New Zealand Law Society - We can learn from traditional Māori practices

We can learn from traditional Māori practices

One way New Zealand can enhance its justice system is to explore what we can learn from traditional Māori practices, says Sir Kim Workman.

Frank Neill

Following many years of advocating for criminal justice reform, Sir Kim was appointed a Knight Companion of the New Zealand Order of Merit in the 2019 New Year’s Honours. His knighthood was awarded for “services to prisoner welfare and the justice sector”.

“We need the space to develop a Kaupapa Māori Justice system, to exercise our imagination, and envisage what that might look like,” Sir Kim says.

Sir Kim Workman
Sir Kim Workman

“In 1999, an Indian economic philosopher, Amartya Sen, wrote a very influential book, entitled Development as Freedom. In simple terms, he argued that we need to be free to develop, and we need to develop to be free. Development is inconceivable without freedom, just as freedom is inconceivable without development.

“Māori have not been free to develop. Instead they have been constrained by the paternalism of the state.”

If New Zealand is serious about making a difference for Māori within the criminal justice system, “we need to do more than co-opt tikanga Māori principles into cognitive behavioural programmes,” Sir Kim says.

“What we need is an approach which embraces a broader kaupapa; focuses on the inter-generational trauma that exists for most offenders, and which takes them on a journey of healing, restoration and acceptance within the wider community.

“That is the journey that many Māori offenders yearn to take.”

Within traditional Māori justice initiatives, the overall aim of dispute resolution was the restoration of mana, to achieve a balance of all considerations and to achieve a consensus.

It was not an adversarial process.

“When there had been a dispute that had affected the spirit and mauri (life force), the question was how to bring it back into balance. Regardless of what level or who was involved, there is the same fundamental principle, that of ‘whakahoki mauri’ or restoring the balance.

“Apparent here is the notion of ‘healing’,” Sir Kim says.

All this is based, within traditional Māori practices, on involvement of the whole community and on achieving community consensus.

“If justice is anything, it is relational. It is not a detached exercise involving breaches of the law, judgement and punishment. It embraces the whole fabric of social relationships and inter-relationships – individuals, families, communities, nations, economics, politics, religion, gender, race, environment.

“Justice is about us and how we live with one another in nourishing and supporting the individual and social well-being of all people,” Sir Kim says, quoting Ronald W Nikkel, Conversatio Morum, Justice Between Us 7 November 2011.

“If it is not relational, it is not justice.”

“How is it possible to hold an offender accountable for harm done to the victim and the community by the offending; or promote in the offender a sense of responsibility for, and an acknowledgment of, that harm – both of which are legislative purposes of the Sentencing Act – in the absence of quality human encounter?”

The state must not only facilitate quality human encounter in others, but constantly and closely examine its own responses to offenders, victims and whānau.

Mistreatment is nothing new

The 2019 report He Waka Roimata noted that: “Māori are 5.7 times more likely than other New Zealanders to have contact with the Police. From the initial contact, the problem compounds. Māori are more likely to have been handcuffed or pepper sprayed, more likely to be arrested, convicted, sentenced and imprisoned.”

“This is hardly news,” Sir Kim says.

“The 1961 Hunn Report (Hunn, J.K., 1961 Report on the Department of Māori Affairs Wellington, Government Printer) confirmed that Māori were more likely to be imprisoned, sent to borstal or placed on probation, less likely to have court cases dismissed than non-Māori, and more likely to be committed to the Supreme Court [now the High Court] for trial. Most Māori came to court with no idea how to plead or defend themselves.

“About 80% of Māori were not represented by counsel, compared to 60% of Europeans, and about 80 to 85% of Māori pleaded guilty compared to 60% of Europeans” (Butterworth, Graham and Susan, Policing and the Tangata Whenua, 1935 – 85, Number 16, Treaty of Waitangi Research Unit, Rangatiratanga Series, pp 32-33).

“Jack Hunn called a meeting with the police and judiciary, but reached an impasse when the magistrates and probation officers asserted that there was no problem” (Butterworth, pp 30-31).

“Sixty years on, the state continues to acknowledge the problem, but does little to address it,” Sir Kim says.

“As a result, Māori are over-represented in the criminal justice system, both as victims and offenders.” Māori make up 16% of the national population, 37% of victims, and 51% of prisoners.

“One of the challenges anywhere in New Zealand is to persuade the justice system to allow Māori to implement initiatives in their own way, rather than relying on what is happening already.” Sir Kim says.

Effective marae-based initiatives

“The Rangatahi Courts and Te Pae Oranga (iwi community panels) are a good start.”

Both these initiatives are marae-based. Rangitahi Courts are for youth, and Te Pae Oranga are run by iwi providers and Police to address low-level offending.

Sir Kim puts the success of these two initiatives down to a number of factors, including:

  • the elders of the community have some say in what happens to offenders;
  • the offenders are provided with support with decisions made that address their needs; and
  • it avoids young people entering the mainstream criminal justice system.

“The people involved [in the Rangatahi Courts and Te Pae Oranga] don’t see the participants as a danger, but see their potential and develop strategies that provide a transformational experience and the ability to change.”

One of the things Sir Kim would like to see, in order to improve justice outcomes, is much more widespread implementation of the practices used in the Rangatahi Courts and Te Pae Oranga within New Zealand’s court system but with a greater emphasis on iwi and Māori leadership and control.

In his experience, often Māori communities have developed very good health services, because the government invested in the 1990s in having effective Māori health services.

However, the government has not made that same investment in the criminal justice system, Sir Kim says.

If it did, he predicts that crime rates would be lower.

Social controls result in low crime rates

He gives as an example people living in the area around Waiwhetu Marae in Lower Hutt. The crime rate in the area has “always been pretty low and that was because the social controls within the community were extensive”.

“The community encourages people to lead a well balanced life.”

In order to not only address the huge imbalance in the imprisonment of Māori in New Zealand, but also to help significantly reduce the crime rate, “we need to provide these opportunities for young people,” Sir Kim says.

Of Ngāti Kahungunu and Rangitāne descent, Sir Kim’s work towards justice reform goes back well over 20 years.

The former policeman, and head of the Prison Service from 1989 to 1993, he was appointed National Director of Prison Fellowship in 2000, retiring from that position in 2008. These three roles gave him three quite different perspectives on the criminal justice system. They also gave him the motivation to begin seeking positive change to the system.

Before being knighted in 2019, Sir Kim was named a Companion of the Queen’s Service Order in 2007. In 2005, Sir Kim and former prisoner Jackie Katounas were the joint recipients of the International Prize for Restorative Justice.

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