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Dalziel: “What will Turn the Tide”


National Restorative Justice Practitioners’
Conference 2010
Closing Address
“What will Turn the Tide”


Hon Lianne Dalziel
Justice spokesperson

Brentwood Hotel,
Wellington
2.50pm

In keeping with the theme of your conference Restorative Justice: Turning the Tide, I have entitled my keynote address: “What will turn the Tide.” I thought I would begin answering that question with a quote:

“Our [prison] system simply fails to rehabilitate or deter, and our high recidivism rate is a clear indication of that failure. One reason for that failure is that imprisonment does not confront the inmate with his or her crime. For many inmates imprisonment represents no more than a period of monotonous and rigid routine which is coped with by living each day as it comes. Even though imprisonment is for some an unpleasant experience, few prisoners make clear or realistic connections in their own minds between their crime, its consequences and their incarceration. More often than not they emerge from prison older, harder and more bitter individuals, having rarely considered the suffering they have inflicted on their victims and their own families. Change is needed to ensure that inmates are confronted by the reality of their crime and its consequences for, unfortunately, the present penal system unwittingly ensures that responsibility does not have to be faced.”

This is a quote from the Roper Report into prisons called: “Te Ara Hou: The New Way” which was written more than two decades ago. It was Einstein who defined insanity as doing the same thing over and over again and expecting different results and yet that is precisely what we have done for two decades.
Now I can hear many of you thinking that I was part of a government that had nearly half of that time to address the very issue that the quote raises. But I am going to provide a context for Labour’s ‘tough on crime and tough on the causes of crime’ mantra as we headed into the 1999 general election – and that context is the 1999 citizens initiated referendum. The tragic images of Norm Withers’ mother after the cowardly and brutal attack she suffered had more than 300,000 people ready to sign the petition and even more to support the referendum that emerged. The referendum was worded:

"Should there be a reform of the justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violent offences?"

Almost 92% of the people who voted in the referendum voted yes – which is not surprising as it asks for three things off the back of reform that places greater emphasis on the needs of victims. Who could vote against it? Well I did, but not because I disagree with law reform that focuses on victims or restitution and compensation for victims – although I am deeply concerned about the lack of analysis around victims’ needs, but I will come back to that. I voted against it because I knew that it would interpreted as meaning support for the other two components – minimum sentences (which actually means serving the full term of finite sentences – so called truth in sentencing - and having longer non-parole periods for indefinite sentences) and hard labour, which has not one ounce of evidence to back it up as conducive to reintegration into society after the sentence is complete.

Let’s look at the needs of victims. My increasing ambivalence towards the phrase ‘tough on crime and tough on the causes of crime’ comes from its lack of focus on the victims of crime. Labour strengthened this focus with the Victims’ Rights Act being passed in 2002. But when these are analysed, they are focused on the legal processes – things like the right to be kept informed, the right to speak at sentencing and the right to be heard at parole hearings.
This was actually what the Chief Justice was asking us to consider when she gave her excellent speech Blameless Babes and which earned her a ticking off by the Minister of Justice, who I remain convinced hadn’t actually read the entire speech before admonishing her to leave the policy to the government. Her speech made a very salient point about whether direct assistance to victims might better meet the needs of the victims of crime than the current law which tends to focus more on providing a sense of ownership of the criminal justice processes. She suggested that there ought to be some serious research into whether the emotional and financial cost of keeping victims – as she described it – “in thrall to the criminal justice processes” actually helped their recovery from the damage they have suffered or whether they were re-victimised through these processes.

I think the importance of this statement cannot be overstated. If we are genuinely going to meet the needs of victims then we must first and foremost understand those needs. Restorative values and principles can provide a very firm foundation for how we respond as a community and as a government to the needs of victims. We simply cannot keep promoting the punishing, retributive model that does not allow for forgiveness or redemption, to the exclusion of all other needs. Unfortunately the current debate is framed as an “either/or” - you’re either hard on crime or soft on crime. But that is an incredibly narrow construct when you think of the range of issues involved, including some of the underlying personal issues or the undiagnosed or untreated conditions – drug & alcohol addiction, mental illness, brain injury, personality disorder - that one finds in abundance in our prisons. The public discourse on these issues is driven off slogans like ‘three strikes you’re out”, “truth in sentencing” and “life should mean life”. And slogans make great headlines.

I will see if you can answer a question I asked in Parliament recently: Who are Alexander Tokorua Peihopa and Whatarangi Rawiri? How about Phillip and Joe Kaukasi and Riki Rapira? Maybe this quote will help:

Michael was brutally murdered nearly four years ago by six thugs, including this country's youngest killer, Bailey Junior Kurariki.

The first two were the two young people who murdered Michael Choy and the other three were the others, like Bailey Junior, who were convicted of manslaughter – two of whom have since been paroled with no media coverage that I could find. It actually took me ages to track down their names, because story after story after story reports the events as I have just read out. The angel faced 12 year old was the image that the media highlighted, which meant that Bailey Junior received a much greater punishment than those who were far more culpable for their actions than he who pretended to be the customer when Michael Choy arrived. I am not minimising his involvement – he was part of a group that predetermined to rob a delivery person and he played a role in that – but despite all the coverage, he did not kill Michael Choy.

I am all for personal responsibility but what about parental responsibility and a wider sense of community responsibility encapsulated in that phrase – it takes a village to raise a child. He was 12 years old – not even old enough to babysit – when he was labelled ‘this country’s youngest killer’. Surely he was salvageable then – I really don’t know about now.

I heard the interviewer on Morning Report this week ask whether the media attention was part of the problem Bailey Junior was facing. That would have to be the understatement of the year, but there is another side to it. If I were Bailey Junior, I would be grateful to have someone else to blame for what had happened to my life, and the media have provided him with that. The reason I would be grateful would be because it would mean I wouldn’t have to own up to the fact that I was involved in a shocking, brutal and senseless killing of a young man going about his lawful business. How different would things have been if Bailey Junior had not been subject to this exposure? Sadly we will never know.

I am raising these issues, because for restorative justice to occur, the prevailing community attitudes need to change – we cannot keep demanding retribution without knowing what the consequences of that might be.
I am not saying that retribution is not important – punishment is part of the sentence, but at that point they are accountable only to the state for the crime they have committed. Would not we as a society want to know how such a crime could have come to be committed – not to excuse but to understand the circumstances that might allow such an appalling crime? Would we not want to explore whether any form of intervention may not have led this child and the other young people down a different path? Would we not want to ensure that when their sentences came to an end that they had the opportunity to atone for their actions and to be rehabilitated so as to minimise the risk of further offending? And would we not want to hold out the possibility of these offenders being accountable for their actions to the family of the boy who was killed and to express remorse? A single minded focus on retribution denies us the opportunity to even ask these questions.

Returning to the quote from the Roper Report, I have to admit that I cringe when I hear someone leaving prison with the expressed view that ‘I have paid my debt to society; I have done my time’, when they have done nothing more than that. Time-serving is not enough. Retributive justice is nothing more than that.

A lot is said about the philosophy of restorative justice, but I sometimes wonder whether there is an understanding that it has three parts. It requires the needs of the victim to be articulated and addressed; and it requires the offender to front up and take personal responsibility for their offending and to express genuine remorse for the harm they have caused. But it also requires the needs of the community within which the crime occurred to be addressed.

We too often see neighbourhoods or communities in a state of shock as a result of serious crime, or unsure who to believe when the victim and the offender are known in that area. I have a story that shows how powerful that can be which I will share in a minute. A sense of security is a basic human need, and the right to feel safe in one’s own home is an important part of that. Offenders must take personal responsibility for their crime and we as communities must take collective responsibility for the state of our communities.
We know that many of the environmental factors leading to crime are in our own family homes, and we as neighbours, families and friends need to share some of the responsibility if we are to minimise the risk of the worst happening. While individuals must face up to their offending, collectively we need to face up to the reality that is our backyard – we need to understand the consequences of allowing children to be “incubated in terror” as I have heard the impact of domestic violence described – because turning a blind eye is not an option if we want safer communities. It is the only chance we have as a community to stop intergenerational cycles in their tracks.

I attended the government’s Ministerial Drivers of Crime meeting which was held exactly one year ago next Saturday. After the meeting I did a lot more reading and listening to a range of experts following up on some who were there and others as well; I have talked to judges, academics, lawyers, police and community leaders. I was moved to take a proposal to the Labour Party caucus in May last year that we offer to work collaboratively with the government to address those underlying environmental factors by committing to evidence-based early intervention programmes for the 0-12 year age group.

I chose that age range because I could not in conscience go further in the face of legislative changes introduced by the government to give effect to what had been characterised by the government as ‘boot camps’ which have no evidence base to support them and to lower the age of criminal responsibility for a range of offences to 12 years of age – so we could have more Bailey Juniors to hold up as the country’s youngest offender in the particular category of crime.

My motivation in taking this recommendation to caucus was so that the NGO sector that dominates provision in this area could be assured of ongoing support for their programmes, coupled with the relevant funding, regardless of the three-year electoral cycle. And the other reason was because I believe the government sector should be held to account against the same evidence-based criteria for their programmes as the NGO sector.
It is not easy to agree to take the politics out of such a contentious area of policy, but I was persuaded by what I heard that day and had reinforced since that it was the only principled response we could offer to what appeared to be a genuine initiative.

The response from the government in November was “nice offer, but let’s see how we work together on the reform of our liquor laws first”. I was devastated; it was the first time in my 20 years in Parliament that I had experienced such an unexpected slap in the face from a Minister, who I had believed would be open to a collaborative approach to something so important. Naturally we are willing to work with the government on the outcome of the Law Commission’s report on Alcohol Issues when it is released – why wouldn’t we? It was a Labour government who commissioned it and I helped write its terms of reference.

But the failure to accept that there is a need to develop a non-partisan approach to addressing the underlying drivers of crime means we will continue to see the beat of the law and order drum drown out the call for early intervention; and one year on from what was an excellent initiative, nothing has changed. We have the government capitulating to their ACT coalition partner on the internationally failed “three strikes” law, which has no deterrent value at all. We know that deterrence only works when the crime is a calculated risk – that’s where you weigh up the risk of getting caught and the consequences that follow on the one hand and the benefit of the crime on the other. That’s why deterrence is best utilised for ‘white collar crime’. So I am not opposed to using sentence as a deterrent – 150 years for Bernie Madoff and his ilk is ok by me.

In politics there is a characteristic that is hardly ever mentioned and that is courage. What you do every day as Restorative Justice Practitioners is courageous. You mediate a resolution between two or more people that is so deeply personal that only you can really understand the meaning that it can add to the lives of those involved. I have visited Restorative Justice Services throughout New Zealand over the years and I have heard stories that are truly uplifting and inspiring.
For small town New Zealand, where victim and offender are likely to see each other in the street, the ability for the victim to control a process that leads to the restoration of what has been lost cannot be overstated. But let me share a story that occurred outside the Restorative Justice system, but which had all the features of what that offers. I was told this story several years ago while visiting a prison, which I won’t name.

A woman approached the prison to ask if she could meet the two men who raped her as they were soon to be released and would be returning to the area where she still lived. Her issue was that they had always maintained their innocence and the town remained divided into those who believed her and those who believed them. The prison was reluctant but finally agreed. She confronted them with the fact that they knew they had committed the crime and that they had served their time. Maintaining their innocence was only damaging to her now and hadn’t they done enough to her already. All she wanted was for them to admit their crime – which they did. She left that prison with her personal integrity restored, something that they had robbed her of at the same time as they denied the rape.

This is a powerful story of courage and something that has always driven my passion for developing a justice system that is capable of producing real justice.

So what will turn the tide? The answer can be summed up in that single word “courage”. The courage of whichever party leads the government to work collaboratively across party lines to put in place the foundation for early intervention and to stop the beat of the law and order drum; the courage to stand up to the slogans that drive the law and order debate and focus on the evidence;
the courage to secure funding for Restorative Justice Services as an integral part of the shift to a community focus for our justice system – this was identified in the 2004 Law Commission Report: Delivering Justice for All – and will be a feature of our policy going forward; the courage of the fourth estate to set aside the commercial interests that drive the over-sensationalism of crime in favour of the interests of fair,
balanced and accurate coverage of crime and its causes & effects, because that will help turn the tide of public opinion – not away from retribution – punishment is an important part of any sentence – but towards a future enhanced by the restorative justice values and principles we would want for our own children if they ever strayed across the line; and finally the courage to speak out about our own responsibility for the society we have become.

And on that note, let me conclude with another quote from another Roper Report – this time the Ministerial Committee of Inquiry into Violence, also over 20 years old.

“The public through the submissions made to this Committee, has expressed its concern at the increase in violence and has called on it to find solutions. It is not unfair to say that the public now has the community it deserves. For the last two or three decades permissiveness has gone unchecked; domestic violence is rampant; the ‘macho’ image has been encouraged by advertising for commercial interests to the detriment of women; aggressive behaviour and violence in ‘sport’ has become accepted; pornography has become accepted as the norm, as has violence in the visual media; racism has increased; economic inequality with its attendant stresses and frustrations has increased; illiteracy and lack of parenting skills are common and awareness of spiritual values is sadly lacking.”

This is a powerful piece of text, and can be found in the report under the heading ‘the Unpalatable Truth’. It is unpalatable, because it tells us that we are all responsible for the kind of society we have today, and I say today, because those words could have been written today. This section of the report ends with the phrase: “No one can afford to be complacent about the problem. Violence occurs by acts of commission and omission and we are all responsible.” And we are.

ENDS


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