Sir Joe builds a bridge at inspiring Robin Cooke Lecture

The Honourable Justice Sir Joe Williams delivered an inspirational 2019 Robin Cooke Lecture to not one, but two packed Old Government Buildings lecture theatres at the Faculty of Law on Wednesday 4 December.

As the first ever Māori judge ever appointed to the Supreme Court, alumnus Sir Joe (Ngati Pūkenga, Waitaha and Tapuika) spoke about the role of colonial dispossession in contemporary indigenous offending in a lecture titled ‘Build a Bridge and Get Over It.’

Sir Joe described the opportunity to give the Robin Cooke Lecture as a terrifying thrill, saying, “Lord Cooke saw law as a fabric, as a tapestry, I know it sounds like a cliche, but he really did. You saw it in his judgments and in his extramural writing, and that was the kind of lawyer I always wanted to be. That’s why he was one of my great legal heroes.”

He began his formal lecture with a story, one of a 19-year-old Māori offender named Dawn who had a “criminogenic whānau”. Between her alleged offending being committed and trial, she became pregnant, and before sentencing she had a baby and turned her life around. The judge chose to punish her offending by a sentence of three-years of imprisonment, and her baby was removed from her at court. Sir Joe chose this story because it represented “everyday offending of its kind, and an everyday offender of her kind.”

Sir Joe has had two very different judicial careers. The first was in the Waitangi Tribunal and the Māori Land Court, both of which (the Waitangi Tribunal in particular) have seen him “fix his gaze on our colonial past”. The purpose of those jurisdictions was to make a positive contribution to tribal development. In one way or another, the governing statutes required him to take this approach. He said that “I cannot say I always achieved it, but I can say that I always tried to”. His second judicial career he is still in, that is his work as a judge in the mainstream courts, and particularly his work when exercising criminal jurisdiction at trial and at the appellate level, which in the lecture was an area he wished to address. Here, he said, his focus has been on ensuring that the defendant receives a “fair trial according to law and, if convicted, a just sentence”. He notes, “the impact of that work on the Māori community and, I include there my own individual contribution to it, can only responsibly be described as destructive, even catastrophic”.

He stated Māori incarceration statistics—Māori make up about 16 percent of our general population, but 38 percent of those charged with a crime, 42 percent of all adults convicted, and 57 percent of adults sentenced to prison—and compared it to incarceration levels for indigenous populations in Australia and Canada, and African-Americans in the United States.

There is another troubling, and related statistic he raised: nearly 70 percent of children subject to care and protection orders are Māori.

Sir Joe then explained the myriad sources of postcolonial trauma, highlighting physical loss due to population drop, combined with psychological trauma thanks to the removal of independent agency, to answer why Māori are still struggling with criminality.

He said, “The consensus in social science is that trauma, if it is severe enough, can transfer intergenerationally. The loss of Māori land was a hugely debilitating loss of land and dignity.”

He carried on to explain that as Māori land was sold by their grandparents, the 1960s saw 70 percent of Māori living in urban centres, creating a loss of the village community which had helped their resilience during times of deprivation such as the Depression. The first urban-born generation of Māori was the largest cohort in the known “history of the race”, he said, and was integrated into cities “in which they were a visible and self-conscious minority,” with Government policy promoting assimilation.

“Many village-born Māori parents accepted the pākehā orthodoxy, feeling they had no choice but to accept their own cultural obsolescence. The result was catastrophic; the rise of an unprecedentedly large generation of brown, anglophone, culturally lost, teenagers.”

Sir Joe stated that in the 1970s, when half of the Māori population was under 15 years of age, one in 14 Māori boys was removed from their families and placed in Social Welfare-run boys’ homes.

“Almost all of them graduated to adult prisons in due course. Of the Māori males in that generation, 40 percent served a prison sentence by the age of 35. Behind these stories is the story of the rise of the Māori gangs. In short, the story of the breakdown of the cultural and social fabric, and its replacement with noxious substitutes.”

As a result of the economic reforms and restructuring that emerged during the 1980s, poverty and welfare dependency became entrenched and intergenerational, as the factory jobs disappeared, and unemployment became widespread. The only light to be seen was the fruition of Treaty settlements, and the establishment of kōhanga reo. “Ironically, those elders who staffed the kōhanga and kura kaupapa were often the railway workers who had lost their jobs in the 1980s and found their formerly ‘irrelevant’ te reo and tikanga expertise had some value.”

The way in which intergenerational trauma has dispossessed the Māori people is beginning to be recognised through section 27 of the current Sentencing Act, which requires the sentencing judge to take into account the racial and cultural background of the offender. The predecessor to this was section 16 in the Criminal Justice Amendment Act of 1985, and this required the court to hear from those who wished to speak for the offender about their background.

“This was an attempt to create a pathway for the offenders’ community into the sentencing process and was designed to address the disproportionate Māori imprisonment rate, which at that stage was a ‘mere’ 40 percent of the prison muster,” said Sir Joe.

Sir Joe highlighted the similarities between the legal responses to indigenous background requirements in Australia, Canada, and New Zealand.

He noted, “In my experience, judicial attitudes to the materiality of culture and background to sentencing fall somewhere on the spectrum between two points. At one end, judges who see it as their function to do all they can to alleviate systemic overrepresentation, who believe deeply in the power of redemption, and who accept that the provisional information about culture and history is essential to sentencing.

“At the other, there are those who are structurally skeptical about these issues, fail to see how they could be relevant except in very few cases, and believe references to a distant and traumatic past will lead to undermining the basis of the whole sentencing theory of free agency. “Most are situated somewhere around the middle.”

In Canada, the Criminal Code section 718.2(e) served a similar function to our section 27, and saw a landmark case in 1999 give rise to the Gladue principles, similar to New Zealand’s Matariki courts, generating a requirement for special background reports when indigenous people were to be sentenced.

Our landmark case was R v Mika, where Mika argued that he ought to get a 10 percent discount off his sentence due to the social deprivation he suffered as a Māori. This was declined at the time, but since this case, Māori imprisonment rates have risen sharply, and judges have become more active in requesting background information about indigenous offenders in New Zealand.

Sir Joe explained that a tipping point came in 2018, in the case of Solicitor-General v Heta, which saw a 30 percent discount of sentencing, judged by Justice Whata. “Heta produced a significant change in sentencing practice by the sheer power of its reasoning, the question is now whether the resources and infrastructure will follow its lead.”

In reference to an opposing judgment made by Justice Downs, he said, “Trauma in a person’s living or more distant past doesn’t guarantee the person will become an offender. This is dehumanising, reducing a person to victimhood and nothing more, and it denies their mana. Agency doesn’t come in one single unvariable quantum. It can be fettered or unfettered without losing its character.”

He pointed out, however, that 85 percent of Māori boys who were placed in abuse-ridden state homes in the 1970s graduated to jail. “Can it really be said then that people with that particular background were capable of leading law-abiding lives? The numbers suggest that they were quite incapable of doing that.

“A proper rehearsal of those histories allows sentencing judges to calibrate to the best of their ability the degree to which free choice has been fettered by trauma, either directly experienced, or inherited.

“Without a thorough knowledge of an offender’s background there can be no perspective, only myopia.”

Sir Joe points out that none of the guideline judgments of the Court of Appeal used in sentencing took into account systemic deprivation, up until R v Zhang, which focuses on social and economic deprivation.

The first four of the court’s five points in that case were:

  1. Ingrained and systemic poverty are relevant to matters of choice where they are causally linked to the offending. This includes mana and rangatiratanga.
  2. Experience tells us that culture aids rehabilitation.
  3. Section 27 should be how relevant information gets before the court.
  4. Section 25 and section 27 ought to be available to all New Zealanders irrespective of ethnicity.

“It has not gone unnoticed that the court couched its sentencing of Māori offenders in terms of mana and rangatiratanga, as well as land, language, and culture. I see the court’s deployment of these terms as a sign of willingness to reach across the divide and place itself within te ao Māori. The significance of this cannot be overstated,” said Sir Joe.

To introduce these terms, he says, is to begin to normalise Māori ways of thinking and being. “Te ao Māori ceases to be other.” Zhang may be seen as the early scaffolding of the bridge we need to maintain active working partnerships between iwi and the crown.

“Right now, the system speaks with two mouths. One speaks of healing the past, Treaty-based reconstruction, and a newfound partnership between iwi and the Crown. That mouth speaks quite genuinely with hope and optimism. The other speaks of destruction on an unprecedented scale, using the powerful rhetoric of the sentencing act. Neither voice has the space or inclination to listen to what the other is saying. They need a bridge.”

Te Arawhiti, the name of the Office for Māori-Crown Relations means, ‘the path for crossing over’. Its job is to maintain active working relationships between iwi and the Crown, and ensure the Crown meets its Treaty obligations. “Te Arawhiti needs to build some bridge extensions, some clip-ons” to create a bridge between iwi and sentencing judges. “And let’s not forget the victims, nearly half of which are Māori.”

“Section 27 is a means of engaging with the resources of the child or offender’s community, those who have what the state doesn’t with the offender—an intimate relationship. If the Crown can recruit that, we could change many lives. This is a win-win. The Crown solves stubborn and significant social problems, the iwi become what they once were—a significant institution in the lives of their people.”

Reflecting on Dawn’s situation, Sir Joe said, “If this type of agency existed earlier, perhaps Dawn would not have ended up in jail away from her baby, and the historical trauma within her whānau was allowed to heal.”

The only way to change the status quo is to build bridges and get over them, said Sir Joe.  “I think we are heading to a place where no child will be removed, and no Māori offender jailed, without advice from that person’s iwi or their community for their back story.”

The lecture ended with a standing ovation from both lecture theatres, accompanied by two waiata expressing aspiration and hope, one the waiata of Ngā Rangahautira, and the other Tūtira Mai Ngā Iwi.

The Robin Cooke Lecture was established in 2001 in honour of the late Lord Cooke of Thorndon. Lord Cooke was a Victoria University of Wellington Law alumnus and New Zealand judge, and later a British Law Lord and member of the Judicial Committee of the Privy Council. He is widely considered one of New Zealand’s most influential jurists and is the only New Zealand judge to have sat in the House of Lords. Several members of Lord Cooke’s family were in attendance at the lecture.