discussed above at Part Three, Subheading I The Theoretical Alignment of Therapeutic Jurisprudence and Tikanga Māori at 28.
258 Quince, above n 172, at 280.
Any modern Māori system of dispute resolution must incorporate fundamental aspects of tikanga, including a Māori conception of what it means to be human, concepts of whakapapa, mana, tapu and collectivity. It must also establish practical processes that reflect the reality of present day Māori people. The framework of such a system must be one which has as both its starting and ending a coherent and balanced world which recognises both the centrality of humans in a connected universe and that humans are kaitiaki of each other and of all other things.
Under this approach, it would be difficult for any implementation of tikanga Māori into the Pākehā legal system to be meaningful to Māori. However, Quince poses an alternative approach. She suggests that modern Māori who are not immersed in te ao Māori only need to understand the broad concepts of symmetry and reciprocity for a process rooted in tikanga to be successful.259 The two varying approaches align with the idea that mainstreaming would look different in every court, depending on the area's nature. Thus, what is window dressing in one court may not be in another. In rural areas where tikanga Māori is more prevalent in daily life, a more in-depth process of tikanga incorporation may be necessary. But for the large population of urban Māori in city centres, Quince’s second articulation would suffice.
Quince and Cleland suggest that for an initiative to be “culturally appropriate” it must satisfy two “levels”.260 The first level is the procedural correctness of the initiative.261 The second looks to the ability of the first level’s procedures to create a comfortable and familiar social environment.262 I suggest that both levels must be satisfied for the incorporation of Māori kawa and te reo into the District Court to be meaningful. The first level requires the kawa to be incorporated in accordance with the relevant tikanga, for example, in the correct order by the correct person. The judicial and legal education263 rate and ease of access to resources on such kawa should fulfil this level. Satisfying the second level may be more challenging as it relies on genuinely effecting the Māori procedures. Whether a mainstreaming policy would be genuine or window dressing would depend on the practical reality of the policy.
259 At 292.
260 Alison Cleland and Khylee Quince Youth justice in Aotearoa New Zealand: law, policy and critique
(LexisNexis NZ, Wellington, 2014) at. [5.4.6].
261 At [5.4.6].
262 At [5.4.6].
263 See Part Three, Subheading II(B) Building Confidence in the Courts and Rule of Law at 34.
C Improving Outcomes for All Who Pass Through the District Court
One of Te Ao Mārama’s goals is to improve outcomes for all District Court participants. Reduced recidivism is the most desirable outcome of mainstreaming for Māori. An important distinction here is that this goal is for “all” – the entire population of Aotearoa. Te Ao Mārama does not purely exist to elevate Māori. While the general population includes Māori, there is a risk that the interests of Māori will be subsumed by the majority. An effective mainstreaming initiative must explicitly prioritise Māori interests. The Treaty may also require this. In “Tū Mai Te Rangi!” the Ministry of Justice’s holistic goal of reducing reoffending was insufficient to fulfil their obligation to Māori.264 In implementing Te Ao Mārama, the Ministry of Justice may breach its obligation here if it fails to articulate specific Māori goals.
1 Reduced Recidivism
An ideal outcome of mainstreaming is reduced recidivism.265 Procedural fairness may lead to reduced reoffending. Heightened procedural fairness is arguably an improved outcome in itself as it generates positive mental outcomes in participants.266 However, its implications extend beyond this. Perceiving the court process as fair can lead to greater respect for the prescribed sentence. This can lead to increased compliance with that sentence and behavioural change. This behavioural change is ideally in the form of reduced offending.267 This phenomenon is relevant to specialist courts:268
Procedural justice is seen as the “missing link” between therapeutic jurisprudence and program compliance because problem-solving courts have a nonadversarial environment, engage in a team-oriented model, give clients a voice, treat clients with respect, and increase positive client-judge interactions.
The connection between specialist courts and reduced recidivism has been statistically proven.269 In Aotearoa, Te Kooti Matariki and Ngā Kooti Rangatahi exhibit reduced
264 Waitangi Tribunal, above n 97, at 83.
265 Recidivism is defined as the tendency to reoffend.
266 See discussion above under Part Three, Subheading II(B) Building Confidence in the Courts and Rule of Law at 34.
267 See Tom R Tyler “Procedural justice and the courts” (2007) 44 Court Review 26 cited in Atkin-Plunk, Peck and Armstrong, above n 224, at 154; Burke and Leben, above n 215, at 4.
268 Atkin-Plunk, above n 224, at 158.
269 See generally Atkin-Plunk, above n 224.
reoffending rates in court graduates.270 It is difficult to say the incidence of this reduced recidivism that would fall upon Māori in a mainstreaming initiative – most data focuses on specific specialist courts and all participants.
A system that effectively incorporates tikanga may produce outcomes that the current system cannot through its targeting of the critical failings of the present system for Māori. Incorporating kawa and tikanga principles into the District Court targets the alienation of tikanga, a key issue identified by Moana Jackson.271 This has a greater chance of changing outcomes than addressing the problem's symptoms (i.e., imprisoning criminals to remove them from society). Slightly upstream from this is targeting social and economic drivers of crime for Māori that emanate from colonisation. These include addiction and homelessness and will be dealt with by the external rehabilitative services mainstreaming will provide. If tikanga is genuinely incorporated, some reduction in Māori recidivism should result.272
There are other recognised outcomes for Māori of specialist courts that should appear to some extent in the mainstream:273
(a) Stronger cultural identity.
(b) Reconnection with iwi and whānau.
(c) Better health and reduced burden from addiction.
I recognise that these outcomes are the “best case” and somewhat idealistic. The judiciary alone does not enable the issues experienced by Māori274 and I do not suggest mainstreaming therapeutic jurisprudence could solve such a complex and multifaceted problem. However, such an expansive problem can only be addressed incrementally, and mainstreaming is a viable increment.
270 As explained in the outcomes of existing specialist courts at Part One, Subheading I(B) The Present Interaction Between Specialist Courts and Tikanga Māori at 9.
271 See generally Jackson, above n 3.
272 As discussed at Part Three, Subheading II(B) Building Confidence in the Courts and Rule of Law at 34. 273 As explained in the outcomes of existing specialist courts at Part One, Subheading I(B) The Present Interaction Between Specialist Courts and Tikanga Māori at 9.
274 Inura Fernando “Taniwha in the Room: Eradicating Disparities for Māori in Criminal Justice – is the Legal System up for the Challenge?” [2018] CanterLawRw 3; (2018) 24 Canta LR 61 at 67.
D Creating Safer Communities
It may be a stretch to say that mainstreaming can create safer communities for Māori. However, if it can cause behavioural change and reduce reoffending, then theoretically, communities would be safer.275 Additionally, if Māori believe that the law values their best interests, they may feel safer.276 Courts may be more successful in different geographical locations depending on how Māori communities respond and local services and staff availability. Where the courts are more successful, the communities will be relatively safer. I believe that creating safer communities cannot be a short-term outcome. Reduced reoffending is limited mainly to the two years following graduation from specialist court programmes.277 I argue that there is space to utilise restorative justice to facilitate the longer-term reduced reoffending and safety required to satisfy this aim.
1 The Potential Role of Restorative Justice
The utilisation of restorative justice programmes following an offender’s engagement with the District Court will supplement the aims of a mainstreaming initiative. It will facilitate the continuation of the positive outcomes offenders experience even once exiting court programmes.278 Restorative justice is:279
A method of conflict resolution by which parties work together to address the source of contention and attend to harm caused by the dispute, therein restoring the well-being of the people involved.
In a criminal context, this involves offenders and their victims/those directly affected by the offending meeting face-to-face.280 Restorative justice is a response to the existing criminal
275 Where a “safe community” is in a literal sense one that has less offending and so people are less at risk of being victimised.
276 Where a “safe community” is one where nobody is discriminated against in their protection from offenders on the basis of race.
277 Ministry of Justice, above n 46, at 22. This is discussed in further detail under Part One, Subheading I(B) The Present Interaction Between Specialist Courts and Tikanga Māori at 9.
278 For example, this could aid in extending the short-term reoffending statistics from the AODTC to the longer-term discussed at Part One, Subheading I(B)(1) The Alcohol and Other Drug Treatment Court at 11.
279 Sarah Mikva Pfander “Evaluating New Zealand’s restorative promise: the impact of legislative design on the practice of restorative justice” (2020) 15(1) Kōtuitui 170 at 171.
280 Tauri, above n 187, at 38.
justice system’s inability to reform offenders.281 It promotes behavioural change, reduces recidivism, and improves offender/victim attitudes towards one another.282 These consequences naturally complement therapeutic jurisprudence and should lead to safer communities. While restorative justice encounters are typically pre-sentencing,283 and specialist courts utilise restorative justice principles in proceedings,284 its use after exiting the courts could enhance community outcomes.
Effective restorative justice initiatives such as the Sycamore Tree programme at the Otago Corrections Facility demonstrate the potential of restorative justice. The programme involves offenders and victims of unrelated crimes meeting to gain the other’s perspective.285 By not forcing victims to meet their offenders, participants experience greater objectivity and a reduction in the emotions associated with their personal stake in the offence. This model provides greater opportunities for healing, accountability and behavioural changes.
Programmes such as the Sycamore Tree could enable offenders a continued therapeutic process even after they graduate from a therapeutic court.
III Conclusion
I conclude that traditional Māori dispute resolution and therapeutic jurisprudence are sufficiently similar that mainstreaming could enable change for Māori. If effectively implemented, mainstreaming can aid Māori through:
(a) improving access to justice;
(b) improving procedural fairness;
(c) reducing recidivism; and
(d) strengthening individual identity and whānau/community relationships.
281 At 171.
282 Jeff Latimer, Craig Dowden and Danielle Muise “The Effectiveness of Restorative Justice Practices: A Meta- Analysis” (2005) 85(2) Prison J 127 at 142.
283 Restorative Justice: Evidence Brief (Government of New Zealand, April 2016).
284 For example, through family group conferences in the Youth Court and Ngā Kooti Rangatahi.
285 Glen Conway "Prison course praised" (28 March 2008) Otago Daily Times <odt.co.nz>.
Restorative justice programmes can strengthen these outcomes following an offender’s exit from the judicial system.
Part Four: How Best to Mainstream
I will evaluate the potential routes of mainstreaming and their ability to provide meaningful change for Māori. I will look at the potential of judicial policy and a legislative provision incorporating therapeutic jurisprudence or tikanga Māori into the District Court.
I The Merits of Mainstreaming Tikanga Māori and Therapeutic Jurisprudence through Judicial Policy
Mainstreaming through judicial policy such as Te Ao Mārama provides a legitimate pathway for the procedural incorporation of tikanga Māori in courtrooms without substantive government policy or legislative change. Aotearoa’s constitutional arrangements enable this pathway. Judicial independence ensures the judiciary is constitutionally separate from the other two branches of government and that judges are independent of one another.286 This enables judges to impartially apply the law “free from the power and influence of the State”287 to “maintain public confidence in the administration of justice”.288 Therefore, judicial initiatives can be initiated without the political hurdles associated with legislative change. Instead, they are effected internally through practical guidance and training.
Wexler asserts that implementing therapeutic jurisprudence is possible without legislative change.289 This is preferable where political backlash may prevent legislation from passing. Therapeutic jurisprudence may garner opposition. Its anti-punitive approach defies traditional sentencing notions.290 I often encounter individuals who disparage recently imposed “lenient” sentences. These perspectives likely stem from inflammatory media and a limited understanding of the sentencing process.291 Consecutive governments are consistently called
286 Ministry of Justice, above n 148.
287 Shaun Goldfinch “Judicial Independence and the Administration of the Courts in New Zealand” (1993) 45(2) Polit Sci 153 at 155.
288 Phillip A Joseph and Thomas Joseph "Judicial System - Judicial Independence" (2012) Te Ara the Encyclopedia of New Zealand <teara.govt.nz>.
289 Wexler, above n 12, at 234 – 235; echoed by Klinkum, above n 2, at 17.
290 For further explanation, see Hoffman, above n 243, at 2072 – 2083 for “A Brief History of Punishment”.
291 Roberts and Doob discuss this phenomenon in Julian V Roberts and Anthony N Doob “News Media Influences on Public Views of Sentencing” (1990) 14(5) L & Hum Behav 451. At 466 they note that the public tends to get all of their sentencing information from the media and “One uniform conclusion from all of these studies is that sentencing is a complex phenomenon in need of careful analysis. The mass media, in reporting individual sentences handed down in individual cases as if the issues involved were very simple, do not appear
upon to be “tougher on crime”292 and impose harsher imprisonment sentences. I suggest these critics believe the threat of re-imprisonment is sufficient to deter reoffending. In reality, there is little evidence of any correlation between the length of imprisonment and reduced reoffending.293 Furthermore, these advocates tend to base their opinions of the whole justice system on visions of violent offenders.294 In actuality, violent offences295 comprise 25 per cent of all charges.296 This suggests that the public does not understand the reality of the justice system. These misinformed sentiments demonstrate the danger of allowing the democratic majority to weigh in on legislative criminal reform – it may not occur at all. As the general public has little interaction with judicial policy, its use could circumvent a potential political backlash.
Another advantage of judicial policy is its flexibility. It can be freely changed with little procedural administration. There is no formal public process for changing or amending internal court policies.
A therapeutic jurisprudence judicial policy, therefore, provides an unprecedented opportunity to integrate tikanga Māori297 into District Court proceedings. Judges can implement ethics of care, incorporate tikanga where desirable and utilise sentencing provisions to support offender rehabilitation without legislative provision for therapeutic jurisprudence. A legislative provision may, however, support the specific incorporation of tikanga Māori.
to present sentences in a manner that allows members of the public to draw reasonable conclusions about sentencing”.
292 A pervasive sentiment often supported by the public. For example, see Bryce Edwards “Labour wants to be tough on crime – and on its causes” (15 July 2022) NZ Herald <nzherald.co.nz>, Chester Borrows “’Tough on crime’ rhetoric is cheap, easy and terrifyingly effective” (25 November 2019) The Spinoff <thespinoff.co.nz>, Johnny Blades “Parliament doubles down on serious crime” (10 August 2022) RNZ <rnz.co.nz>.
293 A point made by Justice Matthew Palmer when he challenged the Crown prosecution ahead of a sentencing hearing to bring forward any evidence that longer sentences deterred offending. In the sentencing hearing of R v Wellington [2018] NZHC 2196 at [8] he determined that no compelling evidence had been provided. See David Fisher “The High Court judge’s challenge: Show me the evidence long sentences put people off committing crime” (28 August 2018) NZ Herald <nzherald.co.nz>.
294 Roberts and Doob, above n 291, at 464.
295 Violent offences include homicide and related offences, acts intended to cause injury, sexual assault, dangerous or negligence acts endangering a person, abduction, harassment, robbery, extortion and related offences. These categories were taken from the Ministry of Justice “Data tables” (2022) Research and Data
<justice.govt.nz>, “All charges and convicted charges” spreadsheet.
296See above n 295. Calculated through summing the incidences of non-violent offence charges from 2021/2022 data.
297 Toki, above n 193, at 180.
II An Accompanying Legislative Provision to Strengthen the Incorporation of Tikanga Māori
I have established that judicial policy would be advantageous in incorporating therapeutic jurisprudence into the District Court. However, there is potential for Māori interests to become lost in a general mainstreaming initiative. Therefore, I propose that a provision should be incorporated into the District Court Act 2016, expressly allowing for the incorporation of tikanga Māori. This provision would not incorporate therapeutic jurisprudence as a whole.
As New South Wales magistrate Pauline Spencer said, “legislative change ... drives the adoption of therapeutic jurisprudence approaches”298 and “where ... a project is not supported administratively, legislatively and with additional resources, it can be challenging to institutionalise that project and sustain it over time”.299 Judicial policy is subject to the directives of successive District Court Chief Judges. While the underlying tenets of a mainstreaming policy may remain, it is essential to remember that mainstreaming exists for the entire population. As a mainstreaming policy develops, general relational aspects of therapeutic jurisprudence (which are easier to implement) may subsume any tikanga and Māori focus. This is in contrast to tikanga processes which could take more time and effort to implement meaningfully. Thus, there is a compelling case for enacting a complementary legislative provision to solidify the role of procedural tikanga Māori.
The fundamental constitutional principle of parliamentary supremacy positions legislation as paramount in Aotearoa’s legal system. The New Zealand Parliament, representing the general public, is the supreme law maker.300 Thus, a legislative provision could legitimise the advancement of the procedural incorporation of tikanga. It would provide a point of reference for court participants and a constitutionally stronger benchmark to hold the judiciary accountable.
298 Pauline Spencer "To dream the impossible dream? Therapeutic jurisprudence in mainstream courts" (International Conference on Law & Society, Magistrates' Court of Victoria, 2012) at 19.
299 At 16.
300 Ministry of Justice, above n 286.
A Proposed Legislative Drafting
At the time of writing, there is no provision incorporating tikanga Māori procedurally in the District Court Act 2016 nor the District Court Rules 2014. Furthermore, there is no such provision in Aotearoa’s appellate courts’ governing legislation.301 As therapeutic jurisprudence does not specifically focus on the needs of Māori, the provision’s focus will be tikanga rather than therapeutic jurisprudence. I suggest adding a draft provision to the District Court Act 2016 like so:302
Recognition of Tikanga Māori
(1) The court may regulate its procedures in a way that recognises tikanga Māori.
(2) For the purposes of this Act, tikanga Māori means Māori customary values and practices.
The proposed provision is not revolutionary in its wording. It is deliberately vague. The court’s discretion to recognise tikanga Māori may appear to relegate the provision ineffectual through its relinquishing of power to judges. However, the alternative of mandating tikanga may be counterproductive. Incorporating tikanga into every proceeding could be inappropriate and could alienate Māori offenders who are detached from their culture.303 It would also apply to Pākehā, which may not be desirable or helpful to those offenders or the cause of advancing the position of Māori. The use of the word “recognise” encompasses any manner of methods of incorporation.304 The definition of “tikanga” aligns with other legislation.305
I argue that this provision would not be as polarising as legislating therapeutic jurisprudence or a mainstreaming policy. There is an apparent movement towards recognising Māori interests in the legal system which would support such a provision.306 The provision on its own holds little weight and is unlikely to garner opposition.307 It exists to bolster the judicial policy and existing movement of tikanga incorporation.
301 Supreme Court Act 2003, Supreme Court Rules 2004, High Court Rules 2016, Senior Courts Act 2016, Court of Appeal (Civil) Rules 2005, Court of Appeal (Criminal) Rules 2001.
302 This wording is adapted from that of the Law Commission The Second Review of the Evidence Act 2006
(Law Commission, Report 142 February 2019) at 38.
303 For further discussion of this issue, see Part Five, Subheading III Māori Disconnection from Culture at 59.
304 For example, through kawa, te reo, marae hearings, whānau involvement.
305 Other legislation with this definition was noted above n 302, at 39, at n 24: Te Ture Whenua Māori Act 1993, s 4; Resource Management Act 1991, s 2(1); Public Records Act 2005, s 4; and Fisheries Act 1996, s 2(1).
306 See the descriptions in n 233 and 234.
307 In comparison to my discussion of legislating therapeutic jurisprudence/mainstreaming at The Merits of Mainstreaming Tikanga Māori and Therapeutic Jurisprudence through Judicial Policy 47.
B Lessons from Existing Legislation
Similar provisions from existing statutory schemes can provide insight into how an equivalent District Court provision should be implemented. Despite my proposed provision’s ancillary function, it can still facilitate change if effectively informed by the existing provisions. Conversely, it can hinder change if ineffectively implemented.
Section 27 of the Sentencing Act 2002 demonstrates the importance of the accessibility of provisions seeking to aid Māori. The provision enables the court to hear from anybody regarding how an offender’s personal, whānau, community and cultural background relates to the offence/sentence.308 The Sentencing Act scheme is relevant to my analysis as sentencing is a process of the District Court. Despite the sentencing scheme being “well designed to address the specific concerns of an Indigenous offender facing a sentencing court”,309 it has been historically underutilised.310 A 2000 Ministry of Justice report311 found this was due to a lack of understanding of the provision’s operation and administrative difficulty in using it.312 While this may have changed since 2000, the provision I propose could experience the same trajectory of under-utilisation in its infancy. It demonstrates the importance of practice guidance and advertising the existence and opportunities of such a provision to judges and lawyers.
The Resource Management Act 1991 (RMA) contains provisions that allow the Environment Court to incorporate tikanga procedurally. These provisions demonstrate the importance of culturally appropriate legislation. Section 39 states that the informality of the Environment
308 Section 27(1).
309 Joanna Hess "Addressing the Overrepresentation of Maori in New Zealand's Criminal Justice System at the Sentencing Stage: How Australia can Provide a Model for Change" (2011) 20(1) Pac Rim L & Poly J 179 at 188.
310 Hess, above n 309, at 190.
311 Alison Chetwin, Tony Waldegrace and Kiri Simonsen Speaking About Cultural Background at Sentencing: Section 16 of the Criminal Justice Act 1985 (Ministry of Justice, 2000).
312 At 126.
Court313 means it “shall recognise tikanga Māori where appropriate and receive evidence written or spoken in te reo Māori”.314 Section 269 regulates “court procedure”. The section states that the Environment Court “shall recognise tikanga Māori where appropriate”.315 The Environment Court and District Court jurisdictions are fundamentally different in their interactions with Māori. The Environment Court’s jurisdiction directly substantively touches on Māori interests, whereas the District Court is more generalist. However, this does not detract from the lessons that these sections provide.
Administrative difficulties arise for Māori utilising these RMA provisions. In Tiakina Te Taiao v Tasman District Court,316 the Environment Court held that the section 269 requirement to observe tikanga Māori did not extend to karakia and mihi as of right in pre-conference hearings.317 I drafted the proposed District Court section with these kinds of kawa in mind. The Court directed the parties to apply, in compliance with the Act’s legislative requirements, to undertake these kawa.318 The Court granted the application as the timetable and case load of the day allowed time for the kawa. The matter was relegated to the end of the docket so as not to compel others “to sit through ceremonies not a core part of the secular court’s business”.319 This judgement represents the wrong attitude towards incorporating tikanga into the courtroom. Having to jump through legislative hoops to engage with core tikanga defeats the purpose of the provision. Creating this provision with the intent of giving meaningful effect to tikanga and not providing the practical mechanisms for its use renders it window dressing. The iwi applicants expressed this concern. They found the application process insulting and had subsequent concerns about the court’s ability to deal with substantive matters of Māori interests:320
We have no confidence that our concerns (which are based on our culture) will be heard fairly and with empathy and respect if the Court will not recognise our tikanga in the course of the proceedings... It is bordering on offensive to have to formally apply to the Court for permission to adhere to our own tikanga.
313 Section 39 is titled “Hearings to be public and without unnecessary formality”.
314 Section 39(2)(b).
315 Section 269(3).
316 Tiakina Te Taiao Ltd v Tasman District Court [2008] NZEnvC 98; (2008) 14 ELRNZ 232 (EnvC).
317 At [10].
318 This legislative regime also includes section 291 of the Resource Management Act which provides the administrative requirements for “Other procedures before court”.
319 At [10].
320 At [3].
The link between the genuine recognition of tikanga and the iwi’s faith in the law is evident. It perfectly exemplifies the negative consequences of a lack of procedural fairness.321
The Court applied a balancing test in determining the application. It considered:322
(a) The secular nature of the court;
(b) the paramountcy of fairness and rationality;
(c) the importance of tikanga Māori protocol; and
(d) the importance of timely and accurate requests.
Various criticisms of Tiakina inform how an equivalent District Court provision should operate. Tom Bennion, an academic, practising lawyer and founding editor of the Māori Law Review,323 argues that the Court read section 269 too restrictively.324 He asserts a balancing exercise was not required as the section exists to ensure “that Māori culture enjoys a status as a social norm in court proceedings”.325 Bennion compares the Court’s attitude to the Māori Land Court’s (MLC’s).326 Despite also being a “secular court”, the MLC accepts that “in matters important to Māori, commencement karakia are as intrinsic and also benign as a formal greeting”.327 The Court’s stance in Tiakina represents the dangers of legislatively allowing for procedural tikanga without ensuring judicial actors are well versed in its significance and resourced to implement it. An accompanying transformative judicial policy such as Te Ao Mārama would address this. Tiakina also demonstrates the importance of allowing these kawa as of right. Courts need to be equipped to handle basic Māori protocol ad hoc. Relegating kawa to a particular application process alienates tikanga as “other” compared to the “normal” Pākehā processes. The provision I propose should not require these legislative hurdles. Instead, courts should allow time for the kawa.
321 Discussed at Part Three, Subheading II(B) Building Confidence in the Courts and Rule of Law at 34.
322 At [5].
323 Māori Law Review “Our People” Māori Law Review <maorilawreview.co.nz>.
324 Tom Bennion “Environment Court – Right to karakia and mihi at conference” (2008) 1 MLR Sep 1.
325 At 6.
326 At 6.
327 At 6.
Another illuminating case is Waikere Marae v Waikato Regional Council.328 It concerned a section 269 application for kaumātua (elders) to present evidence in the familiar setting of a marae. Marae hearings are contemplated in the mainstreaming of specialist courts and hence by the provision I propose. The Court granted the application with the following conditions:329
(a) Advance notice of the relevant cultural issues;
(b) assurance of suitable court staff accommodation;
(c) the iwi granting the court control of the marae; and
(d) the ordinary evidence rules applying (so the kaumātua could be cross-examined).
These conditions are unnecessarily arduous. Accommodating staff and handing complete control of the marae over are financially burdensome and time-consuming requirements for local iwi and hapū. It may be impractical if others need the marae, or it is not in any condition to house manuhiri (guests). Although marae hearings can facilitate greater comfort than ordinary courts, relinquishing control of the marae seems to counteract that effect. Moreover, marae hearings may insult iwi. In support of this, Quince suggests that: 330
...conducting Pākehā court hearings on the marae is seen by many Māori to denigrate the mana of the marae, by reinforcing the notion that the mana of the community is beneath the Pākehā law.
There are lessons to be learnt from Waikere Marae. First, there must be an adequate budget to accommodate court staff outside the marae to lessen the financial burden on iwi. Secondly, a relatively high degree of tino rangatiratanga should be afforded to iwi and hapū over their own marae for such proceedings to be truly meaningful. Effective criminal justice reform cannot occur without the support of rangatira and tangata Māori. This would align with Cleland and Quince’s two levels of cultural appropriateness and facilitate a culturally comfortable experience.331
These two cases demonstrate why a provision alone could not create change for Māori. The cases represent a lack of appreciation of the underlying significance of the relevant tikanga. An
328 Waikere Marae Inc v Waikato Regional Council EnvC A059/01 (2001).
329 At [10].
330 Quince, above n 172, at 180.
331 Quince and Cleland, above n 260, at [5.4.6].
unsupported provision could become a “tick-box” exercise for the judiciary for the appearance of change or not utilised at all. I appreciate that both cases were over a decade ago and substantial transformative change has been occurring in the judiciary since.332 However, they still demonstrate that underlying transformative attitudinal change must occur for any provision to be successful. This change could come in the form of effective judicial policy.
III Conclusion
In order to allow Māori to reap the benefits of a mainstreaming initiative designed for the entire population, I propose the following strategy will be most effective:
(a) a judicial policy mainstreaming specialist court processes, including tikanga Māori and te reo Māori; and
(b) a legislative provision in the District Court Act 2016 allowing for the procedural incorporation of tikanga Māori.
The combination of these two elements should allow for adequate judicial training and an attitudinal shift while maintaining a sufficient Māori focus. The legislative provision must be accessible and not unduly burdensome on Māori who use it.
332 See Part Three, Subheading II(B) Building Confidence in the Courts and Rule of Law at 34.
Part Five: Additional Factors that Threaten the Success of Mainstreaming Generally
In this part, I will respond to five factors that could impact the success of mainstreaming for Māori. These factors can constructively inform the implementation of mainstreaming to maximise the benefits and minimise the risks for Māori.
I Insufficient Resources
A mainstreaming initiative will only be able to meaningfully give effect to therapeutic jurisprudence and tikanga Māori and produce the desired outcomes if sufficiently resourced. I argue that cost is inevitable in any mainstreaming initiative.
The Chief Judge asserted that no additional resources would be required to implement Te Ao Mārama, echoing the earlier sentiment of Olivia Klinkum.333 These views were based upon their vision of mainstreaming as a series of relational changes among existing court actors rather than additional services and staff. I argue this would still incur additional cost. Judges utilising an ethics of care approach, incorporating relational tikanga and introducing kawa would not directly require additional resources. However, the District Court is already under immense pressure. An ever-multiplying case load of increasingly “more serious and complex”334 cases already result in significant delays.335 Rising costs336 mean judges are incentivised to keep their interactions to a minimum. These factors suggest that changing the current in-and-out approach would be costly. Judges engaging more with court participants, having to read the additional information provided, and incorporating kawa would increase the time of each hearing.337 This would reduce the number of cases the District Court could process daily, logically increasing costs.
333 See Klinkum, above n 2, at 17 and Taumaunu, above n 5, at 30.
334 Jan-Marie Doogue "Testing resolve in testing times" (2018) 914 LawTalk 42.
335 Kiritapu Allan "Government action to tackle delays in Family Court" (5 July 2022) New Zealand Government <beehive.govt.nz>.
336 Saskia Righarts and Mark Henaghan "Public perceptions of the New Zealand Court System: An Empirical Approach to Law Reform" [2010] OtaLawRw 6; (2010) 12 Otago LR 329 at 329.
337 As suggested above in Tiakina at 316, discussed in Part Four, Subheading II(B)(2) Resource Management
Act 1991 at 51.
There will be additional cost in incorporating any degree of specialist services. Specialist courts presently require substantial funding. For example, one Rangatahi Court requires support from local marae, marae whānau, kuia, kaumātua, trustees, court staff, the Ministry of Justice, Oranga Tamariki, the police, iwi liaisons, iwi social services, programme providers, youth advocates and so on.338 Even a watered-down, mainstreamed version of these processes would require more staff than the average court hearing and, therefore, more salaries to be paid. For example, in the Alcohol and Other Drug Treatment Court, an additional cost of $14,456.13 per participant339 is required to account for ancillary personnel and resources. As the District Court handles 195,000 matters each year,340 the potential for additional cost is vast. While mainstreaming does not aim to replicate specialist courts exactly, even a fraction of this figure rebuts the notion that mainstreaming would be costless.
Despite the inevitable additional cost, the government’s endorsement of Te Ao Mārama in the 2022 budget suggests this may not necessarily hinder a mainstreaming initiative. The government allocated $47.4 million towards Te Ao Mārama in the coming four years.341 This budget provides an additional $241 per matter,342 which seems insignificant considering the potential cost of judicial training and specialist services. While it is positive that the executive has allocated funds towards mainstreaming, it is a low figure compared to other court initiatives. For perspective, in 2020, $163 million was allocated to physically upgrading Aotearoa’s judicial infrastructure in the process of “decolonising” the courts.343 There is also the possibility that mainstreaming can produce net-positive outcomes.344 For example, the Alcohol and Other Drug Treatment Court pilot cost $14.46 million and resulted in estimated benefits of $19.19 million.345 If this transpires, fewer inputs would be required. Regardless, the
338 Toki, above n 200, at 27.
339 Relative to the typical cost of a court participant. Ministry of Justice Alcohol and Other Drug Treatment Court cost-benefit analysis (Ministry of Justice, June 2019) at 3.
340 The District Court of New Zealand “Statistics 2021” (2021) Reports, Publications & Statistics
<districtcourts.govt.nz>.
341 What this figure encompasses/how it was calculated is unclear. Ministry of Justice "Budget 2022 Ministry of Justice" (2022) Ministry of Justice <justice.govt.nz>.
342 Calculated through 47,000,000/195,000 using the number of matters from the previous year ended. See the District Court of New Zealand, above n 340.
343 New Zealand Law Society Access to Justice: Stocktake of initiatives (New Zealand Law Society, Research Report, December 2020) at 69.
344 If mainstreaming is successful in reducing reimprisonment, therefore reducing the cost of prison inmates to the State.
345 Ministry of Justice, above n 339, at 3.
government must allocate sufficient funds to rectify the disparities and comply with its Treaty obligations.346
II Net Widening
The phenomenon of “net widening” could threaten the positive benefits of mainstreaming for Māori. According to Morris Hoffman, net widening occurs when initiatives designed to benefit a specific societal group inadvertently advance the interests of broader populations. This reduces the effectiveness for the original group.347 While judges can tailor their approach to Māori to be more culturally appropriate, the therapeutic jurisprudence approach inherent to mainstreaming will benefit all who participate in the District Court. Net-widening will occur if mainstreaming’s benefits to Pākehā outweigh those to Māori.
Net widening is not a new concept to Aotearoa. The Ellis case provides a recent example.348 In te ao Māori, mana transcends death. This principle was utilised successfully in applying for the continuation of an appeal of a Pākehā man’s criminal case posthumously.349 The novel utilisation of the Māori concept of mana for a Pākehā man’s benefit exemplifies the notion of net widening. Mana is a core tenet of tikanga Māori, yet one of its first substantive incorporations into the common law was for the benefit of Pākehā. It is pleasing to see greater incorporation of tikanga into the common law. However, the utilisation of a sacred Māori concept was to benefit Pākehā and not Māori. I believe the incorporation of tikanga into the law should benefit Māori first and foremost, given the historical marginalisation of tikanga. While mainstreaming tikanga into the District Court would not substantively change the law, a similar effect could result.
The legislative provision I propose limits the potential for net widening by bringing a sufficient Māori focus back into the District Court.
346 Sufficient funding is an aspect of being a good faith and reasonable Treaty partner, as described at Part Two, Subheading II(B)(1) Treaty Principle Analysis at 24.
347 Hoffman, above n 243, at 2071.
348 Ellis v R [2020] NZSC 89.
349 The leave for continuation of the appeal granted in Ellis v R [2020] NZSC 89 was done so on the basis of the arguments made on Ellis’ behalf in Ellis v R [2020] NZSC Trans 26.
III Māori Disconnection from Culture
The alienation of many Māori from their culture may hinder the effects of incorporating tikanga Māori into court proceedings.350 Encountering it in court may be counterproductive if the tikanga-inclusive system is less familiar than the Pākehā system.351 For many urban Māori encountering these concepts for the first time in the court system, it could lead to negatively associating tikanga with the punitive, colonial justice system.352
These critiques were made in the context of therapeutic jurisprudence generally. Mainstreaming can likely circumvent these concerns through the judges’ ability to ascertain each offender’s standing with their whakapapa and how or whether they wish to engage with the tikanga. Furthermore, excluding kawa, many of the incorporated Māori concepts will be implicit in judicial interactions. The general relational approaches should work for all who pass through the court. An offender wishing to engage more intensely with tikanga can be accommodated. Māori who are disconnected from their culture will not be harmed by mainstreaming tikanga through therapeutic jurisprudence.
IV Lack of Historical Data on Efficacy for Māori
A limitation of relying on the past results of specialist criminal courts353 to predict future mainstreaming outcomes for Māori is the lack of historical data on their efficacy for Māori. There is a lack of empirical data on specialist courts, especially in Aotearoa and on Māori outcomes. Specialist courts have primarily developed in an ad hoc manner without objective oversight. As such, the “actual data on [their] efficacy is underwhelming, inconclusive, or altogether lacking”.354 For example, there has been no review of the specialist court system as a whole – only in singular reviews at irregular intervals. In the context of Māori and specialist courts, the 2019 AODTC quantitative review355 did not look at the relationship between the
350 Toki, above n 193, at 173.
351 At 173.
352 Quince, above n 153, at 279. Quince suggests that given the urban drift of Māori, young Māori may associate the marae with conflict and punishment in undertaking marae justice.
353 As described in Part One, Subheading I(B) The Present Interaction Between Specialist Courts and Tikanga Māori 9.
354 Erin R Collins “The Problem of Problem Solving Courts” (2021) 54 UC Davis L Rev 1573 at 1573 and 1577.
355 Ministry of Justice, above n 51.
court’s tikanga focus and outcomes for Māori. Instead, it grouped all offenders to draw generic conclusions.
This lack of evidence prompts two possible conclusions. The first is that mainstreaming should not be pursued on the basis of insufficient empirical evidence. I believe this would be a lost opportunity. The second conclusion is that mainstreaming should be pursued and adequate data should be available. The lack of data in the Aotearoa context for the efficacy of specialist courts for Māori does not mean the outcomes are not possible, but perhaps nobody has undertaken the research. The qualitative analysis undertaken on the AODTC highlights a link that should be explored.356 Any successful mainstreaming initiative must generate adequate documentation and data to ensure accountability and transparency. The Crown’s obligation under the Treaty to keep adequate records in compliance with its duty of good faith supports this.357 A mainstreaming initiative should be pursued but may not be successful in the long term without sufficient data and reviews.
V Constitutional Limitations
Aotearoa’s constitutional arrangements may limit the success of mainstreaming. Many academics contend that meaningful change is impossible for Māori within the present Pākehā legal system and Constitution.358 The breadth of this debate is extensive and not the focus of this dissertation. However, I will provide a brief overview of the major arguments for completeness.
Many believe that integrating Māori concepts into the mainstream Pākehā legal system cannot improve the position of Māori. Moana Jackson contends that “justice for Māori should not be seen as grafting of Māori processes on a system that retains ultimate control, even if well intentioned”.359 Juan Tauri has labelled these initiatives as “superficial” in comparison to “more substantive, long-term solutions that work in unison with the principles of the Treaty of
356 Ministry of Justice, above n 34.
357 Waitangi Tribunal Haumaru: The Covid-19 Priority Report (WAI 2575, 2021) at 59.
358 See generally Annette Sykes "The myth of Tikanga in the Pākehā Law" (Nin Thomas Memorial Lecture 2020, 5 December 2020) <cdn.auckland.ac.nz>; Tauri, above n 187, at 42; Stowers, above n 60, at ii.
359 Stowers, above n 60, at xvi, citing Moana Jackson’s quotation from Juan Tauri "Indigenous perspectives and experience: Māori and the criminal justice system" in T Bradley and R Walters (eds) Introduction to Criminological Thought (Pearson Education, Auckland, 2005) 29.
Waitangi”.360 Tauri suggests the State-centred forum and appearance of cultural sensitivity to placate Māori in the absence of any actual change is a modern form of colonisation.361 These arguments inform suggestions of a complete constitutional overhaul to better serve Māori interests.362
I argue that incremental change in the absence of a major constitutional overhaul (which seems unlikely to occur soon) will benefit Māori. Therapeutic jurisprudence allows an unprecedented level of tikanga incorporation within the present constitutional framework. The positive outcomes I have discussed are better than nothing in the short term.
Mainstreaming may be limited by the District Court’s influence within the Constitution. The judiciary is one cog in a larger social and legal machine that upholds colonial law and norms. The District Court is the lowest level court within that. Its ability to create meaningful change without the support of Aotearoa’s appellate courts may be limited. However, I believe the District Court is the best place to start as the “coal face” of Aotearoa’s justice system.
360 Tauri, above n 187, at 42.
361 At 41.
362 For example, the suggestions of the Matike Mai Aotearoa working group who proposed six constitutional models capable of upholding Māori authority and sovereignty. Each model had a different focus on dividing decision making between a Māori tino rangatiratanga sphere and Crown kāwanatanga sphere and joint relational sphere. See generally He Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike Mai Aotearoa—The Independent Working Group on Constitutional Transformation (Matike Mai Aotearoa, January 2016).
Conclusion
Drastic action must be taken to address the disparities between Māori and Pākehā in Aotearoa’s criminal justice system. I have established that mainstreaming specialist court best practices could improve the position of Māori. Mainstreaming may result in qualitative outcomes for Māori, including heightened procedural fairness, improved mental and physical health and strengthened taha Māori and whānau connections.363 There is evidence that improving these factors can incite behavioural change.364 Reduced recidivism and imprisonment should therefore result to some extent. Less offending could create safer communities.365 The specialist courts’ focus on incorporating tikanga Māori, wrap-around services and more respectful relational judging366 enables these outcomes.
These outcomes may only be possible if mainstreaming is implemented effectively.367 I suggest that this should principally involve judicial policy which integrates therapeutic jurisprudence and tikanga into the District Court. This policy should enable the judicial training and attitudinal shift needed for tikanga Māori to be meaningfully implemented. Depending on how it eventuates, the District Court’s mainstreaming initiative, Te Ao Mārama, may satisfy these criteria. A novel legislative provision should be incorporated into the District Court Act 2016 to ensure Māori interests remain at the forefront of the mainstreaming effort.368 This provision should expressly allow for procedural tikanga incorporation. Doing so will enhance constitutional legitimacy and signpost the Māori interests at stake in the District Court’s operations. Existing provisions which procedurally incorporate tikanga Māori in other legislative schemes should be used to inform how the District Court provision should operate.369 Regardless of how mainstreaming is received, there are powerful arguments for legislating Māori interests into the New Zealand court regulatory framework.
363 Discussed at Part Three: Can Mainstreaming Create Change for Māori? at 28.
364 For the connection between specialist courts and procedural fairness see Atkin-Plunk, above n 267; for a description on the link between procedural fairness and reoffending see Tyler, above n 267 and Burke and Leben, above n 215, at 4. For a description of the reoffending outcomes of present Aotearoa specialist courts, see Part One, Subheading I(B) The Present Interaction Between Specialist Courts and Tikanga Māori at 9.
365 Discussed at Part Three, IID Creating Safer Communities at 44.
366 Specialist courts are described at Part One: An Introduction to Specialist Criminal Courts and Mainstreaming at 7.
367 Discussed at Part Four How Best to Mainstream at 47.
368 Discussed at Part Four, Subheading II(A) Proposed Legislative Drafting at 50.
369 Discussed at Part Four, Subheading II(B) Lessons from Existing Legislation at 51.
There are matters the Ministry of Justice must be aware of in mainstreaming. The lack of data on the specialist courts thus far and how they benefit Māori is concerning.370 The Ministry must, therefore, periodically review and report any outcomes. It is unacceptable that no review or documentation has been published two years into the Te Ao Mārama model. Reporting is necessary for transparency, improvement and fostering Māori confidence in the system. How exactly the goals and outcomes of mainstreaming should be measured is a matter for further inquiry. The Ministry must sufficiently resource the initiative to ensure adequate training and external wrap-around services.371 The Ministry should ensure that Māori remain at the vanguard of designing and implementing a mainstreaming initiative. The Treaty of Waitangi requires the Ministry to meet these obligations as a good faith partner. A Waitangi Tribunal inquiry may result if the Crown insufficiently prioritises Māori interests.372
There is a question mark around whether the judiciary owes duties to Māori under the Treaty. Implementing the legislative provision I recommend could mitigate some of this uncertainty by articulating the bounds of the judiciary’s involvement with tikanga. However, the judiciary’s role under the Treaty must be articulated. New Zealand’s potential transition from a realm to a republic could provide an opportunity to redefine this role. Following this line of inquiry, this dissertation raises questions about the judiciary’s role in addressing the position of Māori in the justice system.
How Te Ao Mārama progresses will provide insight into the benefits and obstacles of mainstreaming. The efforts of the judiciary and Ministry invoke optimism that the position of Māori in the criminal justice system can be improved. There is every reason to continue infusing respect and rehabilitation into the District Court.
370 Discussed at Part Five, Subheading IV Lack of Historical Data on Efficacy for Māori at 59.
371 Discussed at Part Five, Subheading I Insufficient Resources at 56.
372 Discussed at Part Two, Subheading II The Crown’s Obligations under te Tiriti o Waitangi/the Treaty of Waitangi at 21.
Appendix A: Glossary of Māori Terms
aroha love, compassion, empathy
atawhai kindness, generosity
hapū kinship group, subtribe
hara harm, wrong, hurt, infringement
hauora health
hinengaro mind, thought, intellect, consciousness
hui meeting
iwi Māori tribes
kanohi face
karakia prayer, ritual chants
kaumātua elders
kaupapa topic, purpose
kawa customs, protocol
kāwanatanga governorship, dominion, authority
kooti court
kōrero conversation, discussion, to speak
mana status, prestige, authority
mana tangata mana of the people
manaakitanga hospitality, kindness, generosity
manawanui courage
māramatanga wisdom
mārie serenity
mauri life force
mihi whakatau official welcome
ora to be alive, to be healed/balanced
Pākehā a New Zealand citizen of European descent
pepeha tribal saying, formalised recitation
Pou Oranga healing post, role in Alcohol and other Drug Court
rangatahi youth
rangatira chief, leader
rangatiratanga sovereignty, political responsibilities
rohe area
taha Māori Māori identity
tamariki children
tangata people
taonga sacred objects, treasures
tapu sacred, prohibited
te ao kohatu traditional Māori society
te ao Māori the Māori world
Te Ao Mārama the enlightened world, District Court mainstreaming policy te ira tangata the essence of life
te reo Māori Māori language
Te Tiriti o Waitangi the Treaty of Waitangi
tika to be correct, right, true, fair
tikanga Māori correct procedure, Māori customary law
tinana body, physical self, real
tino rangatiratanga self-determination, complete sovereignty, autonomy tohunga expert, skilled person
utu balance, reciprocity, consequence
wairua spirituality
whaikōrero speech making
whakapapa genealogy
whakatatū agreement, settlement
whānau family, extended family
whanaungatanga relation, kinship, sense of family connection whenua land
whiriwhiria-ropua group conversation
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C International Instruments
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E Journal Articles
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Manuhuia Barcham “The challenge of urban Māori: reconciling conceptions of indigeneity and social change” (1998) 39(3) Asia Pac Viewp 303.
Joanne Baxter and others “Ethnic comparisons of the 12 month prevalence of mental disorders and treatment contact in Te Rau Hinengaro: The New Zealand Mental Health Survey” (2006) 40 Aust NZ J Psychiatry 905.
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Lisa Schultz Bressman “Procedures as Politics in Adminsitrative Law” (2007) 107(8) Colum L Rev 1749.
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Kevin Burke and Steven Leben “Procedural Fairness: A Key Ingredient in Public Satisfaction” (2007) 44 Court Review: The Journal of the American Judges Association 4.
Marcelle Burns "Towards growing Indigenous culturally competent legal professionals in Australia" (2013) 12(1) The IEJCP 226.
Wing Hong Chui and Kevin Kowk-Yin Cheng “Perceptions of Fairness and Satisfaction in Lawyer-Client Interactions Among Young Offenders in Hong Kong” (2017) 11(2) J Mix Methods Res 266.
Erin R Collins “The Problem of Problem Solving Courts” (2021) 54 UC Davis L Rev 1573.
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Katherin Doolin and Fleur Te Aho "The Alcohol and Other Drug Treatment Courts - Te Whare Whakapiki Wairua - in Aotearoa" [2018] NZLJ 334.
Terri Farrelly and Bronwyn Lumby “A Best Practice Approach to Cultural Competence Training” (2009) 33(5) Aborig Isl Health Work J 14.
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Ashley Forsyth “The Effects of Mass Incarceration on Individuals and Communities” (2019) 4 University of Washington Bothell The CROW 21.
Shaun Goldfinch “Judicial Independence and the Administration of the Courts in New Zealand” (1993) 45(2) Polit Sci 153.
Joanna Hess "Addressing the Overrepresentation of Maori in New Zealand's Criminal Justice System at the Sentencing Stage: How Australia can Provide a Model for Change" (2011) 20(1) Pac Rim L & Poly J 179.
Jeffery G Hewitt “Indigenous Restorative Justice: Approaches, Meaning & Possibility” (2016) 67 UNBLJ 313.
Morris B Hoffman “Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous” (2002) 29(5) Fordham Urb Law LJ 2063.
Rosemary Hunter, Sharyn Roach Anleu and Kathy Mack “Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches” (2016) 12(3) Int JLC 337.
Emma Jones and Anna Kawalek “Dissolving the stiff upper lip: Opportunities and challenges for the mainstreaming of therapeutic jurisprudence in the United Kingdom” (2019) 63 Int J Law Psychiatry 76.
Michael King "What can Mainstream Courts Learn from Problem-Solving Courts?" (2007) 32 Alt LJ 91.
Olivia Klinkum “Taking New Zealand’s Specialist Criminal Courts ‘To Scale’ for Better Criminal Justice Outcomes” [2019] NZCLR 1.
Ann-Claire Larsen and Peter Milnes “A Cautionary Note on Therapeutic Jurisprudence for Aboriginal Offenders” (2011) 18 E LAW 1.
Jeff Latimer, Craig Dowden and Danielle Muise “The Effectiveness of Restorative Justice Practices: A Meta-Analysis” (2005) 85(2) Prison J 127.
Alex Latu and Albany Lucas “Discretion in the New Zealand Criminal Justice System: The Position of Māori and Pacific Islanders” (2008) 12(1) J South Pac Law 84.
Keri Lawson-Te Aho and others “A principles framework for taking action on Māori/Indigenous Homeless in Aotearoa/New Zealand” (2019) 8 SSM - Population Health 1.
A Leo Levin and Anthony G Amsterdam “Legislative Control over Judicial Rule-Making: A Problem in Constitutional Revision” (1958) 107 U Pa L Rev 1.
Paul J Magnarella “Justice in a Culturally Pluralistic Society: The Cultural Defense on Trial” (1991) 19(3) J Ethn Stud 65.
Elena Marchetti and Kate Daly “Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model” [2007] SydLawRw 17; (2007) 29(3) Syd LR 415.
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Sam McMullan "Maori Self-Determination and the Pakeha Criminal Justice Process: the Missing Link" (2011) 10 Indigenous LJ 73.
Tamar M Meekins “Risky Business: Criminal Speciality Courts and the Ethical Obligations of the Zealous Criminal Defender” (2007) 12 Berkeley J Crim L 75.
R Daniel Okonkwo and Dylan Nicole de Kervor “There are Two Sides to Every Story: Collaboration Between Advocates and Defenders in Achieving Systematic Juvenile Justice Reform” (2012) 15(3) University of Pennsylvania Journal of Law and Social Change 436.
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Sarah Mikva Pfander “Evaluating New Zealand’s restorative promise: the impact of legislative design on the practice of restorative justice” (2020) 15(1) Kōtuitui 170.
E Raaijmakers, J W de Keijser, P Nieuwbeerta and A J E Dirkzwager “Criminal defendants satisfaction with lawyers: perceptions of procedural fairness and effort of the lawyer” (2015) 21(2) P C & L 186.
Saskia Righarts and Mark Henaghan "Public perceptions of the New Zealand Court System: An Empirical Approach to Law Reform" [2010] OtaLawRw 6; (2010) 12 Otago LR 329.
Julian V Roberts and Anthony N Doob “News Media Influences on Public Views of Sentencing” (1990) 14(5) L & Hum Behav 451.
David B Rottman “Does Effective Therapeutic Jurisprudence Require Specialized Courts (and Do Specialized Courts Imply Specialist Judges)?” (2000) 37 Court Review: The Journal of the American Judges Association 22.
Tania Singh “Over-representation of Indigenous People in the Criminal Justice System” [2020] NZLJ 405.
Nigel Stobbs “Therapeutic Jurisprudence and Due Process – Consistent in Principle and Practice” (2017) 26 JJA 1.
Zoe Stowers “Can Te Whare Whakapiki Wairua (The Alcohol and Other Drug Treatment Court) Lift our Suffering Whānau?” (2021) 8 Te Tai Haruru: Journal of Māori and Indigenous Issues i.
Juan Tauri “An Indigenous Commentary on the Globalisation of Restorative Justice” (2014) 12(2) Br J Community Justice 35.
Juan Tauri “Exploring Recent Innovations in New Zealand’s Criminal Justice System: Empowering Māori of Biculturising the State?” (1999) 32(2) Australian & New Zealand Journal of Criminology 153.
Katey Thom and Stella Black "Nga whenu raranga/weaving strands in the Alcohol and Other Drug Treatment Court of Aotearoa / New Zealand" (2018) 25 JLM 727.
Valmaine Toki "Lessons from the Navajo Tribal Courts – Tikanga Māori as Common Law?" (2018) 28 NZULR 197.
Valmaine Toki “Seeking Access to Justice for Indigenous Peoples” (2017) 15 YBNZ Juris 25.
Valmaine Toki “Therapeutic jurisprudence and mental health courts for Māori” (2010) 33 Int J Law Psychiatry 440.
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Michael D Trood, Benjamin L Spivak and James R P Ogloff “The effects of judicial supervision on recidivism of offenders in Australia and New Zealand: a systematic review and meta-analysis” (2021) 0 PPL 1.
John Walker “Taking lessons from the Rangatahi Courts” (2018) 2 LawNews 1.
Penelope Weller “Mainstreaming TJ in Australia: Challenges and Opportunities” (2018) 3 International Journal of Therapeutic Jurisprudence 81.
David B Wexler "Applying the law therapeutically" (1996) 5 Appl Prev Psychol 179.
David B Wexler “Reflections on the Scope of Therapeutic Jurisprudence” (1995) 1 PPL 220.
David Wexler “Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer” (2005) 17 St Thomas LR 743.
Christian Whata "Lecture Series Celebrating the 25th Anniversary of Te Piringa - Faculty of Law" [2018] WkoLawRw 3; (2018) 26 Wai L Rev 24.
Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1.
Bruce J Winick “Therapeutic Jurisprudence and Problem Solving Courts” (2003) 30 Fordham Urb LJ 1055.
Bruce J Winick and David B Wexler “The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic” (2006) 13 Clin L Rev 605.
David C Yamada “Therapeutic Jurisprudence: Foundations, Expansion, and Assessment” (2020) 75 U Miami L Rev 660.
F Papers and Reports
Allen + Clarke Evaluation of Family Violence Courts (Allen + Clarke, Final Report, 5 March 2021).
James Barnett, Marianne Burt and Naveneeth Nair Snapshot of the Profession 2021
(LawTalk, 2021).
Lorana Bartels Indigenous-specific court initiatives to support Indigenous defendants, victims and witnesses (Indigenous Justice Clearinghouse, Brief, April 2015).
Alison Chetwin, Tony Waldegrace and Kiri Simonsen Speaking About Cultural Background at Sentencing: Section 16 of the Criminal Justice Act 1985 (Ministry of Justice, 2000).
Chief Victims Advisor Te Tangi o te Manawanui (Te Uepū Hāpai I te Ora - The Safe and Effective Justice Advisory Group, December 2019).
Cristina Dallara and Antoine Vauchez Courts, Social Changes and Judicial Independence
(Global Governance Programme, Policy Brief, June 2012).
Geoffrey Hall Sentencing Reforms in Context(Lexis Nexis NZ Ltd, 2007).
Human Rights Commission A fair go for all? Rite tahi tātou katoa? Addressing Structural Discrimination in Public Services (Human Rights Commission, Discussion Paper, July 2012).
Independent Review Panel The Regulation of Lawyers and Legal Services in Aotearoa New Zealand: Independent Review (New Zealand Law Society, Discussion Document, June 2022).
Moana Jackson The Māori and the Criminal Justice System, A New Perspective: He Whaipaanga Hou Part I (Department of Justice, 1987).
Kaipuke Ltd Evaluation of the Early Outcomes of Nga Kooti Rangatahi (Ministry of Justice, December 2012).
Law Commission The Second Review of the Evidence Act 2006 (Law Commission, Report 142, February 2019).
Litmus Qualitative components of the outcomes evaluation of the Alcohol and other Drug Treatment Court (Ministry of Health, Final Report, 2019).
Ministry of Justice Alcohol and Other Drug Treatment Court cost-benefit analysis (Ministry of Justice, June 2019).
Ministry of Justice Alcohol and Other Drug Treatment Court Outcomes Evaluation 2018-19
(Ministry of Justice, Summary Evaluation Report, June 2019).
Ministry of Justice Alcohol and Other Drug Treatment Court quantitative outcomes 2018-19 (Ministry of Justice, Final Report, June 2019).
New Zealand Law Society Access to Justice: Stocktake of initiatives (New Zealand Law Society, Research Report, December 2020).
Jacinta Ruru, Metiria Turei, Carwyn Jones and Khylee Quince Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase Two: Consultation 2021 (Michael and Suzanne Borrin Foundation, Issues Paper, 2021).
Te Puni Kōkiri Understanding Family Violence: Māori in New Zealand (Te Puni Kōkori, Infographic, 2017).
Te Uepū Hāpai i te Ora/the Safe and Effective Justice Advisory Group He Waka Roimata: Transforming Our Criminal Justice System (Hāpaitia te Oranga Tangata/Safe and Effective Justice, First Report, 9 June 2019).
Te Uepū Hāpai I te Ora/Safe and Effective Justice Advisory Group Ināia Tonu Nei: Hui Māori Report (Hāpaitia te Oranga Tangata/Safe and Effective Justice, 5 April 2019).
Te Uepū Hāpai I te Ora/the Safe and Effective Justice Advisory Group Turuki!Turuki! Move together: transforming our criminal justice system (Hāpaitia te Oranga Tangata/Safe and Effective Justice, 12 December 2019).
Katey Thom and Stella Black Ngā whenu raranga/Weaving strands: 3. The roles of Te Whare Whakapiki Wairua/The Alcohol and Other Drug Treatment Court team (University of Auckland, 2017).
David B Wexler Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law (The University of Arizona, Arizona Legal Studies, Discussion Paper 15-10, February 2014).
David B Wexler The International and Interdisciplinary Project to Mainstream Therapeutic Jurisprudence (TJ) in Criminal Courts: An Update, a Law School Component, and an Invitation (The University of Arizona, Arizona Legal Studies, Discussion Paper 14-04, March 2014).
David Williams Mauritanga Māori and Taonga: The Nature and Extent of Treaty Rights Held by Iwi and Hapū in Indigenous Flora and Fauna, Cultural Heritage Objects, Valued Traditional Knowledge (Waitangi Tribunal Publication, Report for WAI 262, 2001).
Alex Woodley A Report on the Progress of Te Kooti o Timatanga Hou - The Court of New Beginnings (Auckland Homeless Steering Group, 25 September 2012).
Restorative Justice: Evidence Brief (Government of New Zealand, April 2016).
He Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike Mai Aotearoa—The Independent Working Group on Constitutional Transformation (Matike Mai Aotearoa, January 2016).
United Nations Committee on the Elimination of Racial Discrimination Concluding Observations on the Eighteenth to the Twentieth Periodic Reports of New Zealand, Adopted by the Committee at its Eighty-Second Session (11 February – 1 March 2013) CERD/C/NZL/CO/18–20 (17 April 2013).
United Nations Human Rights Council Report of the Working Group on Arbitrary Detention, Addendum: Mission to New Zealand A/HRC/30/36/Add.2 (6 July 2015).
Waitangi Tribunal Haumaru: The Covid-19 Priority Report (WAI 2575, 2021).
Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (WAI 2575, 2019).
Waitangi Tribunal Māori Electoral Option Report (WAI 413, 1994). Waitangi Tribunal Te Whānau o Waipareira Report (WAI 414, 1998). Waitangi Tribunal The Ngāi Tahu Report 1991 (WAI 27, 1991).
Waitangi Tribunal The Reo Māori Report (WAI 11, 1986). Waitangi Tribunal The Te Roroa Report (WAI 38, 1991).
Waitangi Tribunal Tū Mai Te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017).
G Internet Resources
Kiritapu Allan "Government action to tackle delays in Family Court" (5 July 2022) New Zealand Government <beehive.govt.nz>.
Johnny Blades “Parliament doubles down on serious crime” (10 August 2022) RNZ
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Chester Borrows “’Tough on crime’ rhetoric is cheap, easy and terrifyingly effective” (25 November 2019) The Spinoff <thespinoff.co.nz>.
Derek Cheng "Te Ao Mārama: New justice approach in district courts, but will Budget 2022's $47.4m make a difference?" (4 June 2022) NZ Herald <nzherald.co.nz>.
Glen Conway "Prison course praised" (28 March 2008) Otago Daily Times <odt.co.nz>.
Department of Corrections "Prison facts and statistics - March 2022" (March 2022) Department of Corrections <corrections.govt.nz>.
Department of Corrections “Our place in the justice sector” New Zealand Government
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Matiu Dickson “Judges Doing Kaumatua’s Job in Youth Courts” (13 October 2011) Radio NZ <radionz.co.nz>.
The District Court of New Zealand “New Judges Bring Extra Diversity” (2020) The District Court of New Zealand <districtcourts.govt.nz>.
The District Court of New Zealand “Statistics 2021” (2021) Reports, Publications & Statistics <districtcourts.govt.nz>.
The District Court of New Zealand "Home" <districtcourts.govt.nz>.
Jan-Marie Doogue “Diversity central to public confidence in the court” (2018) The District Court of New Zealand <districtcourts.govt.nz>.
Bryce Edwards “Labour wants to be tough on crime – and on its causes” (15 July 2022) NZ Herald <nzherald.co.nz>.
Faculty of Law "Indigenising the New Zealand law degree" University of Otago
<otago.ac.nz>.
David Fisher “The High Court judge’s challenge: Show me the evidence long sentences put people off committing crime” (28 August 2018) NZ Herald <nzherald.co.nz>.
Tumamao Harawira "Tikanga Māori to be taught in law degree courses" (25 March 2022) Te Ao Māori News <teaomaori.news>.
Harvard University “Olivia Klinkum” (2021) The Frank Knox Memorial Fellowships
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Phillip A Joseph and Thomas Joseph "Judicial System - Judicial Independence" (2012) Te Ara the Encyclopedia of New Zealand <teara.govt.nz>.
Māori Law Review “Our People” Māori Law Review <maorilawreview.co.nz>.
Ministry of Justice "Convictions and Sentencing Statistics" (17 August 2018) Safe and Effective Justice <safeandeffectivejustice.govt.nz>.
Ministry of Justice "Budget 2022 Ministry of Justice" (2022) Ministry of Justice
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Ministry of Justice “New Zealand’s constitutional system” Ministry of Justice
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Ministry of Justice “About the Te Ao Mārama – Enhancing Justice for All initiative” The District Court of New Zealand <districtcourts.govt.nz>.
Ministry of Justice “Alcohol and Other Drug Treatment Court” Ministry of Justice
<justice.govt.nz>.
Ministry of Justice “Key Initiatives” Ministry of Justice <justice.govt.nz>.
Ministry of Justice "Specialist courts" (8 December 2021) Ministry of Justice
<justice.govt.nz>.
Ministry of Justice “Who we work with” Ministry of Justice <justice.govt.nz>. Ministry of Justice “Data tables” (2022) Research and Data <justice.govt.nz> . Ministry of Justice “Hāpaitia te Oranga Tangata” Ministry of Justice <justice.govt.nz>.
New Zealand Parliament “How a bill becomes law” (2016) New Zealand Parliament
<parliament.nz>.
Oxford Learner’s Dictionaries “justice” (2022) Oxford University Press
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David Parker “Three District Court Judges Appointed” (25 February 2021) New Zealand Government <beehive.govt.nz>.
Sandy Reily "Te reo Māori proficiency and support continues to grow" (5 July 2022) Stats NZ <stats.govt.nz>.
Stats NZ "Māori population estimates: At 30 June 2021" (16 November 2021) Stats NZ
<stats.govt.nz>.
Stats NZ “Ethnic group (detailed total response – level 3) by age and sex, for the census usually resident population count, 2006, 2013 and 2018 Censuses (RC, TA, SA2, DHB)” Stats NZ <nzdotstat.stats.govt.nz>.
Jacinta Syme “Kaitāia District Court next to adopt the ‘Te Ao Mārama – Enlightened Justice for All’ initiative” (13 July 2022) The District Court of New Zealand
<districtcourts.govt.nz>.
Heemi Taumaunu "Gisborne District Court next in line for Te Ao Mārama model" (24 May 2021) The District Court of New Zealand <districtcourts.govt.nz>.
Te Kura Kaiwhakawā Institute of Judicial Studies “Our Work” Te Kāwanatanga o Aotearoa New Zealand Government <tkk.justice.govt.nz>.
The University of Waikato “Professor Valmaine Toki” <waikato.ac.nz>.
Waitangi Tribunal "Waitangi Tribunal releases report into disproportionate reoffending rate" Justice.govt.nz <waitangitribunal.govt.nz>.
Mike White “Diversity badly lacking among New Zealand’s judges” (4 October 2020) Stuff NZ <www.stuff.co.nz>.
Kim Workman "Maori Over-representation in the Criminal Justice System - Does Structural Discrimination Have Anything to Do with it?" (8 November 2011) Rethinking Crime and Punishment <rethinking.org.nz>.
“Announcements” Ngā Kōti o Aotearoa/Courts of New Zealand <courtsofnz.govt.nz> . “Protocols” Ngā Kōti o Aotearoa/Courts of New Zealand <courtsofnz.govt.nz>.
“Khylee Quince Profile” Auckland University of Technology <academics.aut.ac.nz>. LexisNexis “Rule of Law” LexisNexis New Zealand <lexisnexis.co.nz>.
“Māori Dominate in New Appointment of District Court Judges” (22 January 2020) RNZ
<rnz.co.nz>.
H Other Materials
Pauline Spencer "To dream the impossible dream? Therapeutic jurisprudence in mainstream courts" (International Conference on Law & Society, Magistrates' Court of Victoria, 2012). Annette Sykes "The myth of Tikanga in the Pākehā Law" (Nin Thomas Memorial Lecture 2020, 5 December 2020) <cdn.auckland.ac.nz>.
Heemi Taumaunu, Chief Judge of the District Court “Calls for transformative change and the District Court response” (Norris Ward McKinnon Annual Lecture 2020, University of Waikato, 11 November 2020) <districtcourts.govt.nz>.
Joseph Williams, Justice of the Supreme Court of New Zealand “Can we trust tikanga?” (NZLS-CLE Trust Conference, 2021).
Helen Winkelmann, Chief Justice of New Zealand "Renovating the House of the Law (Keynote Speech to Te Hūnga Rōia Māori o Aotearoa (Māori Law Society), 29 August 2019)
<courtsofnz.govt.nz>.
Helen Winkelmann, Chief Justice of New Zealand "What Right Do We Have? Securing Judicial Legitimacy in Changing Times" (The Dame Silvia Cartwright Address 2019, 17 October 2019) <courtsofnz.govt.nz>.
Matt Conway, Luke Hinchey, Briar Gordon, Duncan Laing, Mike Wakefield and James Winchester (eds) Resource Management (online looseleaf ed, Thomson Reuters).
Interview with Heemi Taumaunu, Chief Judge of the District Court (Tiana Epati, Te Ao Mārama coming into the light, LawTalk Issue 946, 25 June 2021).
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