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 1980s. The more formalised and conscious movement was not to develop until the early 1990s 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 1990s 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.
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.
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