LEGAL SERVICES AMENDMENT BILL

Second Reading

Hone Harawira, Te Tai Tokerau

Tuesday 14 March 2006

For years, Maori have had to go to Court, without decent legal representation, and often without legal aid. The Legal Services Amendment Bill says it will change that, by making it possible for another 435,000 people to get legal aid, many of whom undoubtedly will be Maori.

And the government is to be commended for their efforts in this regard.

The tragedy of course, is how many Maori actually wind up in Court in the first place.

We already know that Maori get arrested, prosecuted, convicted, and jailed at much higher rates than non-Maori, confirming last week’s report on Human Rights Practices in New Zealand which noted a:

"continuing pattern of disproportionate numbers of Maori on unemployment and welfare rolls, in prison, among school dropouts, and infant mortality statistics”.

In the same week, the Ministry of Justice also released their Prison Forecast, which projected that by 2010, Maori will be the most imprisoned people per capita in the world.

Now there’s a statistic that bears repeating - by 2010, Maori will be the most imprisoned people per capita in the world.

So yes, Mr Speaker, like it or not, the way things are going, Maori are going to need Legal Aid like never before. So when the Maori Party looks at this Legal Services Amendment Bill, we ask the questions do so with one focus - how will this Bill change things for Maori?

Well, sad to say, only seven submissions were received, four heard, and the whole Select Committee process was over in less than a day - hardly a good look for a government promoting access to justice.

The changes in this Bill are intended to increase the number of legal aid grants, and the number of people who can get legal aid, and thereby give people far better access to justice than before.

That principle is important, because the Maori Party does not share the view of other parties in this house who stupidly think that filling up the jails is the measure of the success of the justice system.

Mr Speaker, it is our deepest wish to reduce the number of Maori who are arrested, convicted and imprisoned. We want to enhance the mana of all people, by promoting a system based more on justice that heals than justice that hammers.

Sure - punishment must be a part of justice - no question. But what is the value of a system that punishes but does not change the offender, except to make him worse? What is the point of a system that actually encourages offenders to be more devious, more brutal, and to be less caring, the next time they offend?

Folks - it’s not about getting even, it’s about getting justice. It’s about whanau. The whanau of the victim, and the whanau of the offender. Punishing one without properly addressing the other serves no-one. It’s about taking the next generations into account.

But every time I think of that statistic - that by 2010, Maori will be the most imprisoned people per capita in the world, I know that this Bill will not make any real change at all. Mr Speaker, the Maori Party supports any genuine attempt to help people get access to justice, but this Bill is really just tweaking a system that is intrinsically unsound.

It would be great if we could say that this Bill could turn around that damning statistic about Maori being the most imprisoned people in the world by 2010 but I suspect that you, me, and everyone else in this House knows it ain’t going to happen

Mr Speaker, improving the administration and management of legal aid is a step in the right direction, but even with the best intentions, the lawyers you get through Legal Aid, are mainly just the legal bunnies - the new lawyers. Their enthusiasm does not compensate for their lack of experience.

Experienced lawyers refuse legal aid cases, because there isn’t any money in it, which means that in the normal run of things, defendants on legal aid get less value than people with a bucket load of money - and how surprising that isn’t.

Mr Speaker, every Maori in this House has whanau who have ended up in court with lawyers whose aim seems to be to get their Legal Aid cases out of the way as soon as they can - often by persuading their clients to plead guilty. And I know people who have pleaded guilty because they didn’t even know they can get Legal Aid in the first place; and I also know people who have pleaded guilty because their lawyers told them it was the best thing to do. How do I know this?

Because Mr Speaker, I have been to court and defended myself many times, and during that time I have seen the poor, the Maori, and their Pacific cousins, being treated like scum by those who have been charged with helping them. I have seen people look despairingly at their lawyers in the courtroom to talk to them, and I have seen those Legal Aid lawyers simply drone on like their clients weren’t even in the room.

I have seen people with the desperate look of the innocent, turn their heads to the floor when they finally realised that their Legal Aid lawyers were more interested in their own performance than in the plight of their clients.

Mr Speaker, I have seen people lose their freedom because their bumbling, and often uncaring Legal Aid lawyers were just too lazy to do their jobs properly.

Mr Speaker, our criminal law is based on the private property values of British and Western history, and even this Bill suggests that "the definition of an applicant’s income is subject to the resources of a spouse or partner, of parents and resources relating to Maori land”.

The Maori Party rejects the notion that land handed down through collective whakapapa, should be divided for consideration of an individual's income. It is a racist notion that all decent citizens should be appalled at.

I also see that the Bill aims to determine legal aid based on the likelihood of somebody going to jail. Now that’s got to be a little suspect. Does that mean that the Legal Services Agency will be taking over the role of judge and jury and making its decisions BEFORE somebody even enters a plea? Or is this some screwy notion to deny legal aid to people “who may go to jail”, as if that can be determined before pleas are entered.

I also note that surveys will be used to monitor progress in the legal aid system. That’s alright but the real measure is not the administration, but reducing re-offending, and improving the situation for those who need it most.

And of course, one of the major areas of contention, and indeed one of the birthrights of the Maori Party, the Foreshore and Seabed Act actually denies Maori access to Legal Aid, and this Bill does nothing to change that.

This, Mr Speaker, is a criminal denial of the rights of a major sector of our community. No other group in our nation ... not the unions, not the employers, not our Asian cousins, not our Pacific relations, and certainly not our Pakeha whanaunga ... no other group in our nation EXCEPT MAORI, are denied access to Legal Aid - and I repeat, no other group in our nation EXCEPT MAORI, are denied access to Legal Aid.

How can we in this House, we who represent what is supposed to be an enlightened and educated society, we who talk about fairness and justice for all, even contemplate an environment where a major sector is denied the rights that generations fought for over so many centuries?

Indeed, how can we accept such an abuse of a people’s human rights, and move so glibly by?

These are critical issues which this House must address, at this level, and at every other level in society.

Mr Speaker, our courts are mono-cultural, and their language and procedures deny Maori access to justice. If we are serious about real access, then one of the key issues we need to address is that of cultural bias.

In 1988, Moana Jackson of the Wellington Maori Legal Service, reported that Maori cultural values were not reflected in criminal law.

That was confirmed when in 1992, Gina Rudland, President of the Maori Law Society, told the Minister of Justice, that "what is needed is a parallel system that allows justice to be achieved for Maori by Maori."

And in 1993, Aroha Terry suggested marae trials for child abuse offending. All of these suggest we should explore different justice systems, and that we genuinely take up the idea of Maori practices, and let’s face it - we can hardly do worse than what we got now.

For more than 1000 years Maori have had their own justice system; one based on concepts of Tapu and Noa, and which recognises peoples responsibility to the wider community, and the community’s responsibility for its members.

The Pacific practice of ifoga is similar to marae justice. The Navaho people of Great Turtle Island have their own justice system which they share with the state, but based on Navaho philosophy and procedure.

And over the Tasman, Aboriginal Courts and systems are being used to try to reduce their arrest, conviction, and prison statistics.

Indigenous people may not have all the answers, but current systems obviously aren’t working - not for indigenous people, nor for society at large.

This Bill is a stop-gap. An admirable stopgap, but a stopgap nonetheless.

The Maori Party opposes this Bill because while it purports to address the issue of access to justice:

- it accepts the ridiculous “jail-em-at-all-costs” thinking which has led to the spiralling arrest, conviction and imprisonment rates that have over-run our justice system

- it does not address the very real need to reduce the reasons behind the fundamental problems in our society,

- and because it deals with individual rights while continuing to deny Maori their collective whanau, hapu and iwi rights and in fact their human right to the same measure of justice enjoyed by all other citizens in Aotearoa.

ENDS

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