Oliver Sutherland recalls his involvement almost fifty years ago with the first ‘home-made’ duty solicitor scheme established in Nelson, including some of the traumatic beginnings of what became the National Duty Solicitor Scheme.
Fifty years after the first ‘home-made’ duty solicitor scheme was established in 1972 in Nelson, I want to recall the traumatic beginnings of what became the National Duty Solicitor Scheme.
At the end of 1969, after four years study overseas including a tumultuous year at the Berkeley campus of the University of California, I took up a position as entomologist with the Department of Scientific and Industrial Research. In no time I was invited by a whānaunga of mine – trade unionist and activist John Hippolite – to become the secretary of the Nelson Māori Committee of which John was chairman.
From time to time the committee assisted Māori – young Māori mostly – who were in trouble with the Police or the Children’s Court. We soon saw the many disadvantages children faced in their dealings with the whole judicial system and decided to analyse Children’s Court data from national justice statistics of that time to see what happened to these children. The picture that emerged, particularly for Māori children, really shocked us. We found that in every year, between 10,000 and 11,000 New Zealand children from the age of seven were being processed by the courts – 40 to 50 per cent of them were Māori. Since there was no duty solicitor scheme of any sort, the vast majority of these children were not represented by counsel.
Young children faced a range of criminal charges, with seven, eight and nine year olds charged with burglary, offences against the person and conversion. The figures included 10 and 11 year olds charged with ‘vagrancy’ (idle and disorderly) and, more seriously, with assault. In most cases these children were questioned, often alone, by police without any lawyer present. Most pleaded guilty as the Police and/or social welfare officers told them to. Parents were often not present, particularly because many of the children were state wards and had been removed from their parents’ guardianship.
The outcomes of the Children’s Court hearings were particularly disastrous for Māori children. They were twice as likely as non-Māori children to be sentenced to a detention centre, borstal or prison while the non-Māori children were more likely to be fined or admonished and discharged.
Our conclusion was that the Children’s Court was discriminating against Māori children and we wrote to the Minister of Justice, Roy Jack, and later Dr Martyn Finlay, saying so. The government’s own statistics proved that the system was a racist system. Roy Jack replied that in New Zealand we had the ‘best of British justice for all’; Dr Martyn Finlay, as Minister of Justice in the Kirk Labour Government, agreed that the record of the Children’s Court “was a dismal one.”
With no one there to argue for bail, magistrates might remand children to social welfare homes or if they were non-existent as in towns such as Nelson, to the (adult) cells of the local police station. In three or four bigger centres, children from the age of 13 could be remanded to an adult prison including the dungeons of Mt Eden or Mt Crawford. Māori children figured disproportionately among children remanded in custody.
Establishing a ‘do it yourself’ duty solicitor scheme
A Department of Justice study at the time showed that in the magistrate’s courts, twice as many non-Māori offenders had lawyers as did Māori – 86.7 per cent compared with 44.5 per cent. Correspondingly, Māori tended to plead guilty more often. As the author of the study concluded, ‘with a greater proportion of Māori pleading guilty, and fewer having representation, there is of course a greater likelihood of Māori being convicted’.
Having reviewed all the statistics and loudly criticised the Department of Justice for the racism they demonstrated, we decided that the most practical thing we in the Nelson Māori Committee could do would be to establish our own legal aid scheme. So, in 1972 we aimed to get legal representation for every Māori or Pasifika defendant appearing in the Nelson Magistrate’s or Children’s Court. We recruited two local lawyers, Warwick Reid and Brian Smythe who would take on these cases pro bono if not on legal aid. We got the agreement of the Nelson Superintendent of Police to advise us when there was any Māori or Pasifika arrested and we would visit them either in the cells or on bail, and then arrange for the lawyers to represent them in court.
The Nelson Māori Committee ran the scheme for all of 1972 and then decided to evaluate it. With the agreement of the Nelson Court Registrar, we were allowed access to the index cards summarising all the cases before the Nelson Magistrates Court for the years 1970, 1971 and 1972. The magistrate, Joe Watts, was the same in all three years. Of the 14,000 files in all, we set aside the traffic cases and for the remaining criminal cases, we tabulated data on ethnicity, charges faced, the outcome and whether or not the defendant was represented.
The present children’s court system and its associated penal policy, in place since 1925, should be completely abandoned, I argued. It had failed by all measures – including equity of outcome
The results were striking. In 1970 and 1971, about 18 per cent of Māori defendants had lawyers; in 1972 the figure was 79 per cent. A comparison of the pleas, conviction rates and penalties showed marked differences. In 1972 there was a significant increase in the number of not guilty pleas and for the first time in the survey period, some cases against Māori defendants were dismissed – previously not one had been. Imprisonments were down by a third from 34 per cent of convicted defendants to 19 per cent. This rate of imprisonment was actually lower than the corresponding rate for non-Māori – a first for New Zealand. Sentences to periods of probation were even more drastically reduced, from 17 per cent in 1970/71 to 5 per cent in 1972. There was a corresponding rise in the proportion of Māori who were fined, from 38 per cent in 1970/71 to 60 per cent in 1972. We concluded that if representation by counsel had a similar effect on sentencing in courts elsewhere as it had in Nelson, then at least one of every three Māori in prison should not be there.
Together with co-authors John Hippolite, Ross Galbreath and Anne Smith, I presented these startling results in a paper delivered to the New Zealand Race Relations Council on 10 February 1973. The paper, which was entitled Justice and Race: a monocultural system in a multicultural society, and made its point clear in its opening sentence: “Together with venereal disease and measles the judicial system was brought to this country by pākehā colonists.” Our accusation of institutional racism, greatly upset the politicians and the judiciary.
We argued that while not eliminating the racism of the system, a national duty solicitor scheme modelled on our Nelson scheme would certainly improve the overall justice of the system. So, we repeated the demands that we had made to the Minister of Justice, Sir Roy Jack in mid-1972: (i) all defendants appearing in court on criminal charges and liable to deprivation of liberty should be represented by counsel; (ii) a lawyer must accompany all children whenever they are questioned in a police station by police officers; (iii) all children appearing in court must be represented by counsel.
When I presented Justice and Race to the New Zealand Race Relations Council conference, arguing and offering proof that the judicial system was a racist system the most powerful response came from Will ‘Ilolahia from the Polynesian Panther Party and Syd Jackson, trade unionist and leading Māori activist from Nga Tamatoa. Their challenge, articulated most uncompromisingly by Will, was that “racism is a white problem, it’s up to you pākehā to do something about it.” So a small group of us went away and set up the Auckland Committee on Racism and Discrimination (ACORD). One of our first priorities was to carry on the campaign for the establishment of a nationwide duty solicitor scheme.
There was support expressed in the Law Journal thanks to its editor Jeremy Pope. In 1972 he published an editorial supporting our campaign and advocating a national duty solicitor scheme. He followed this up by publishing Justice and Race. The publicity led to the ad hoc establishment of duty solicitor schemes in various regions around the country during 1973. At the same time the new Minister of Justice in the Kirk Government Dr Martyn Finlay announced that he would continue to progress the work of the interdepartmental committee planning a national duty solicitor scheme which had been established by his predecessor Sir Roy Jack
In 1973, to keep up the pressure on the government, I spoke to over twenty meetings of various groups including a number of law societies. One of these was organised by the Young Lawyers Committee of the Auckland District Law Society, a group who included Robert Ludbrook, David Lange, Jim McLay and Peter Williams. Robert had arranged the event which was held in May 1973 and had me facing a well-known and very conservative Auckland magistrate, Hector Gilliand, and Ken Flint, the Director of Social Welfare in Auckland; the fourth speaker was Peter Williams.
The meeting was my opportunity to present ACORD’s blueprint for a comprehensive approach to child offending, completely outside the monocultural and punitive Victorian concept of justice to which the New Zealand child welfare and judicial systems had so long been wedded. The present children’s court system and its associated penal policy, in place since 1925, should be completely abandoned, I argued. It had failed by all measures – including equity of outcome – as the national statistics for Māori and non-Māori children showed. It was racist by virtue of its very existence as a wholly Pākehā system in a multicultural society. Māori and Pākehā must jointly re-design our whole approach to justice and child welfare. As a short term measure, all children must be accompanied by a lawyer when being questioned by the police and when they appeared in court.
By now, the politicians were slowly accepting the shortcomings of the system. Dr Finlay acknowledged that there was ‘some substance to the charge that New Zealand’s justice system was racist’. But, he went on, ‘it was more of an unconscious bias than a deliberate policy’. He concluded that he was ‘beginning to lean toward the notion that separate but equal institutions for the races could have some merit in New Zealand’. Finlay may have been the first Pākehā politician to accept this concept. An editorial in the Dominion at the time said that “Dr Finlay moved into a new area for a non-Māori in public affairs.”
Invoking the Official Secrets Act
Meanwhile, the Labour Government’s proposal for a national duty solicitor scheme was caught up in bureaucracy and progressing painfully slowly. Too slowly for at least one person in the Department of Justice who in May 1974 anonymously sent a draft cabinet paper on the proposal to me.
We were very interested to read the leaked cabinet paper and to see what the Government had in mind – and were not impressed. We wrote to Dr Finlay to say so, pointing out that unless some key changes were made, we would make the whole Cabinet paper public. Finlay was incensed and demanded that we return the paper and reveal who had leaked it to us or else he would hand the matter over to the Police for investigation under the Official Secrets Act 1951 (the Act). We were not about to comply with either of his two requests and told him so.
On Tuesday 14 May 1974, Dr Finlay passed the correspondence between himself and ACORD to the secretary of the Minister of Police, Mick Connelly, under a memorandum calling for urgent action by the police with a view to an investigation being made under the Act.
We hurriedly familiarised ourselves with the very draconian provisions of the Act – in particular the fact that we could face a 7 year prison term for failing to answer any question or for answering any question falsely. We would not be permitted to take advice from a lawyer. My wife Ulla, as an alien, could possibly be deported.
Looking back we can ask ‘have things changed?’ Well, duty solicitors are now deeply embedded in the judicial system; and... children are no longer remanded to adult prison
On Monday we were picked up by the police and escorted to the 10th floor of Auckland Central Police station for questioning. We found it intensely intimidating. We were certain that this action by the Government was provoked by our criticism of the heavy-handed police actions in Auckland at the time and our protests at the discriminatory treatment of Māori children by the police and the justice and social welfare systems.
The Auckland Council for Civil Liberties took up the cudgels on my behalf, stating that it appeared that the Government was using the Act to try to silence its own critics. The consensus of media commentators and editorialists, and there were many, was that prosecution of me was unlikely and that the Government had over-reacted in invoking the Act. There was no prosecution, but it was the end of that Act, which was replaced by the Official Information Act 1982.
National Duty Solicitor Scheme initiated
Dr Finlay’s national duty solicitor scheme got under way in July 1974. The proposal which he had put to his cabinet colleagues, which guaranteed legal advice to defendants but not legal representation, and only for those in custody, fell far short of what we, Ngā Tamatoa and the Polynesian Panthers had been campaigning for. ACORD argued that what was proposed would not end racial discrimination in the courts and that it overlooked the particular needs of Māori and Pasifika children and their parents. Ngā Tamatoa said that the scheme ‘did nothing to attack the basic problem of the institutionalised racism which continues to exist in the whole of the judicial system and which ensures that Māori remain the jail fodder in this society’. They were right of course. Nevertheless, within a week of its announcement, over 100 lawyers had volunteered for the scheme and Dr Finlay appointed ACORD as a member of the scheme’s administrative committee. But it was not until 1989 and the passage of the Children, Young Persons and their Families Act (later re-named the Oranga Tamariki Act) that legal representation of children and young people became routine.
Looking back we can ask ‘have things changed?’ Well, duty solicitors are now deeply embedded in the judicial system; and thanks to Judge Augusta Wallace’s 1984 report into ACORD’s complaint over children being remanded to Mt Eden Prison, and to Geoffrey Palmer’s support as Minister of Justice at the time, children are no longer remanded to adult prisons; but notwithstanding a continuing campaign by Judge Andrew Becroft, the remanding of children in police cells continues, and a disproportionate number of those are Māori – about 70 per cent. The good news is that in some centres, e.g. Nelson where it all started, remands to community residences has replaced remands in police cells.
I am happy to acknowledge the trailblazing work and persistence of the Nelson Maori Committee in the early 1970s and its chair John Hippolite. I am very grateful to Ulla SkÖld and Ross Galbreath for reviewing this paper.
1.This article draws heavily on Oliver Sutherland, Justice and race: campaigns against racism and abuse in Aotearoa New Zealand, 2020, Steele Roberts, Wellington, 288pp.
2.O.R.W. Sutherland, J.T. Hippolite, R.A. Galbreath, A.M. Smith, Justice and race: a monocultural system in a multicultural society, reprinted in New Zealand Law Journal, May, 1973, pp. 175 – 180.
3.Jeremy Pope, Duty solicitors, New Zealand Law Journal, 23 May 1972, 193-194.