There are unlikely to be any surprises in the 53rd Parliament when it comes to justice reform. At least if the manifesto commitments and ministerial appointments are anything to go by.

The appointment of Kris Faafoi to the justice portfolio was not predicted but signalled the Prime Minister was after a safe pair of hands. Faafoi is respected across the House. And other than a blip earlier this year where he promised preferential treatment on an immigration matter, he has had a clean record.

Much has been made of the fact that the line-up of justice sector Ministers – Kris Faafoi, Kelvin Davis, Poto Williams, Willie Jackson and Aupito William Sio – are all Māori and Pasfika. This has resulted in two key narratives. First, that they will be under increased pressure from within their own communities to address the inequalities in the justice system, and second that they will be best to address it.

However, the likelihood of significant justice reform comes down much more to political context than it does to political intent.

Resourcing

It will be challenging to direct resources to justice reform. The Prime Minister has made it clear she has a Covid Cabinet to tackle a Covid impacted country. Resources will be directed at measures that either protect us from Covid or assist in the recovery. The budget allocation (Vote Justice) for justice has very little to directly offer to either outcome.

Labour’s 2020 Election justice manifesto focuses on a wellbeing approach; addressing factors of criminal offending before they get anywhere near the justice system. This is a continuation of the Bill English social investment approach. For this to work, minimal investment is made in Vote Justice itself and resourcing is redirected to early intervention in health, education and social welfare.

Finance Minister Grant Robertson runs his budgets using multi-agency bids. Ministries must work together to put in joint bids that demonstrates they are taking an across government approach to targeting spending. But the new Justice Sector ministers have only small roles in the portfolios driving the required cross agency bids. And not a lot of political power to drive their budget bids.

For there to be real change, the justice team needed to also have senior portfolios in education, health or Finance. Lifting educational achievement across the community and targeting early mental health initiatives to those most at risk will be required.

Political capital

It is assumed the first majority government under MMP will have the political capital to spend on whatever reform is needed. However, Labour got to a majority by capturing some National voters based on their Covid record. These voters will bring with them their views on law and order.

Labour is not immune to running the ‘tough on crime’ narrative to reflect the views of the people. It was the Prime Minister’s mentor, Helen Clark, who implemented the outcome of the 1999 referendum. This referendum called for a greater emphasis on the needs of victims, and imposing minimum sentences and hard labour for all serious violent offences. The measures taken under the fifth Labour Government directly contradict the approach to justice the current sixth Labour Government is taking. And were a cause of the prison number increases they are now fighting to get under control.

This trade-off between reform and political capital will be highlighted with the repeal of the Three Strikes Law. Former Minister of Justice Andrew Little made no secret of his desire to repeal this law as soon as possible, and that it was NZ First preventing them from doing so.

The repeal is almost certain to go through now but it will be an easy area of attack for the Opposition. It will only take the first case of a person committing an offence who would have otherwise been in prison under Three Strikes Law for voters to demand tougher action on crime. This will put at risk any other law reform the Government wants to do. If it wants the repeal to be successful, the Government is going to need to be able to show positive change in the early intervention areas.

New Minister Priorities

The policy priorities of Minister Faafoi are yet to be seen. It is not clear whether he will pursue the same policy agenda of his predecessor and whether he will have the same determination to get them through. Since the March 15 terrorist attack, the Government has been promising to introduce new hate speech laws. They are currently under review and both Andrew Little and Jacinda Ardern strongly advocated for stricter laws prior to the election.

Similarly, new Green Party Minister Marama Davidson has taken the work on sexual and family violence from her predecessor, then Parliamentary Under-Secretary Jan Logie. The Sexual Violence Legislation Bill was stalled in the House prior to election by NZ First. This Bill will change how victims of sexual violence give evidence. NZ First didn’t outright oppose it but raised concerns about the changes to admissibility of evidence. Lawyers in submissions to Select Committee raised concerns about a defendant’s right to a fair trial. It is unclear whether the Government will take this opportunity to reconsider the Bill.

Covid response

The backlog and disruption to the justice sector, particularly in the courts, caused by Covid show little sign of abating. In July, the Government announced $50 million for the COVID-19 Response and Recovery Fund to provide for additional judges, court support, Police prosecution and corrections staff. Inherent in this funding was an assumption that prosecutions for Covid response breaches would also increase the pressure on the courts.

Legislative issues arising from the Covid response are ongoing. The management of commercial leases was never really resolved and there are still issues with the implementation of the Covid response legislation.

Unfinished Business

There are a number of ongoing issues the new Minister will have to deal with. Possible extradition of Kim Dotcom will likely draw public attention after another round in the Courts, although interest in the case is diminished.

The close result on the cannabis referendum means there is unfinished business on drug reform. When the results were released, Andrew Little appeared to close the door on any further action. But the Greens won’t quit this fight and say they will at least push for decriminalisation and no-prosecution policies.

Labour’s election promises in drug reform focused more on what to do with people with drug issues appearing before the courts, including a meth treatment programme and a drug and alcohol court.

The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions will release an interim report in December and a final report before January 2023. The Ministry of Justice is one of eleven agencies supporting this inquiry and it is likely that there will be changes recommended to the justice sector as a result of the inquiry.

The next term

The most significant challenge facing the new justice team will be getting heard. Meaningful justice reform rarely gets the political attention it deserves, and usually only negative attention. This will be so much harder in a Covid world when the policy agenda is much more crowded.

Ministers across the Justice Sector

Minister of Justice: Kris Faafoi
Associate Minister of Justice: Willie Jackson
Associate Minister Justice, and Minister for Courts: Aupito William Sio
Minister of Corrections: Kelvin Davis
Minister of Police: Poto Williams