At the end of May the Chief District Court Judge Heemi Taumaunu, along with the Principal Family Court Judge Jacquelyn Moran and the Principal Youth Court Judge John Walker visited Gisborne District Court to announce the introduction of the Te Ao Mārama model for that court.
Following the announcement in Gisborne, Law Society President Tiana Epati sat down with Judge Taumaunu to understand more about Te Ao Mārama and how the legal profession can support its successful implementation.
Ms Epati: I’ll start by just acknowledging where we are for this interview, Te Poho-o-Rawiri Marae in Tūranga-nui-a-Kiwa. I’d like to ask you to explain the significance of where we are in relation to the kaupapa that we’re going to talk about.
Chief District Court Judge Taumaunu: This is a very special place to be talking to you, as this is the marae where the Rangatahi Court started. Almost to the day 13 years ago we were here celebrating the launch of the Rangatahi Court. The first sitting in the world happened right in this whare.
I think about the many Rangatahi Court sittings that have been held on this marae and more particularly, the kaumatua and kuia who have been involved in supporting the Court. My memories go back to the very early days when we were venturing off into the unknown with the Rangatahi Court. At that stage we weren’t really sure how it would operate and work within the law and today, as I speak, there are 17 Rangatahi Courts around the country that follow the example that was set here at Te Poho-o-Rawiri. It’s a wonderful thing to be here today and to speak to you about Te Ao Mārama.
Ms Epati: When you introduced Te Ao Mārama you described it as being inspired by the concept “mae te po ki tea o marama” meaning “the transition from night to the enlightened world”. You’ve spoken about how it will reflect the needs of modern-day Aotearoa, a multicultural Aotearoa where everyone can seek justice and feel that they are heard and understood. How do you envisage this working in practice? How will the model of Te Ao Mārama benefit all New Zealanders?
Judge Taumaunu: When you think about what Te Ao Mārama represents with this idea of the transition of night to the enlightened world, the first point to make is that it’s the response to the calls for change, and it is important to see the Te Ao Mārama kaupapa within that context.
For the last 40 years or so there have been multiple reports and articles written about the District Court, the Criminal Jurisdiction and Family Jurisdiction of the District Court. Since then, we’ve had the seminal reports that were written by Moana Jackson, He Whaipaanga Hou, and John Rangihau who helped produce “Pūao-te-Ata-tū”. We’ve then had more recent reports, especially from the Chief Victims Advisor, that have all given our Court a very consistent message: that people are coming to our Court and when they’ve left they feel they haven’t been seen, they haven’t been heard and they haven’t been understood. They haven’t been able to fully participate in the proceedings that relate to them, and in short, they believe they haven’t had a fair trial and haven’t been able to receive justice.
And this is not just a message from defendants, this is across the board. This is victims of crime saying the same thing, it is witnesses, parties to proceedings and supporters who believe they haven’t been able to meaningfully participate in the proceedings that relate to them.
So, it’s in this context that Te Ao Mārama has emerged. This idea of a more enlightened world where all people can come to our court to seek justice and be heard, be seen and be understood. A place where they can meaningfully participate in the proceedings that relate to them.
Whilst it’s obviously framed with the traditional Māori narrative about the creation of the world and Te Ao Mārama it’s also important to bear in mind that this model is intended to apply to all New Zealanders, not just Māori. Those calls for transformative change that we are answering have come from across the spectrum of our multicultural society.
Ms Epati: There is no reason why someone who is not Māori can’t benefit from a tikanga approach to justice. When you look at something like the Ellis case, there we have non-Māori whānau who are essentially the beneficiaries of a tikanga approach to resumption of a criminal appeal. That’s an example of the law shifting for the benefit of everybody.
Judge Taumaunu: Correct
Ms Epati: You talk about the model having to work slightly differently in each District Court because it will be developed in partnership with iwi and local communities. Can you tell me more about the engagement you have planned with iwi and local communities and what differences we might see as a result of that engagement?
Judge Taumaunu: What we are intending to do is engage with local iwi in terms of the partnership relationship under the treaty and between the various government agencies that are involved in the justice sector and those iwi who are involved in the local community.
The intention is also to engage fully with the local community service providers that are engaged in providing services to the Court and to ascertain those service providers who currently aren’t providing services to the Court but actually could if the invitation was extended to them. These are some of the changes we can make if we are able to better coordinate the way that the Court reaches out to the community. This is all about making our Court more relevant to the community it serves by bringing the community itself into the Courtroom.
Ms Epati: You talked about mainstreaming some of our specialist Courts and the Rangatahi Court is a good example. What are the best practices of these specialist Courts that Te Ao Mārama will be drawing on?
Judge Taumaunu: It’s probably worth going back a little bit further in time to 1980, because the very first specialist court that adopted solution focused judging was the Family Court. That was followed relatively quickly by the Youth Court, which was established in 1989, so we’ve actually been doing solution focused judging in this country for a long time.
Since 2008 there have been further specialist courts developed like the Rangatahi Courts, Matariki Courts, the Homelessness Court, the Special Circumstance Court, the Alcohol and other Drug Treatment Court for example. However, access to these has been limited to where you live. There is a criticism that needs to be addressed and that is that we are engaging in postcode Justice where the benefits of these courts are only available to limited numbers of people.
That won’t be the case with Te Ao Mārama. It is actually an intentional approach to deliver into the mainstream as much of the best practice as we possibly can from those specialist courts and offer those advantages and benefits to as many people as we possibly can.
What are some of those mainstream best practices that we want to bring under the Te Ao Mārama model? Well, some of them are fairly straightforward. Talking in plain language is one them, recognising that if we start speaking in plain language then people might stop leaving court wondering what just happened to them.
The idea of toning down formalities, to make the experience of coming into court one that is less intimidating and one that helps people engage properly in cases that are actually about them or are affecting them so that the experience is a bit like sitting in this wharenui here. A relatively comfortable one to try to ensure that people are able to present the best version of their evidence or the best version of themselves.
Some other examples of best practice are the solution focused judging approach. And in many ways what we’ve learned in this whare, for example, throughout the course of our 13 years running or operating the Rangatahi Court on this Marae is that the process that we’re engaging in is, for many people, just as important as the outcome. It might be that a person would have received the same type of outcome in the conventional Courthouse but by going through the process in the Rangatahi Court they’re able to leave the Court feeling not only that they had a fair hearing but the outcome itself was just because of the process that was adopted.
That’s leading on to what I was going to say about the best practice that will form quite a major part or Te Ao Mārama which is the idea of solution focused judging. Where people who come to court, and for example plead guilty, will have an opportunity for their risks and needs to be assessed to understand the drivers that brought them to Court. If it’s something that can be addressed, then a plan can be put together to be either monitored by the Court or by a probation officer as part of the sentence. Or it could be monitored in a different way potentially through a community channel.
So that solution focused judging approach is probably one of the key ideas that is going to be brought from the specialist Courts into the mainstream. It hasn’t been done before to my knowledge in the mainstream in any jurisdiction in the world, so it is a world first or a leading approach in the common law countries that are comparable to ours. I’m confident that if it is as successful as we hope it will be that many other countries will be taking note of what’s happening here, as they have done with all the other innovative Courts that we have established here in Aotearoa.
Ms Epati: One part of this is about making the environment and the language relevant to a community or a person who comes into it, but I think the other part as you were saying is about solution focused judging and having good information to make good decisions.
Judge Taumaunu: Correct. So at the end of the day if the process has produced the best information possible to be given to a Judge then a well informed decision can be expected. And that at the end of it all is the essence of what we are trying to achieve, which is fairness for everyone involved in the process.
Ms Epati: Many lawyers have come to me really positive and very hopeful about Te Ao Mārama. You have said that the successful introduction of Te Ao Mārama will require a cultural shift. We’ve already talked about the language – that’s going to be a hard one for us to start dropping the jargon we are so accustomed to using. How else do you think the legal profession can help to ensure that Te Ao Mārama is a success.
Judge Taumaunu: In terms of the legal profession and the role that advocates will play in Te Ao Mārama, if we adopt this cultural shift and start using plain language, chances are that the people who we serve will actually understand what’s going on in court. In turn there will be an improvement in the level of understanding and that could well translate into ensuring that well informed decisions are being made by people when they are pleading to charges. I’m hoping that is one of the key results that occurs here.
That by using plain language, toning down formalities, trying to adopt processes where people are assessed we will identify if there are barriers to their participation, which is very important. For example, it’s important to know whether someone suffers from dyslexia, so if you give them a piece of paper to read you can be confident that they’ll understand it.
In many ways a lot of what we are talking about is not rocket science. It is actually quite straightforward. As far as the profession is concerned, I am not surprised at the support you’re hearing about because when I look back at what happened in 2008 here in Gisborne, it was actually the profession who was heavily involved in that first meeting. It was those lawyers who came to the Court and told me that there was complete job dissatisfaction with the way they had been involved in the system as advocates where they had watched grandfathers, fathers and sons of the same families going through the Family Court system, through the care and protection system, graduating into the Youth Court, graduating then into the District Court and then spending long times in prison.
Te Ao Mārama kaupapa is about trying to do something different to achieve a different result, to bring people to a better place than they are at the moment. So, I welcome the enthusiasm of the profession to support Te Ao Mārama.
Ms Epati: And this is something I’ve talked with you about – access to justice -it’s actually a big issue for the profession in terms of wellbeing because if they see the people they are representing are entering a maze with no exits then that actually affects the wellbeing of the legal profession coming to Court. After all our purpose is primarily to help people.
Judge Taumaunu: And you can see why there is enthusiasm for Te Ao Mārama because part of this design process will be looking at what are the alternative pathways available to people to find a legitimate exit from a system that they find themselves trapped in.
Ms Epati: Why is now the right time for Te Ao Mārama?
Judge Taumaunu: Well, when you think about the Te Ao Mārama concept, it is timeless. It actually goes back, in terms of the traditional Māori narrative, to the beginning of time. Why is now the right time? Well, it’s actually been the right time for a long time. It’s just a matter of being realistic about the fact that it needed alignment between a number of different agencies, it needed alignment within the judiciary and it needed alignment and support within iwi and within local communities. It’s an idea whose time is right now.
Ms Epati: There seems to have been this renewal of interest in learning Te Reo and about concepts of tikanga. In particular I’ve observed the judiciary moving towards ensuring that all judges are educating themselves to understand more about Te Ao Māori; what would you like to see from the legal profession in terms of upskilling themselves?
Judge Taumaunu: It goes back to the whole idea that there needs to be a cultural shift in thinking that then needs to be expressed by action. From the profession’s point of view, I would encourage the profession to remember how important it is to be able to pronounce names properly. How important it is to be able to introduce yourself and reflect both founding cultures of this country and in doing so also potentially to be able to reflect the multicultural nature, the multilingual nature of modern-day Aotearoa New Zealand.
Ms Epati: I’m glad you brought up the point about being able to pronounce people’s names and at the very least, have the minimum Te Reo so you can do that. I remember Moana Jackson talking about how it’s just common human decency to be able to pronounce a person’s name. That’s the minimum level which one would expect from a person in terms of mutual respect.
Judge Taumaunu: If we are intentionally engaging with people to try to ensure that they do understand what’s happening, that they can be heard, that they can participate then we shouldn’t be creating barriers unintentionally by mispronouncing names.
The profession needs, I think, to reflect carefully on what it is that the profession wants to see itself doing in 2040, which is a very good goal, because that’s not far away. That’s the 200th anniversary of the Treaty of Waitangi.
Ms Epati: What are the challenges going to be in mainstreaming this approach?
Judge Taumaunu: The first challenge is going to be in our minds collectively, to really embrace this challenge in a positive way and not see it negatively. The reality is that if we don’t change then in 2040 nothing would have changed. If we just think of this call to action, 200 years from the signing of the Treaty of Waitangi what is it that we want to be proud of about our justice system and about our Court. Let’s think carefully about what each of us individually can contribute and then, collectively, I think we can be very proud of ourselves at the end of all of this when we come to that particular date on 6 February 2040.
Ms Epati: Sir Joe Williams talks about how it has to start with the individual and decolonizing our minds first, and I know you put it in a much more positive way, but that is a big part of it, isn’t it?
Judge Taumaunu: There’s two ways to look at this, and I prefer this way. We are looking at the unfulfilled potential to remedy the wrongs of the past. That’s my preferred way of looking at Te Ao Mārama. And if you look at where Te Ao Mārama began in terms of the personal narrative where Te Maihāroa in 1877 left Arowhenua in search of the promised land which was called Te Ao Mārama in those days. I prefer this idea of the unfulfilled potential that lies within our country Aotearoa New Zealand.
Ms Epati: What does success look like?
Judge Taumaunu: Success looks like people leaving our Court believing that they’ve had a fair hearing, confident that they just received justice. That’s what success looks like in terms of Te Ao Mārama and if all people are able to leave Court feeling that way, then we have achieved what we are setting out to achieve.
Ms Epati: If people come to Court and they feel that they have been seen, heard, understood, engaged in the process it is more likely that they’ll not return.
Judge Taumaunu: Not only is it more likely they’ll not return, I’m very confident it is more likely that the community we serve will see the Court as relevant and that the respect for the rule of law within the communities we serve is enhanced by the way that we conduct ourselves.
Ms Epati: Kia ora Judge. Thank you for being a true visionary leader. You are very much seen as a merchant of hope, so I like the idea that we all have through this the opportunity to be merchants of hope.