In July 2000 and as part of my sabbatical, I attended at the United Nations Palais Des Nations in Geneva and delivered a presentation at the eighteenth session of the Working Group on Indigenous Populations.

My attendance was at the invitation of the Ministry of Foreign Affairs and Trade and was part of the New Zealand contribution to the Working Group. The audience comprised a wide mix of persons from indigenous nations throughout the world. A consistent theme of feedback appeared to be that the New Zealand legislation and perspective was novel and unique. Others felt that it could well be utilised as a blue print by their respective jurisdictions and nations for dealing with indigenous youth involved in the justice system.

The presentation was entitled ‘Youth Justice, New Zealand Style, A Māori Lawyer’s Perspective’. The following is a brief summary of the presentation.

The Presentation

It was made clear from the outset that I was speaking as an individual and not on behalf of any group or organisation.

The 1989 Children Young Persons and Their Families Act

The period immediately prior to the 1989 legislation was discussed and in particular the fact that change was required.

The discussion then turned to the 1989 Act and the distinction between Care and Protection and Youth Justice. The focus of the discussion was the Youth Justice provisions and more particularly the preamble to the Act, the general objects spelt out at Section 4 and general principles at Section 5. The Youth Justice principles were also considered and of course these are found at Section 208 of the Act.

Participants were particularly interested in the recognition of the needs values and beliefs of particular cultural and ethnic groups and the empowerment of whānau, hapu and iwi participation in decision making. The Act therefore represented a major transfer of power to family and community groups and away from the State.

Practical examples were then given as to how the legislation as far as Youth Justice was concerned actually worked. The participants in the Youth Justice arena and their respective roles were considered.

Key Features

Key features were identified as follows:

• Importance of whānau and tikanga Māori (Māori custom) and process.
• Ability for self determination in dealing with Māori youth and taking responsibility for Māori youth and their offending.
• A vehicle for lore and law to work together.
• Restorative justice principles.
• Family Group Conferences.
• Diversionary focus.
• Flexibility.
• Collaborative approach (i.e. inter-agency).

Many of the delegates present were keen to learn of the Family Group Conference which is essentially a cornerstone of the Youth Justice system in New Zealand. A case study was utilised which reflected how the Family Group Conference process actually works in practice.

A number of strengths of the Youth Justice process were identified. In the writer’s view they are:

• Indigenous involvement and meaningful participation.
• Self determination (whānau hapu and/or iwi taking responsibility for their own youth).
• Māori dispute resolution processes (i.e. marae venue, deciding kawa or protocol).
• Expeditious.
• Flexibility (allows innovation).
• Putting things right.
• Healing (between offender and victim).
• Special and dedicated team of experts.
• Consistency.
• Range of sentencing options.
• Diversion.
• It can work and, (when allowed to) does work well.

Weaknesses were also identified namely:

• Māori Youth Justice statistics are still too high.
• Proper iwi based programmes are few and far between.
• Reliance on whānau (which are sometimes the very root of the problem).
• Insufficient numbers of Māori Youth Advocates (and inadequate use of lay Advocates).
• Inadequate resourcing.
• Geographical variations.
• Independence of Youth Justice Coordinators.
• Monitoring of outcomes.
• Hard core/recidivist youth.
• Jurisdiction (maximum 3 months residential component).
• Goodwill (too much reliance on energy or goodwill of officials concerned).
• Burnout (especially Social Workers).
• Safeguards (for initial questioning by Police and pre-Court Family Group Conferences).

Statistical data was also analysed. It is clear from the statistics that there are a disproportionate number of Māori youth appearing before the Youth Court in New Zealand. This includes not only apprehension and prosecution but also conviction.

Indeed whilst Māori make up approximately 16% of the total population, 51% of Family Group Conferences involve youth of Māori descent. Conversely 7% of Youth Advocates are of Māori descent. Furthermore Māori youth between the ages of 14 to 16 during the period 1991 to 1998 were three times more likely to be apprehended, five times more likely to be prosecuted and between four and seven times more likely to be convicted of an offence than his or her non Māori counterpart.

In 1998 54% of cases where the ethnicity of the young person was known involved Māori Youth. Males amount for 85% of such cases.

The 1989 Legislation – A Decade On – A Success Or Not?

Initially the 1989 legislation was an outstanding success. However the success has not continued.

The initial success in reducing offending rates down has waned to the point where in relation to violent offences the figures are increasing and if the current trend continues we will be back to or exceed the 1989 rates.

Changes

In the meantime and in my view changes need to be made. These include:

• Appropriate and specifically targeted resources.
• Independent Youth Justice Coordinators.
• Jurisdiction (maximum penalties need to be reconsidered).
• Properly funded and set up programmes for hard core offenders.
• Properly funded iwi based programmes.
• More Youth Advocates of Māori descent (and the greater use of lay advocates).
• Safeguards (for questioning at the Police Station and at pre-charge Family Group Conferences)

Such suggestions for change however are not major surgery (with the exception of independent Youth Justice Coordinators and amendments to the jurisdiction) and could be achieved relatively easily and before it is too late. The area essentially needs a boost. This would be achieved in the first instance by an appropriately targeted injection of resources as well as the changes indicated to jolt it back to good health.

On the whole, it is the writer’s view that the New Zealand Youth Justice system stemming from the 1989 Act has been a success, but that success has been short lived and stunted.

The 1989 Act is an exceptional piece of legislation allowing the types of flexibility and innovation referred to particularly as far as Māori are concerned. The framework or bones are there.

However, due to the weaknesses and shortcomings also referred to, it is in real danger of descending back to the pre 1989 situation.

Urgent attention is required and particularly in relation to the plight of male Māori youth. Unless it is given, those involved in the New Zealand Youth Justice system experiment will be complicit in its ultimate failure.

The discussion concluded on a fairly positive note. Reference was made to the last budget round in New Zealand where it was recently announced (June 2000) that there was to be a $NZ22.1 million “Youth Justice Package”. Whilst the figure in the writer’s view is not nearly enough, it is certainly a tentative step in the right direction as far as resourcing is concerned. A similar review in the next year or two will ascertain whether or not changes have been made. We will simply have to watch this space.