Joshua Hitchcock

Māori and the Criminal Justice System

In Te Ao Māori on October 13, 2011 at 11:58 am

I am Māori and I can safely say that the Criminal Justice System in New Zealand does not discriminate against me.  Why not?

Because I do not break the law.

If you want a criminal justice system where Māori do not feel discriminated against then there is little point arguing about sentencing.  Instead, focus your energies on preventing your whānau from breaking the law in the first place.

  1. Is the justice system allowed to be racist to people who have broken the law?

    • The answer to that question depends on how you conceptualise what “law” is. If law is what we say law is, then a justice system can be racist/discriminatory. However, if we instead believe that the law is subject to higher, moral, codes then the answer would, of course, be no. I would be interested to know how “fair” tikanga Māori was to non-hapū members during pre-contact times. Were taurekereka afforded the same rights as free men within traditional Māori society?

      • It seems like your position is that its ok for our government and justice system to be racist as long as you are not personally affected.

        What if speeding Pakeha drivers get off with a warning 6 times as often as Maori drivers? Is that ok? Do you think Pita Sharples is holding his position because he is a criminal hoping for better treatment?

        • That’s an inference totally unsupported by my comments on this matter. I agree that there are issues around sentencing and police behaviour that need to be addressed. I have in the past come down heavily on police conduct on this site. However, when talking about sentencing, there are many Maori who obey the law and have no problems with this.

          • no problem with a (possibly) racist Justice system? Really? How about the driver scenario, would you be ok with that? And the single focus fallacy is the same as many commentators who suggest Maori should not do X until they have fixed child abuse or whatever.

  2. I feel like I am repeating myself here Rua, and you are drawing inferences that are unsupported by my comments. As I said, there are issues around sentencing and police behaviour that need to be addressed.

    • Then I don’t understand the point of this post at all. “preventing your whānau from breaking the law” is worthy but does not address any potential bias in the justice system.

      The Justice System includes much more than sentencing, there are many many points of interaction where there is room for discretion by the government’s agent. Bias should be checked for and systematically removed by the government. There is no single reason Maori are overrepresented in pretty much every bad statistic.

  3. A friend of mine is doing his thesis on this topic. He suggests Maori are less likely to get warnings or diversions for first offences. Oh and it might help if you don’t ‘look Maori’ and/or don’t have an obvious Maori name.

    I’m glad you’re not breaking the law. May that continue. Just be mindful that laws protect the 1% first and foremost; it’s a means of maintain status quo and hegemony. Law is also a reflection of parliament’s intent and parliament’s intent has never favoured Maori one iota – quite the opposite. Furthermore, common law, statutory law and case law rarely favours Maori. But you already know that

  4. Kia ora Piri, thanks for your comment. Your friend’s thesis sounds fascinating – I would love to hear more about it. And I think anecdotally you are correct with the statement that appearance matters in sentencing, although I am reluctant to comment further before seeing the empirical analysis on this.

    As for your second paragraph, I have some trouble accepting the major premises behind it. I doubt that in New Zealand our laws are designed to protect the 45,000 at the top first and remains ignorant to the rest of us. We have a strong democracy, with the Governments of the day often doing a decent job reflecting the desires of the majority. Yes, this can sometimes come at the expense of minorities, but the system is not perfect and improvements need to be continually fought for. As for the role of the common law/case law in all this: It is my experience that the common law has been very favourable to Māori over the past 30 years. From the Lands Case through to Ngāti Apa, the Courts have strived to uphold Māori rights.

  5. He should finish his thesis by the end of the year. I’ll can pass on the detail.

    I see no point in using a catch all phrase like ‘minorities’. We’re not talking about minorities, we’re specific talking about Maori.

    You may not believe the past affects the future but I wanted to respond to the idea the justice system may or may not discriminate against Maori – although not breaking the law does sound commendable. However, as you know, the Government can pass any law it likes – but usually at Maori expense. Here’s a snapshot of some of those laws.

    The Land Claims Ordinance 1841proclaimed that any land not occupied or used by Maori belonged to the Crown.

    The Native Lands Act 1862 broke down Maori communal ownership:

    The Suppression of Rebellion Act 1863 – gaves no right to a trial before imprisonment for rebellion.

    The New Zealand Settlement Act 1863 confiscated Maori land to pay for the war.

    The Native Reserves Act 1864 proclaimed that all remaining land reserved for Maori use was put under settler control.

    The Native Land Court 1865 was established to determine ownership of Maori Land

    The Oyster Fisheries Act 1866 prevented Maori from fishing commercially.

    The Maori Representation Act 1867 established four Maori seats in Parliament. Rather than a privilege, it was a response to Pakeha fear that Maori could gain a majority in Government.

    The Native Schools Act 1867 aided assimilation.
    The Native Land Amendment Act 1879 made it easier for small farmers to get Maori land.

    The Peace Preservation Bill 1879 handed one year’s hard labour for Maori who refused to leave their abodes.

    The Maori Prisoners’ Act 1880 saw Maori arrested who prevented the surveying of confiscated land. These people were kept in prison for an indefinite period without trial.

    The West Coast Settlement Act 1880 empowered the Government to arrest Maori without a warrant and jailed for two years with hard labour if they built anything or hindered surveyors.

    The Native Reserves Act 1881 allowed the Public Trustee to control Maori reserves.

    The Native Lands Administration Act 1886 rejected the traditional right of communal ownership so allowed Maori land to be given to small groups of trustees who then had the right under to sell it.

    The Native Land Act 1887 allowed the direct purchase or appropriation for defence purposes.

    The Native Land Purchase and Acquisition Act 1893 aided the quick purchase of Maori land.

    The Advances to Settlers Act 1894 gave low-interest loans to white settlers to buy land from the Government.

    The Native Land Court Act 1894: Names on the Certificate of Title were deemed trustees or beneficial owners.

    The Validation of Invalid Land Sales Act 194: legitimised any Pakeha mis-dealings affecting Maori land.

    The Maori Land Settlement Act 1894 allowed white Land Councils to control.

    Amendments to the Native Land Act 1905-8 forced further sales of Maori land.

    The Tohunga Suppression Act 1908 imposed penalties on tohunga.

    The Native Land Act 1909 – more of the same ….

    Under the Adoption Act, Maori could no longer use the whangai system for adopting children. The Act was to prevent the adoption by Maori of Pakeha children.

    Under the Maori Affairs Act 1953, the Government declared unoccupied or unused Maori land ‘waste’ then claimed it.

    The Town and Country Planning Act 1953 prevented Maori from building on their land.

    Under the Maori Affairs Amendment Act 1967, the Maori trustee had the right to ask individuals to sell to the Crown while land owned by less than four had to be placed under one title.

    Under the Rating Act 1967, Maori freehold land was subject to rates.

    The Maori Fisheries Act 1990 grants Maori just 10% of the fishing quota and calls this ‘full possession’.

    The Foreshore and Seabed Act 2005 places Maori land in the Crown’s possession.

    I could go on but the point here is to illustrate the legislative history of discrimination and combat idea of simply not breaking the law. Not only can Parliament make laws, the can make laws and backdate it, too.

    Case law and government policy, too, does Maori little justice; if I had time, I could illustrate noted historic and contemporary examples.

    So what about common law principles? It appears Cabinet in particular are going out of their way to compromise and over-ride the BORA e.g. right to remain silent, Evidence Act, retrospective legislation, etc. Under section 6 can pay lip service to individual freedoms. But as you know, the BORA derives from common law principles. Yet they’ve gotten away with this one under section 6. How does this benefit the majority – let alone Maori?

    Also, I would suggest when Maori get wind in their sails, the government reacts. The FSSB legislation provides an apt example of knee-jerk reactions to the rule of law. So in practice does the rule of law apply to Maori?

    Terrorism laws stem directly from global and corporate interests while domestic terrorism laws targeted Maori despite real acts of such nature committed by the French (Greenpeace), Captain Cook and rightwing nutjobs (Trade Hall). In summary, they used terrorism laws to trump up charges against Maori and Maori interest. This wouldn’t wash so to save face they undermined common law principles to make these charges stick.

    Okay with time constrainst in mind, I know there’s much to discuss and elaborate here and I’ve only just scratched the surface but again, my main points reflect widespread discrimination against Maori as well as the environment difficulties in obeying unjust law.

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