It is probably not controversial to write that New Zealand’s courts are overcrowded and our corrections facilities overflowing. Duty lawyers are overburdened, and justice staff are overworked. At the same time, legal aid is underfunded and the causes of criminal behaviour remain largely overlooked.

The system is so stretched. It has become so impersonal in its attempts at equality and efficiency, some say, that for many in Aotearoa it represents only a veneer of justice that covers another institution of colonial oppression, a leviathan to battle against rather than contract with.

Mounting pressure on, and dissonance with, the traditional process of dealing with crime and criminals: arrest – prosecution – conviction – incarceration, ultimately institutionalisation, suggests that new systems for achieving justice, outside of the court system, ought to be explored.

A joint initiative between Police and the communities they serve, Community and Iwi/Marae Justice Panels are an innovative attempt to personalise justice, to hold offenders to account in whatever meaningful way will most likely result in positive outcomes for all involved. LawTalk investigates.

Going around the revolving door-jam

New Zealand Police culture has been undergoing a paradigm shift.

Since about 2010, a series of “common sense initiatives” have been introduced under the “Policing Excellence” programme, what Deputy Chief Executive Māori, Superintendent Wally Haumaha says was at the time “the largest strategically significant and operationally relevant change programme undertaken by New Zealand Police”.

These initiatives were designed and implemented to make Police “more effective and more focused on prevention,” Superintendent Haumaha says.

One of those initiatives, “Alternative Resolutions”, was a response to calls from all corners of the justice sector – including Police, the Law Commission and judiciary – “to develop better alternatives to hold offenders to account for less serious offending, without having to use the courts”.

Through the “Alternative Resolutions” process, police officers are encouraged to consider and recognise opportunities for the constructive resolution of low level crime, which might mean engaging offenders with a non-traditional (outside-of-court) process. If an officer believes that formal court procedures are not as likely as other methods to result in a positive outcome for offenders and communities, then a referral may be made to a Justice Panel.

Justice Panels (referring to both the community and iwi-led Justice Panels) are comprised of at least one Police staff member who sits as a panellist and manages the referral process. Remaining panellists are community leaders and volunteers; church leaders, sports coaches, kaumatua, counsellors, social workers, and school teachers.

Individuals are held to account for their actions and are ordered to make reparations but without the stigma and associated consequences of a criminal conviction.

As the panellists at Lower Hutt – the foundational Iwi Justice Panel – said during LawTalk’s visit, anyone and everyone is free to become involved, to have their say, so long as their intention is the restoration of the offending individual and the community around them. It’s not so much the rules by which the panels operate, as who sits on them and what they have to say.

“Alternative Resolutions” are focused on the “formalised use of discretion (in place of charges) to reduce the use of court processes for low-level offending, while ensuring crime is still addressed and victims are supported”.

Police officers can employ any one of three alternative resolutions, if circumstances suggest that is the “best way to resolve offences in order to achieve positive behaviour change”:

• pre-charge warnings;
• written traffic warnings; and
• Community/Iwi/Marae Justice Panels

Currently there are four funded Justice Panels in operation across New Zealand. The first Community Justice Panel pilot was launched in Christchurch in 2010. Over the last year, three trial “Iwi Justice Panels” have served the communities of Manukau, Gisborne and Waiwhetu (Lower Hutt), with funding to June this year. 

Who gets referred?

While the process might differ in each case, depending on the needs of the victim, the community, and not least the offender, Police follow clear criteria in exercising their discretion to select appropriate offenders for Justice Panel referral.

Offenders must be adults (over 17 years), and must intimate guilt/admit the offence. Police’s understanding of the offence must meet evidential sufficiency and the offence must carry a maximum penalty of six months’ imprisonment or less. Family violence and methamphetamine offences are excluded.

If the arresting officer believes that alternate resolution could be considered, and that it is not in the public interest to proceed to a formal charge (at that stage), and if the offence itself or the circumstances of the offence suggest that avoiding court processes is the best way to achieve positive results, then an offender may be referred to a Justice Panel.

To ensure consistency, monthly reports are prepared by police to monitor Panel referrals and to identify opportunities for system enhancements and adjustments, Mrs Wilson Tuala-Fata says.

Police’s evaluation of the pilot Christchurch Community Justice Panel concluded in 2012 that that alternative resolution pathway has potential to reduce prosecutions of low level offences/offenders “and therefore reduce the burden on Courts and the justice system for less serious offences”.

The report found the panel had achieved reasonable offender compliance, demonstrated strong community involvement, reduced re-offending rates of those who went through the process, and, perhaps most importantly, provided the opportunity to address offenders’ underlying behaviour and to support victims’ restoration.

Where to now?

The iwi/Māori-led Panels in Manukau, Gisborne and Waiwhetu were subject to formal evaluation late last year, with reports expected to be finalised by February, and a Justice Sector Fund bid has been made to continue the three trials through 2016/17.

Meanwhile, government agencies are considering the next steps, “in terms of development, implementation and management”, for the existing Panels and, potentially, more. Talk within the communities is that a national rollout, or at least expansion, is imminent.

The Ministry of Justice’s Aphra Green says it’s fantastic to have witnessed such a “groundswell of enthusiasm” for Iwi and Community Justice Panels, which he describes as an “innovative way of empowering individuals and communities to address the causes of crime”.

“These panels are a promising alternative response to low-level offending.

“We know that once people formally enter the criminal justice system it becomes harder to address the multiple factors that contribute to their likelihood of offending.”

However, “it’s important the fundamentals are in place” before any decisions are finalised, she says.

“This includes consideration of the role and fit of panels in the wider criminal justice system.”

Justice Minister Amy Adams shares the enthusiasm.

“Iwi and Community Justice Panels appear to hold real promise for holding people to account, while keeping them out of the formal criminal justice system and putting in place the support they need to avoid future criminal behaviour,” Ms Adams says.

“We know that once people come into the formal justice system it becomes more challenging to address the root causes of their offending and reduce their likelihood of future offending.”

Impressed by the pilot in Christchurch, Ms Adams nevertheless says that no formal decisions have been made to expand the trials nationally as operational issues continue to be refined.

“There will be no new panels established until justice sector leadership have considered any future expansion of panels in terms of their benefits, effectiveness and alignment within the wider justice system.”

Optimism at the coalface

While Government is naturally cautious to ensure consistency of operation and “fit” within the wider system before committing to a national roll out of Justice Panels, those on the ground are encouraged by the growing volume of, and number of voices in, the conversation, and are convinced they’ll soon get the green light to share lessons they’ve learned with new panels in other parts of the country.

Neville Baker is Chairman of Te Rūnanganui o Taranaki Whānui ki te Upoko o Te Ika, which operates the panel at Waiwhetu. His optimism extends far further than the next round of funding.

Long having worked within te ao Māori (the Māori world), Mr Baker considers the Justice Panel to be a long-awaited response to the then-Ministry of Social Development’s Puao-te-ata-tu or Daybreak Report, which identified systemic causes of Māori socio-economic deprivation.

Nearly 30 years ago, that report recommended a new approach to engaging with Māori who had ended up “in the system”, and were unmotivated to break the cycle of hardship and poor decision-making that had led them there.

Proper engagement would require utilisation of people in the community who understood families and whakapapa, and the benefits of talking to people in their own environment, the report noted.

Its conclusions are now tuned into official policies such as Whanau Ora, and they resonate in harmony with the very raison d’être of the Justice Panels.

Funding and national rollout decisions aside, to Atiawa, dawn is finally rising on the Daybreak Report.

Prophecy and personalised justice

To understand how Atiawa’s Justice Panel at Waiwhetu works it’s important to know something about Parihaka, the hallowed resistance that is said to have inspired similar movements by individuals as revered as Mahatma Ghandi a world away in India with its belief in passive protest and tenet “goodwill to all”.

Descendants of those who led the Parihaka resistance remain guided of the hybrid-Christian and Māori values that their ancestors stood for and hoped could thrive in Aotearoa, a land rich enough to sustain both new and traditional ideas. And those values – pivotal to Atiawa – continue to influence Waiwhetu Justice Panel members today.

Kaumatua Te Rira Puketapu and his wife Potiki are truly pillars of their community. Their marriage of 54 years has produced more than 25 grandchildren and it’s without exaggeration that they can claim a familial connection with most of Lower Hutt.

Mr Puketapu, a proud descendant of Parihaka leaders Te Whiti and Tohu, says Atiawa’s tikanga or protocol is followed during panel sessions, just like house rules are followed by guests in a stranger’s home. However, he says it’s not just about being Māori, as anyone is welcome at Waiwhetu and offenders of all nationalities had been through the panel.

Shortly before LawTalk’s visit, a young Samoan woman had been at the centre of panel discussions, with her church minister having led the processes of beginning to understand and learn how to help this woman change her behaviour and contribute to her community.

While many referred are first time offenders and often young adults, the upper age is not restricted either.

“A neutral venue provides mutual advantage,” Mr Puketapu says, comparing the warmth of a panel hearing discussion circle to the formal sterility of most courtrooms.

Despite best efforts, the courts are not neutral but “Eurocentric”, he says. Western justice places great value on ideals like equality and consistency that value the individual, but inherently misses opportunities to engage effectively with communities, particularly Māori communities that traditionally have placed greater significance on family and social connections than the individual.

He tangata, he tangata, he tangata – “it is people”

The Waiwhetu Panel’s Whanau Ora Hata Wilson says panel “sittings” can become “really emotional”. The panel engages with offenders differently, he says, with respect or “manaakitanga” an integral part of the consensus-seeking discussion.

Offenders are invited to talk about their life and circumstances. They may bring support people. The korero/talk starts, and both offender and the panel begin to identify and discuss how to address the causes of behaviour that resulted in the offender’s arrest.

“We work out the best ways for the offender to better themselves,” says Police’s Iwi Liaison Officer Asher Hauwaho.

“It’s about motivating them to want to contribute to the community, using terms they can relate to. For example, maybe they’ve had some experience with team sport like rugby. With help, they can hopefully see how offending against the community is like letting the team down.”

The panel blends traditional hui/discussion structure with a contemporary approach, he says.

It’s the “best of both worlds”.

“A big part of why it works is it’s setting in the community,” Mr Hauwaho says.

“Local knowledge, local connections. There are very few degrees of separation here. Everyone knows everyone.”

The panellists aren’t likely alone in thinking that an “I’m disappointed in you” scowled by an unhappy grandmother will have more effect on a person’s behaviour than an unknown law man’s sentence.

“It’s a matter of working smarter”.

Steering the waka toward restoration

Julie Wilson is the panel’s “navigator” – a role that was carved out in the trial’s early days.

To extend the metaphor, she helps guide the ship that carries an offender on their journey to betterment and community reparation.

Mrs Wilson assists with completion of the “sentence” or sanctions ordered by the panel, which are designed to allow individuals to accept responsibility for their behaviour and address its underlying causes.

This may involve assisting offenders to improve their lives, by leading them to training or education, therapy classes, counselling, or services to combat drug and alcohol abuse. Often, she says, it simply involves a trip together to Work and Income, where the person can learn they’ve long been entitled to support they’ve not been receiving.

Mrs Wilson’s role also often involves teaching offenders about their ancestry/whakapapa and cultural identity. Discovering unknown relatives and whanau connections and learning just a little about their history can lift an offender from a state of hopelessness. It can motivate them to better understand their place within their community, Mrs Wilson says.

“If you find out a person’s family dynamics and their needs – then you can start to make positive changes.”

To Mr Puketapu, the wharenui/building at Waiwhetu and the establishment of a Justice Panel that is outside of the formal and institutionalised Western justice system fulfils the prophecy of Parihaka leaders Te Whiti and Tohu, who he says foresaw the eventual flourishing of Māori under the combined values of Christ and tikanga Māori.

“It’s about goodwill. Quite often, the offender needs compassion, too,” he says.

For Mr Puketapu, Justice Panels are more than a good idea; they are a vision realised.

A prophecy fulfilled.

MUMA’s Marae Community Justice Panel

The Manukau Urban Māori Authority (MUMA) started delivering Enhanced Alternative Resolution Iwi Panels in September of 2014. While the current funding contract is set to expire in June, MUMA leaders say they are confident the Justice Panel service will continue into the future.

Justice Sector Services Manager Irirangi Mako says MUMA has held over 180 panel hearings at Ngā Whare Waatea Marae and Papakura Marae.

“We have dealt with a range of low-level offences, ranging from threatening behaviour, possession of stolen goods, driving offences (ie, driving while disqualified, etc), and trespassing,” she says.

“Renamed ‘Marae Community Justice Panel’ by MUMA, the name promotes a shared responsibility with our community to take ownership of these matters, and establishes our urban marae as a place for everyone – not just Māori.

“While the service primarily targets Māori adults 17 years plus and their whanau, the participants referred reflect the multicultural South Auckland community.”

Ms Mako says outcomes and agreements from panel hearings are unique to each offender, but the panel follows a robust and identical process each time.

“Some of the agreements made with offenders include volunteering at local marae or MUMA food bank, a formal apology to the victim or agreeing to make repayments for theft or damage.

“Agreements can also include working with other agencies or services that support positive change such as counselling and anger management courses,” she says.

“We acknowledge the impact that crime has on the community, and that negative behaviours have an impact on more than just the individual victim and offender.

“The unique experience and opportunity we provide is our familiarity with the Whanau Ora model of working – developing whanau plans that address long-term aspirations and solutions for the whole whanau, not just meeting the short-term needs of the offender.”