I want to begin by acknowledging the immense work that Andrew Little did as Minister of Justice over the past three years, considering and beginning the immense amount of work needed to reform the justice system. I expect, and hope, that new Minster Kris Faafoi will continue those reforms apace – no slowing down, no looking back.
With various elections around the world, and the surging Covid situation, I have not written about justice reforms for a while (gosh, it has been months!), so I decided it was time. As both members of my avid readers society will attest, supporting the overthrow of the current justice system, in favour some thing more positive, passionate and life-enhancing, is at the centre of my heart and mind.
The Waitangi Tribunal is currently considering whether to hear a claim (WAI 3008) against the 2013 Bail Amendment Act, which caused a very large increase in the number of people, mainly Māori, held in our prisons prior to being put on trial. This process is known as ‘remand’. How it goes is as follows: a person is arrested for a crime. They spend a night or two in police cells, get some advice, appear in court and (usually) make a plea and are remanded ‘in custody’ or ‘on bail’ until their case can be heard.
Christie Marceau was murdered by her stalker ex-friend who had a very severe mental illness yet was allowed out on bail. It was a serious and fatal error. The resulting moral panic led to the 2013 Act, which massively expanded the number of people that would have to be held on remand.
The injustice here is that, with long delays in trials, people are held for months and years to such an extent that more than half of remand prisoners never spend a day as a sentenced prisoner, but are released on ‘time served’.
Hundreds of remand people are also found not guilty yet have their lives ruined, jobs lost, families split up etc as a result of being held before trial in prison. Many people turn to gang membership while on remand.
Around 40% of those currently in prison are on remand. The growth in pre-trial detention has particularly increased further the number of Māori in the prison system. The burden falls disproportionately on Māori and also on women, whose numbers have been increasing while sentenced numbers go down.
The remand population is the primary driver of the increase in prison numbers over the past few years. Without high remand figures, prison numbers would be reducing across the board.
It is a sign of tinpot dictatorships when the numbers of people held without trial increase substantially. Remand is much worse than a sentenced term of imprisonment. Remand prisoners can’t be put on work or therapeutic programmes for legal reasons. They are mainly just held, until the court system eventually comes around to giving them a trial.
So the claim WAI 3008 argues that the 2013 Act is unfair and unjust, the burden falls mainly on Māori, the justice effects are harsh and unforgiving, prison itself can be violent and is always alienating, and the cost to the public is high.
There are many so-called ‘kaupapa’ claims currently in front of the Waitangi Tribunal. These are huge, multilateral claims based on broad policies areas, such as the kaupapa health inquiry (WAI 2575). The list of the 13 kaupapa inquiries can be found on the internet. Justice is number 12 on that list of 13 and has not yet commenced.
This means that it might be a decade before the Waitangi Tribunal begins to examine the claim that the Crown has breached the Treaty of Waitangi by making the burden of the justice system fall heavily and unjustly on Māori. At the heart of this claim is the pattern of everyday unfairness, bias and discrimination that Māori face.
The claim that the 2013 Act has breached the Treaty in and of itself has the potential to allow the tribunal to examine some of the core issues facing Māori in the justice system without having to wait for the hearing of the larger claim, and to consider, urgently and within a contained framework, one of the largest injustices that still impact on Māori in the justice system.
The person leading the claim is a young criminology graduate at Victoria University, who was herself held for a over a year on remand in prison, Awatea Mita. Many others are supporting the claim for a separate hearing, and under urgency. I hope the hearing goes ahead.
In the meantime, there are many other reform issues in justice that the new minister can work on. There is the opportunity in this term of government to turn the juggernaut of a punitive and vindictive justice system around, and find new measures of justice for a happy and peaceful society. I wish the new Minister good luck, and don’t forget to eat your greens and take your vitamins, as sustained energy will be needed.
Dr Liz Gordon is a researcher and a barrister, with interests in destroying neo-liberalism in all its forms and moving towards a socially just society. She usually blogs on justice, social welfare and education topics.