The remand crisis is disproportionately affecting Māori – now one wāhine has mounted a legal battle against the bail laws exacerbating the problem, Laura Walters reports

A former prisoner, turned justice reform advocate, has mounted a Waitangi Tribunal claim, alleging the 2013 bail law changes breach Te Tiriti o Waitangi and are causing significant prejudice to Māori.

Awatea Mita’s claim, which was filed with the Waitangi Tribunal in September, says the Bail Amendment Act 2013 is one of the key drivers behind the growing proportion of people being held in prison on remand – awaiting trial or sentencing.

The prison population is currently sitting around 9000, with almost 40 percent of those people being held on remand.

Before the law changes, which reversed the onus of the burden of truth in some situations and made it harder for alleged offenders to get bail, the remand population was about 27 percent of the total prison population.

In real terms, the number of people on remand has more than doubled since the law was introduced.

Mita, who went to prison for a non-violent drug crime, has filed the claim on behalf of “Māori remand prisoners, and Māori generally”.

While Māori were over-represented throughout the criminal justice system, including in prison, she said they were disproportionately affected in terms of remand.

“Māori are and will suffer the disproportionate burden of this crisis.”

Māori make up about 52 percent of the prison population, but 16.5 percent of the general population.

Māori make up 56 percent of the remand population.

In her claim and affidavit, Mita says while she understands the remand crisis has been caused by a collection of complex and systemic issues, the 2013 legislation is a key driver.

The claim alleges the law change failed to actively protect Māori citizenship rights contained within the New Zealand Bill of Rights and international laws, including the right not to be arbitrarily detained, the right to be presumed innocent until proven guilty, and the right to be released on reasonable terms and conditions unless there is just cause for continued detention.

Mita said the legislation also failed to actively protect Māori interests by subjecting Māori to unnecessary remand stints, and the Crown failed to exercise good government in developing the act.

There was a remand crisis and it was projected to get significantly worse over the next five years, she said.

“Māori are and will suffer the disproportionate burden of this crisis.”

Mita said she understood the problem could not be fixed overnight.

“However, changing the law to ensure people are only deprived of their liberty when it is entirely justified would, I believe, go a significant way to reducing the remand population.”

Mita’s lawyers said while there may be other additional causes driving remand numbers, it was clear that one of the primary causes was a piece of legislation which infringed on fundamental Māori citizenship rights.

They asked for the tribunal to hear the claim as an urgent, focused inquiry.

“It is indisputable that the remand population has skyrocketed since the 2013 amendments,” her lawyers said in the application for an urgent hearing.

However, the Crown said the claim should be heard as part of a wider kaupapa inquiry into the criminal justice system, rather than a narrowly focused inquiry into one piece of legislation.

The Crown lawyers said they acknowledged the disproportionate impact of an increasing remand population on Māori.

“This issue along with other issues concerning Māori in the criminal justice system must be addressed,” they said, adding that the tribunal had an important role in this.

“But the Crown says that the issues raised by the claimant’s claim are systemic, complex and ill-suited to exploration simply by reference to the 2013 Act, or the bail regime as a whole, in isolation of all the interconnected components of the Criminal justice system and associated social and other sectors.”

The Bail Amendment Act 2013 has come under increasing scrutiny by human rights advocates and justice reformers.

The law was changed after 18-year-old Christie Marceau was murdered by Akshay Anand Chand when he was on bail.

At the time, the government was incorrectly told the changes were expected to affect about 350 people a year, and mean a further 50 prison beds would be needed. 

Instead, the remand population ballooned following the introduction of the new law, and is part of a self-perpetuating cycle of high remand numbers, court delays and barriers to justice.

Mita (Ngāti Porou and Ngāti Pikiao) was imprisoned in 2013, and describes the experience as dehumanising.

In her claim, she talks about the normalisation of violence in prisons, and the impacts imprisonment and remand have on a person’s likelihood of successful reintegration versus recidivism.

She also talks about the impact on whānau and dependents of the person imprisoned.

Since being released she has advocated for prison reform in various areas including voting rights, the remand population increase, and the rights of Māori women.

Mita studied psychology, criminology and te reo Māori, and is currently completing her honours in criminology.

The tribunal is yet to make a decision on whether the claim will be heard urgently.

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