The justice minister told Cabinet his policy to remove taxpayer funding for cultural reports for offenders would likely disproportionately affect Māori and may put more Māori behind bars.
Cabinet documents and a departmental disclosure statement released by the Ministry of Justice make clear that Māori and Pasifika are more reliant on funded reports. Around 14 percent of Māori offenders and 11 percent of Pacific offenders receive taxpayer funding for these reports, which inform judges about the individual’s background and how it may have influenced their offending ahead of sentencing. Just 7 percent of other offenders have their reports publicly funded.
“Māori are overrepresented in the criminal justice system. The funding change may exacerbate this disparity,” Goldsmith wrote in a Cabinet paper on the policy.
This could also have knock-on effects on Māori communities, he noted.
“Should the proposal result in fewer sentence discounts, or offenders funding reports themselves, there may be flow-on consequences for families and whānau, particularly for Māori tamariki (children) and rangatahi (young people),” he wrote.
“Research shows that children with a parent in prison are 10 times more likely to be imprisoned in the future than are non-prisoners’ children.”
However, no authoritative statements could be made about the impacts of the legislation, officials wrote in a departmental disclosure statement, because “due to time constraint no steps have been taken to conclusively determine the effect of the Bill” on Māori.
Māori legal experts raised these concerns when National announced the policy during last year’s election campaign.
Tara Oakley and Rebecca Cupples, who work for cultural report company Sentence Equality, wrote after the election that Māori would be disproportionately affected by the move.
“The ongoing tragedy of Māori over-representation in court means defunding these reports has a disparate, negative impact for Māori who will suffer significant harm by the incoming government’s proposed actions.”
Labour’s justice spokesperson Duncan Webb said the move would take important options away from poor offenders but not rich ones.
“This advice in this document is entirely unsurprising. And I guess that this minister has chosen to ignore it is also unsurprising,” he said.
“Those reports can be a useful tool. If there were problems with them – and there were perhaps some that weren’t high quality – there’s other ways to address that. What they’re doing is taking away a really important piece of information, but they’re only taking it away from poor people. Rich people can still have it. That’s really disappointing.”
In the Cabinet paper, Goldsmith argued future amendments to the Sentencing Act, which have yet to be specified, could mitigate the impact of the policy on Māori. Another 100-day commitment to allow prisoners on remand to access rehabilitation programmes could reduce Māori overrepresentation in prisons as well, but it wouldn’t specifically help offenders who have lost access to the cultural reports.
Goldsmith also told Cabinet he had not had time to consult with Māori on the change even though there was “a strong Te Tiriti o Waitangi/the Treaty of Waitangi-based argument that Māori should, at the very least, be consulted”. Only Te Puni Kōkiri, the Ministry of Māori Development, was consulted – they did not support the policy.
He expects the policy could receive attention from ongoing Waitangi Tribunal inquiries.
“If the law change is found to perpetuate current inequities experienced by Māori, there are likely to be concerns about its consistency with the rights of Māori to equitable access and outcomes in Article 3 of te Tiriti o Waitangi,” he wrote.
“The issues of alleged discrimination and institutional racism in the sentencing process and legislative provisions is included in live claims filed with the Waitangi Tribunal in Te Rau o te Tika – the Justice System Kaupapa Inquiry (Wai 3060). There will likely be scrutiny of the use and funding of section 27 reports by the Waitangi Tribunal as part of the response to the Kaupapa Inquiry, with a possible focus on any disproportionate impacts on Māori due to
legislative changes.”
In the departmental statement, officials also said it was unclear whether the proposal might violate the International Convention on the Elimination of All Forms of Racial Discrimination, if it did indeed lead to more Māori going to prison.
The changes were still needed, Goldsmith argued in the paper, despite these impacts.
“I am concerned that in recent years a ‘cottage’ industry has emerged with the purpose of obtaining sentencing discounts for offenders in a way that was never envisaged when the relevant legislative provisions were introduced. Instead of a person known to the offender speaking on their behalf, there are now formal reports costing thousands of dollars each, with resulting legal aid costs that have increased from almost $0.02 million in 2017 to approximately $7.5 million in the past year,” he wrote.
One option officials are now looking at is the possibility of creating guidance for offenders to help their whānau and communities provide cultural background information to the court without paying for a report. According to the Sentencing Act, there’s no requirement the material come in a written report, only that the court “hears” it.
In addition to the impacts on Māori and Pacific offenders, Goldsmith told Cabinet the policy could worsen the backlog of criminal cases in the courts. Defence lawyers may turn to other publicly funded tools, such as psychologist reports, to provide background to judges ahead of sentencing. These reports take more time to prepare and could see more frequent adjournments and interruptions to court schedules.
“Absent legal aid funding for section 27 reports, Crown Law Office and the [Public Defence Service] confirm there is a real risk of increased adjournments to allow the section 27 factors to be addressed and that this may have substantial implications on efforts to clear the backlog of criminal cases, particularly within the District Court,” Goldsmith reported.
Webb said he expected to see court delays lengthen.
“Whereas you can get these contextual reports from sociologists or cultural experts, now you’re going to get them from someone else and the only real available option is a psychiatrist.”
No judge would schedule a sentencing for one month’s time when the psychiatric report was going to take six months to come in, he said.
Goldsmith declined to be interviewed by Newsroom for this story. In a statement, he said no further consultation with Māori had been undertaken as it wasn’t “necessary”, and didn’t specify how the Sentencing Act might be amended in the future to mitigate impacts on Māori.
“Māori are disproportionately likely to be the victims of crime, so steps we take to ensure appropriate consequences for criminal behaviour are ultimately in everyone’s best interests.”
Goldsmith’s words in the last paragraph are at odds with what he has noted earlier, and it sounds like doublespeak. Where is the evidence that removing cultural reports “ensures appropriate consequences for criminal behaviour”? And, it is ‘in the best interests’ of Māori to have more Māori in prison? Really? And then there is the question of further clogging up courts, with that “real risk of increased adjournments”.
How can the comments by Minister Goldsmith reported in the last two paragraphs be reconciled with his cabinet paper (paragraphs 3 and 13 to 16)? They seem to be in complete contradiction.
Good on Goldmith for explaining negative consequences of changes! [A rare political move]. Justice, from policing to parole to legal aid, must be ‘blind’ to race, religion, etc. in a developed country.
It sounds as if the gravy train (that was initially set up to assist appropriate sentencing) is grinding to a halt. That’s good, it needs to be scrutenised. It doesn’t take very long to read the file on a person of interest, and it doesn’t take long to see the conditions that person lived in, or has struggled to cope with. The Maori element in arguments like this is a fog that needs lifting. Because the way you live…housing, parenting, financial status and friends – including schooling ; all affect everyone – not just Maori youth. I was volunteer at Kohitere (Levin) in the 1990s – and looking at a person’s file was extremely depressing. But also extremely useful in understanding where/how each boy was formed (including any injustices that he may have sustained!). Yes, mostly Maori – but not because they were brown, but because a series of slips in the Welfare system did not catch them in time. These boys were “old enough to know better”….but still set in childhood dreams never fulfilled or supported by the adults around them. So a report on the background of the accused is imperative if justice is really to be done. A supportive person speaking about the background to the ‘crime’…would shed some light for the next fair and compassionate move by those in power. Recognizing the behaviour standards that formed the life of the accused person is the first step to Justice being done. The judge won’t know until he is informed!
I am increasingly feeling sympathy with National MPs who are going to be hoist by their own petard as their CEO has to kowtow to the demands of his partners – a lot like supping with the devil . Good luck NZ – we are going to need it .