And Justice for All? - The 'transformational change' trying to keep Kiwis out of jail

New Zealand's criminal justice system isn't serving victims, offenders or whānau. Calls for urgent reform have not been met with action. In the second of a three-part series Derek Cheng looks at what change is happening - with or without Government backing.

"Transformational change" is a term associated with Prime Minister Jacinda Ardern, but she and her Government are at arm's length from the reforms sweeping the district court.

In November Chief District Court Judge Heemi Taumaunu laid out his vision for Te Ao Mārama, meaning "the enlightened world", and he has since been laying the groundwork for changes in Hamilton and Gisborne.

The district court deals with 210,000 matters a year, but for decades many passing through its jurisdiction have felt unheard and alienated by the process.

Even worse, many have felt that justice wasn't served, and the chance to stop criminal history repeating itself was missed.

To remedy that, Taumaunu wants to bring the best practices in specialist courts into the mainstream including, where appropriate, tailored community- and iwi-led approaches to address why a person has offended.

"What we have announced is a transformational change to the way that we administer justice in our court," Taumaunu says.

"People should be able to be confident that they can come to our court and seek justice … [where] we tried to assess what was going on, what led to you behaving in this way, and put a plan in place - where appropriate - to try and address that to reduce the risk of coming back in the future."

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Specialist courts include Alcohol and Other Drug Treatment Courts (AODT), Rangatahi and Pasifika Youth Courts, Family Violence Courts, the Young Adult List Court in Porirua, the Sexual Violence Pilot Court, and courts for helping the homeless in Auckland and Wellington.

Instead of a one-size-fits-all approach, these courts use different tools where appropriate such as directing offenders to addiction treatment, integrating tikanga Māori into the process, and involving communities in the resolution.

And they have, in general, been more effective at reducing reoffending. A third of AODT Court participants reoffended within 12 months, compared with 62 per cent of comparable offenders – though the gap narrows significantly in the four-year follow-up.

Those passing through the Rangatahi and Pasifika Youth Courts from 2010 to 2012 had a 41 per cent reoffending rate within 12 months – lower than the Youth Court (46 per cent).

Judge Heemi Taumaunu, Chief District Court Judge, says his vision of Te Ao Mārama is about being heard in court and being able to meaningfully participate. Photo / Mark Mitchell

"The issue about the specialist courts is that there are only a few of them," Taumaunu says.

"If you're not lucky enough to live in that area, or be eligible to enter that court, then it seems to me that you should still receive, to the extent possible, the benefits of those best practices."

'Profoundly necessary'

Te Ao Mārama is welcomed by justice reform proponents including Safe and Effective Justice Group chairman Chester Borrows, Inaia Tonu Nei report author Jamie-Lee Tuuta, and chief victims advisor Kim McGregor, author of Te Tangi o te Manawanui.

Tania Sawicki Mead, director of youth justice advocacy group JustSpeak, calls it "profoundly necessary".

"I hope it creates an opening for Parliament and the Cabinet to play their own role in and helping reset the direction. It demonstrates even more how much the Government is missing in action."

But Taumaunu says Te Ao Mārama isn't a response to what the Government is or isn't doing, but rather to the independent reviews of the justice system in recent years as well as the Puao-te-ata-tu and He Whaipaanga Hou reports in the 1980s.

They all called for urgent, transformational change.

"It's 40 years of them saying the same thing, effectively. But you really have to trace the history of this country to fully understand where Te Ao Mārama is coming from," Taumaunu says.

"Grievances didn't start in the 1980s. They started pretty much as soon as the Treaty of Waitangi was signed. They were primarily addressing land issues, and really the imposition of a British common law system over the previous system, which had operated for 1000 years, called tikanga."

Plans have started for Te Ao Marama in Hamilton District Court, pictured, as Gisborne District Court. Photo / Belinda Feek

Te Ao Mārama, which he says will take years to implement, doesn't need Cabinet- or Parliament-backing, given the separation of powers between the legislature, executive and judiciary.

"It is a judicially led initiative. It doesn't require new legislation for it to happen," Taumaunu says.

"It's a different question whether legislation could be considered to make it even more effective. We are definitely proceeding on the basis that no new legislation is required."

Asked if he has sought support from the National Party, which called the recommendations in Turuki! Turiki! "soft on crime", Taumaunu noted that many of the specialist courts were piloted under a National-led Government.

"It's about fairness, so anyone who's affected by what we do in our court can be seen, heard, understood, and meaningfully participate in proceedings - whether they're rich or poor, regardless of ethnicity, regardless of culture, regardless of language.

"These are ideas that are very hard to criticise when you're talking about fairness."

Where is the Government in all this?

Justice Minister Kris Faafoi told the justice select committee in June that Taumaunu's leadership on Te Ao Mārama is to be commended, but his support does not appear to be unequivocal.

"There will be a discussion — if the judiciary wants to broaden these types of courts out much wider, because they were still early days — about how we transition to that," Faafoi said.

"I think that's a relatively robust conversation that we will have with the officials and the judiciary about how that can happen."

Faafoi has repeatedly refused Herald requests to be interviewed on his plans for the Justice portfolio, making his comments to the committee effectively the only public ones he has made on the sector - though he is speaking at a justice conference on Saturday.

"We know our justice system is not meeting the needs of many New Zealanders and that fundamental change is needed," he told the committee.

Justice Minister Fris Faafoi has refused countless interview requests about his plans for the sector since November last year. Photo / Mark Mitchell

Budget 2021 included $348 million over five years for Justice and Courts, two-thirds of which is for legal aid, with other funding for preventing family and sexual violence, and a new initiative modelled on the Kaikohe Matariki Court.

Faafoi told the committee that the work of Hāpaitia te Oranga Tangata, the Safe and Effective Justice group, had given the Government a licence to make changes to the way courts are designed, built and planned.

He also talked about Te Pai Oranga, the iwi community panels run by police - which got $70m in Budget 2021 for 14 more panels - and Corrections strategy Hōkai Rangi.

The Government announced a new ADOT court in Hamilton in 2019, which was promised for 2020 but wasn't opened until June this year.

Labour's election manifesto also promises another ADOT court for Hawke's Bay, rolling out the meth-treatment programme Te Ara Oranga beyond Northland, and expanding police diversity.

'Tweaks' that lack boldness

Chester Borrows says ADOT courts were trialled nine years ago and "everyone says it's a fantastic success".

"So they've opened one new one in Hamilton – is that it?"

Such initiatives will help but are ultimately just tweaks, says Jamie-Lee Tuuta.

"We need some of those tweaks because whanau are suffering right now, but they have to be done in tandem with systemic and structural changes. Otherwise you're just going to have to keep tweaking everything, and it's never going to be enough."

Tania Sawicki Mead, director of JustSpeak, says Te Ao Mārama is 'profoundly necessary' and shows where the Government is missing in action. Photo / Supplied

Similarly, Tuuta says the Government's attempts to address inequality by lifting benefit levels and paying billions of dollars in the Families Package to address child poverty are helpful.

"But they're not sorting out the drivers of crime. Social inequity, health inequity, issues with disconnection from identity and culture - those are the reasons people offend."

Sawicki Mead, Tuuta and Borrows are all pushing for a Te Ao Mārama-type approach across the whole justice system, one that brings together several agencies including education, social development, health, housing and justice, and which works in tandem with structural change that enables partnership with Māori.

"There are some settings and levers that the Government, with its majority in Parliament, absolutely has access to that would create space for people to do things differently," says Sawicki Mead.

"That's their job. And I haven't heard a peep from them about what they plan to do."

Professor Ian Lambie, chief science advisor for the justice sector, says all the Government's resources are targeted at the wrong end of the justice funnel - courts and prisons.

Those need reform, he says, but a major issue is the children who are highly likely to have poor life outcomes, and who are known in the system but aren't sufficiently helped.

"Those kids will be under the age of 10, out of schools, with trauma histories, and a significant number will go on to cause significant problems in society."

There are about 120 children in that group every year, he said.

"As a country, we've never done anything about that at all. We still fail to do that."

Barrister Jamie-Lee Tuuta says all of the Government's justice initiatives are 'tweaks' that won't bring about the structural change and partnership with communities and Māori that is sorely needed.

A group of justice sector chief executives has agreed on a 2020-23 strategic plan to "help guide transformational change", including pursuing partnerships with Māori at national, regional and local levels.

But Tuuta says there is no sign of any discernible difference to what is happening on the ground.

She does, however, single out Corrections strategy Hōkai Rangi - which seeks to involve communities and whanau in rehabilitation - as making a difference.

The prison population has dropped by 2400 people - or 22 per cent - from an all-time high in March 2018 of 10,685, and the proportion of prisoners who are reconvicted within two years of being released dropped from 60.8 per cent last year to 58.1 per cent this year.

The number of sentenced prisoners is declining, but the remand population – which has soared since bail laws were changed in 2013 - is projected to swell by 67 per cent by 2030.

The remand issue is not a problem of Corrections making, Tuuta says, which once more underlines the importance of system-wide change.

"There's no conversation about the whole constitutional framework in which our justice system sits," says Tuuta.

She doesn't understand why partnering with Māori in the way envisioned in Te Tiriti o Waitangi is such a "big deal".

"We always enter into business arrangements where we keep separate businesses, but in times of mutual benefit, we come together. I don't see why the Treaty can't be the same.

"Corrections, Justice, social issues - there has to be a link-up between all of them to do the work, and then empower our communities to be able to do their part.

"It just seems like a no-brainer."

The series

Part I: How the justice system is failing New Zealanders.
Part II: The changes that are underway and who's behind them.
Part III: Why there is optimism about a victims-centred system.