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Some submissions had reservations about the consideration of cultural issues:
Justice must result in "like" cases being treated in "like" ways. Culture should never be used as an excuse for undermining the application of justice. Culture must never be used to invoke "soft" options in response to offending.
Sensitivity to any culture should be determined on a case by case basis. This could be Celtic, Asian, Māori, Tokalauan or anything else. We are a multi-cultural society with high proportions of certain categories. Sensitivity however, should not be used as a basis for changing the pre-determined rules. (Christian Coalition, 46)
The desire to make the justice system more culturally relevant was also seen as looking backwards to the past.
However, others believed that for the justice system to be effective it had to be culturally appropriate. Some even saw restorative justice as moving beyond cultural appropriateness to a more appropriate approach generally:
While Moana Jackson (1988) has argued that many Māori feel alienated from Western criminal justice systems, it is equally the case that many Pākehā also feel the current system has little relevance to their lives. The reasons for setting up restorative justice then should not be based on the premise that it is culturally relevant, as the process is one which could be "relevant" to all cultures in New Zealand. (Carbonatto, Thorburn & Pratt, 62)
The point was made that all ethnic groups needed careful consideration and that new settlers, in particular, need help with coming to terms with the justice system. Age, class and gender were mentioned as well as ethnicity, with some respondents feeling strongly that people in many groups need support in dealing with the present "male Pākehā system". (National Council of Women, 40)
Several submissions commented on the usefulness of data collected overseas. Some referred to successful overseas initiatives, arguing that much could be learnt from them, while others argued that it was also vital to study systems in the New Zealand context (seven submissions). The submission of the New Zealand Māori Council also noted that indigenous justice processes in other countries are based on restorative principles.
This section considers the submissions that commented on cultural issues in relation to Māori. The views described, while including those made by Māori, are not necessarily representative of Māori opinion.
Eleven submissions viewed the existing system as culturally inappropriate for, and failing Māori. Six submissions referred to the over-representation of Māori in a number of statistics such as suicides in custody, prison inmates, and recidivist offending.
In general terms, restorative justice was seen in seven submissions as being potentially more culturally sensitive than the existing justice system. Culture and ethnicity was seen as an area in need of exploration and careful consideration. Therefore, for restorative justice to be effective, it was believed that attention must be paid to cultural issues. Calls for restorative justice were seen as recognising diversity, with two submissions stating that restorative justice had the potential to provide for cultural diversity while preserving a single justice system. Five submissions suggested that much could be learnt from Māori, and that restorative justice was not necessarily a new paradigm for all cultures in New Zealand.
A view was that restorative justice could:
...provide a complementary system of justice which can reside within the communities of New Zealand, both Pākehā and Māori, and which can operate alongside court-based processes as an integral part of the whole system. (New Zealand Māori Council, 112)
Restorative justice was also seen as potentially providing a mechanism whereby the power of Māori communities could be affirmed and strengthened. As Māori would then have a defined interest in the justice system, it would be more likely to command their respect.
Reference was made in 10 submissions to existing programmes and informal processes currently in operation under similar principles to restorative justice. These included several marae-based initiatives. Seven submissions saw value in marae-based programmes.
For iwi to bring back the Tribal Committees to focus on Youth Justice and Adult Justice for petty crimes. Also utilising the Justice of the Peace for those areas. (Te Runanga o Ngati Hine, 28)
In recent years there have been a number of experiments which have aimed to revive aspects of traditional practice, for instance in dealing with sex offenders through "marae justice", by holding judicial hearings on marae, and in dealing with young offenders on marae. However, these are relatively minor changes to fundamentally Western process that do not go to the heart of a Māori perspective. (New Zealand Māori Council, 112).
Other alternatives to existing sanctions for Māori were proposed, with community-based options being viewed as preferable. State intervention in these programmes would be problematic, serving to compromise the mana of the programmes. Several submissions suggested that any restorative initiatives on the marae would need to be appropriately resourced, with adequate training for facilitators in cultural matters and mediation techniques.
Cross cultural issues were also discussed. Difficulties were anticipated where victims and offenders were members of different cultural communities, particularly those with no restorative tradition. Non-Māori discomfort with marae-based programmes was identified in several submissions as a potential barrier to restorative programmes but there was also a view that these issues could also be addressed.
Several submissions noted that processes such as discussion, and family and community group conferences were familiar to Māori and other traditional indigenous justice systems. Four suggested that such systems also had parallels to restorative processes. The Children, Young Persons and Their Families Act was seen as moving towards, or having the potential for more restorative and more culturally responsive outcomes. One submission believed that family group and community group conferences were more appropriate for adults in cultures where family ties were stronger (such as Māori societies). Other submissions also noted the importance of whnau and community involvement to Māori.
However, restorative justice as a means of making the law more culturally relevant for Māori was explicitly rejected by some.
Recent reforms to children and young persons law and the introduction of family group conferences into this area are heralded as injecting a Māori dimension into this part of the justice system. The call for a restorative justice system justifies itself in a similar manner stating that such a system is more akin to Māori dispute resolution. We do not support the implementation of a restorative justice system on the basis of it making the law culturally relevant. Such justification ignores the call for pluralism in the law and diminishes the legitimate demand for tino rangatiratanga made by writers such as Moana Jackson. (Dunedin Community Law Centre, 5)
Another submission believed that a restorative justice model integrated with the justice system could be seen as a criminological advance but not as an institutional expression of Treaty partnership since:
...Māori processes cannot be in a position of subservience to Pākehā ones. (Auckland Unemployed Workers Rights Centre, 33)
Six submissions stated that in accordance with the Treaty (especially Article 2) and the principle of self determination, Māori should be free to develop their own justice systems or seek justice on marae. One submission viewed restorative justice as being in accordance with the Treaty as it was seen to protect the rights and property of Māori, while another mentioned that consideration of the Treaty should be a base objective of any restorative programme, and that the Crown's obligations to Māori must be honoured. Colonisation and the history of Māori in relation to the Treaty were also mentioned in two submissions as essential considerations when developing policy on restorative justice.
One submission stated:
Much research is needed in order that we are able to assess the cultural relevance of the proposed restorative process. The notion that the restorative process strongly accords with the concept of Tikanga Māori is unacceptable. (National Collective of Independent Women's Refuges, 107)
Others saw restorative justice itself located in indigenous sovereignty movements.
A total of 14 submissions made reference to Pacific peoples. Many of these commented generally rather than specifically in relation to various cultural traditions and the responsiveness of the criminal justice system. A number of submissions suggested that restorative justice had to be culturally relevant and that traditional practice should be looked at first as a way of achieving justice.
Two submissions were made from a Samoan perspective. One confirmed that the Samoan community was capable of restorative justice in its holistic sense and proposed practical joint ventures.
Our definition of restorative justice from a Samoan perspective encapsulates "relationship" in all its meanings. It encapsulates our culture, our spirituality, our gender arrangements, and the healing of relationships. Healing of relationships involves the support systems for victim and offender. Examples of these systems include extended families, churches, the traditional matai system and our community. We are keen to seek ways where we can work together to seek positive outcomes for victims and offenders, especially within the Samoan context. (Ete & 7 others, 92)
The other submission reinforced the importance of involving extended family, political and religious leaders and matai if restorative justice was to work for Samoan offenders. This also proposed a "Fautua" - a group comprising each race represented in New Zealand to sit at all cases of their respective peoples and advise judges on appropriate sentences.