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THE NEW ZEALAND EXPERIENCE
Restorative justice: Making justice
work
Paper presented to International Bar Association
Conference Auckland, New Zealand
The development of restorative justice in New Zealand
has not been a top-down process. The understanding that offending and
justice are the issues of a community and that restoration of peace is a
community process are integral to Maori and to the Pacific communities
that have been long established in New Zealand. With colonisation of New
Zealand by Great Britain in the 19th century the legal system of an
imperialist capitalist power, the most powerful in the world at that
time, was imposed on Maori iwi (tribal groups). Maori did not have an
all-powerful state but governed through more communitarian processes
reflecting their social and economic structures based on agriculture,
fishing and inter-tribal trading. Maori resisted colonisation by
defending their cultural, including justice, practices despite an
organised assault on them by the colonial power. Restorative Justice as
a movement in New Zealand has found that Maori have been teachers and
boosters of the processes not passive recipients of an external
philosophy.
From community initiatives to legislation
Restorative Justice proponents took the philosophy into political
parties in the 1980’s. The more formalised and conscious movement was
not to develop until the early 1990’s but the principles were well
established within Maoridom and in other organisations which were
seeking to move away from an imprisonment path where the state got its
pound of flesh and the victims were left to fend for themselves. The
block for them was that the “law and order auction” mentality was alive
and well in New Zealand This has led to New Zealand having the
second-highest imprisonment rate in the Western world. The first
political success was the implementation of Family Group Conferences
under the Children, Young Persons and Their Families Act of 1989 This
became the legislative mechanism through which restorative practices
became an integral part of the youth justice system.
In the 1990’s restorative justice proponents looked at
how to spread into the adult system and at the same time hold onto the
community based nature of restorative justice. It was slow going. Most
parties were afraid of extension to the adult system, as they would be
labelled “soft on crime”. They felt that they needed to be seen as
advocates of “punishment” to be elected. At best they wanted restorative
justice to be a minor add-on with qualifications that it was only to
apply to the minor offences. Big bad offenders were for the slammer!
However, as the movement spread at grassroots level and restorative
justice initiatives and the successes of those initiatives became
apparent more adherents were won within the political parties.
Unfortunately, understanding of restorative justice at leadership levels
was still abysmally low. In 1999 the centre left Labour-Alliance
coalition government was elected. Both parties were committed to
restorative justice being introduced into the adult justice system. This
was the work of activists and lobbyists.
Court Pilots
The first step of the new government was to introduce 4 pilot schemes in
3 court districts. The scheme excluded family violence cases and the
most serious offences such as murder, rape, manslaughter and robbery
with violence. However, it left a wide field of other serious offences
and was an important first step. But it was not a battle easily won. The
political lesson? It is not just good enough to have policy on the
Political manifestos. It needed commitment at the highest political
levels. In 1999 I was appointed Minister of Courts and Corrections. My
first obstacle as Minister of Courts to implementing policy commitments
of both coalition partners to restorative justice was the indifference
of other ministers, busy with their own portfolios and of the opinion
that this was just “feel-good” and “soft” policy. However, a powerful
ally was the Prime Minister who wanted to move away from the more
imprisonment path. Lesson number two: have a powerful ally.
The Minister of Finance, speaking for the Treasury
could find no evidence that pilot projects in Courts would work (the
very reason for having the pilots to find out if they did) and therefore
it would be a waste of money and best to stick with what we were doing.
Treasury could, they believed, put a monetary sum on the cost and the
benefit of the existing justice system, particularly the prisons, but
this new, to them, beast of restorative justice was all too waffly and
could not be pinned down within their existing cost benefit analyses. In
other words: we can live with the cost of prisons and the cost to so may
personal lives. That is factored into our calculations and the affluent
can wall themselves off form the trauma of crime for the poor. However,
assembling allies, including allies within the Minister of Finance’s own
party (his own leader being one of the allies), using blackmail in the
right places and with a fervent desire to succeed we won the day in the
corridors of power and the restorative justice court pilots were
approved in our first Labour-Alliance budget of 2000.
Legislation 2002
Next up was legislation. In quick succession the endorsement of
restorative justice was placed into the following acts: 2002 was to be a
busy year for entrenching restorative justice into the legislative
framework.
The Sentencing Act 2002: Judges were directed to allow
for restorative justice conferences and to take into account
recommendations from those conferences for sentencing purposes.
The Parole Act 2002: The Parole board was now able to
take account of the deliberations and recommendations from any
restorative justice processes that had occurred while the inmate before
them had been in prison.
The Victims Rights Act 2002: This new act allowed for
the deliberations of restorative justice conferences to be considered
when reparations for the victim were considered. This was a significant
step for bringing victims into the centre of the restoration process.
Their views, their feelings, their healing were now fundamental factors
in achieving justice.
The Corrections Act 2004
Throughout the previous decade restorative practices were carried out in
a number of the country’s prisons. Many dedicated individuals in
communities and among staff and other agencies introduced and nurtured a
number of initiatives. However, a number of managers were nervous of
these processes and often did not see them as “core” business. Conflicts
arose and practitioners were in a weak bargaining position as there was
no legislative basis for their requests. There was good will and
certainly a directive when I was Minister to facilitate restorative
justice but no buttress from the law. The new act in 2004 changed that.
The policy of Labour and Progressives as coalition partners in
government was put into practice. With support from the Green Party it
passed into law. Under s6(1)(d) offenders must, where appropriate and so
far as is reasonable and practicable in the circumstances, be provided
with access to any process designed to promote restorative justice
between offenders and victims. Restorative Justice in the prisons had
come out of the cold.
Restorative Justice in New Zealand – Best Practice
In 2005 lengthy consultation between the Ministry of Justice and the
community based restorative justice network led to the codification of
what was considered to be best practice. This was the result of concern
that restorative justice processes had to be valued and respected by
victims and offenders and society in general if it was to maintain
credibility and continue to develop. The document incorporated the
Principles for Best Practice agreed to and also a “Statement of
Restorative Justice Values and Processes” from the Restorative Justice
Network. The latter was an essential part of the document. This was
recognition that restorative justice would not be captured and neutered
by bureaucracy but would continue to be a dynamic community process but
with the highest standards maintained for the confidence of all.
Restorative Justice in New Zealand now has a firm
legislative basis through the political process. But its community roots
are there for all to see.
27 October 2004
Hon Matt Robson MP
http://www.scoop.co.nz/mason/stories/PA0410/S00465.htm
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