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Opinion by Audrey Young
Audrey Young, Senior Political Correspondent at the New Zealand Herald based at Parliament, specialises in writing about politics and power.
Prosecution Guidelines are issued by the Solicitor-General.
They were last updated in 2013.
Being Māori may now be a factor in decisions on prosecutions.
Audrey Young is the New Zealand Herald’s senior political correspondent. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018.
OPINION
It is astonishing that the seasoned Solicitor-General, Una Jagose, KC, has got herself into political difficultyover the latest revision of the Prosecution Guidelines in which she asks prosecutors to “think carefully about particular decisions ... where a person is Māori”.
Astonishingly, she did not foresee the political difficulty it would place the Government in, or she did foresee it and continued anyway.
Jagose is no slouch. She was temporary head of the intelligence services before being appointed Solicitor-General in February 2016. She has been in the job for almost eight years, across governments of many persuasions (appointed by Chris Finlayson in 2016, reappointed by David Parker in 2020 and in May this year she was reappointed by Judith Collins until May 2026).
As the Government’s chief legal adviser, the only legal officer senior to Jagose is Collins, as the Attorney-General.
Collins is overseas but word has it that she saw the draft Prosecution Guidelines and expressed some disquiet. Nonetheless, they were published last week.
Former Attorneys-General have written the foreword to former Prosecution Guidelines. Collins did not provide one for this update, clearly because she is not happy with it. Collins is not extreme. She is proving herself to be an orthodox Attorney-General.
Attorney-General Judith Collins was not happy with the new Prosecution Guidelines. Photo / Alex Burton
The differences she has with the Solicitor-General raise questions about not just the apparent racial aspects of content but the relationship between the Solicitor-General and the Attorney-General.
The Solicitor-General, who is also the chief executive of Crown Law, should not be a mouthpiece for the Attorney-General. She should not consult the Government on issues related to individual criminal prosecution.
But there are limits to the independence of the Solicitor-General and her actions are inviting unnecessary tension in her relationship with Government.
At the very least, one would expect Crown Law’s general policies – such as Prosecution Guidelines – not to conflict with Government direction.
Yet since the guidelines were issued, they have been the subject of critical commentary not just from right-wing commentators but by senior Government figures as well, including Act leader David Seymour.
The Cabinet Office circular on Cabinet’s directions for the conduct of Crown legal business states: “Core Crown legal matters must be conducted consistent with any applicable values of the Attorney-General, as expressed by the Attorney-General from time to time.”
The guidelines also go against the spirit of the recent Cabinet Office Circular setting out expectations that services “are not arbitrarily allocated on the basis of ethnicity or any other aspect of identity”. Prosecution services are surely included in that.
The Prosecution Guidelines were last updated in 2013, which did not mention Māori or bias.
The new guidelines give attention to the need for prosecutorial decision-makers to be aware of unconscious bias and to employ strategies to avoid it. Fair enough. And they rightly suggest that statistics show Māori are overrepresented in crime statistics as defendants and victims.
Una Jagose, KC, has been Solicitor-General for more than eight years. Photo / Mark Mitchell
But that is not the problematic part of the guidelines – the aim is to have a colour-blind justice system.
The problematic part suggests the way to address overrepresentation is to “think carefully about particular decisions where a person (whether the victim of the defendant) is Māori, or a member of any other group that is disproportionately impacted by the criminal justice system”.
That conjures up notions of reverse racism in which a suspect of a burglary who is Māori might not be prosecuted because he is Māori – and implying they could get different treatment to a Pākehā burglar.
If the aim was to tell prosecutors there was disturbing evidence that prosecutions are less likely to occur when the victim is Māori or the offender is Pākehā then that could have been plainly stated, but it wasn’t.
The overall official guidelines include the possibility of ethnicity being a legitimate factor in not prosecuting.
“I wouldn’t have characterised them that way,” said Justice Minister Paul Goldsmith in understated fashion.
Jagose refers to a Supreme Court judgment that says deprivation and historical dispossession sometimes help to explain an offender’s limited life options and the circumstances that made the offending more likely, and in explaining how the offender came to offend, would be relevant to sentencing.
Under the prosecution principles, the guidelines say: “Public prosecutors should understand that the same treatment will not always do justice to all, in the context of unequal backgrounds, opportunities and circumstances.
“Because prosecutors have an influential part to play in the criminal justice system, they should recognise their decisions may contribute to the well-documented disproportionately adverse system impacts, for Māori in particular.”
Jagose says, with reference to prosecutorial decisions: “Being Māori could co-relate with deprivation or trauma that may be relevant to a specific decision, although this does not mean the decision must be made in a particular way.”
The caveat is not a get-out-of-jail card for Jagose. She is clearly including guidance to think carefully about prosecuting when the offender is Māori.
That is problematic at any time, let alone for a Government that is united on one thing if nothing else – equal treatment of citizens.
