Republished with Permission
Peter Williams
Writer and broadcaster for half a century. Now watching from the sidelines although verbalising thoughts on www.reality check.radio three days a week.
With the Parliamentary Select Committee process on David Seymour’s Treaty Principles Bill not far from starting, we should look carefully at a policy from the Solicitor-General’s office dated October 1.
Remember that Seymour’s prosed third principle, based on Article Three of the Treaty itself, says “all New Zealanders are equal under the law with the same rights and duties”.
What could be so difficult about that? The same rights and duties for all citizens and residents of a nation is surely the basis of a modern and liberal democratic society.
But on October 1, the Solicitor-General released what can only be interpreted as the middle finger to a government that was elected promising to removed special rights for any one particular group of New Zealanders. From what I can ascertain, there has been little or no follow-up or analysis of Una Jagose’s The Solicitor-General’s Prosecution Guidelines.
It starts off well enough.
The goal remains to ensure New Zealand continues to benefit from prosecution processes which are underscored by the core values of transparency, equality and fair application of the law to all participants, and reflect the legitimate public interest in prosecuting criminal offending.
So far so good.
But then this.
It is well documented that the criminal justice system delivers disproportionately adverse results for Māori, who are over represented as both defendants and victims.
The guidelines ask prosecutors to think carefully about particular decisions where a person (either the defendant or victim) is Māori, or a member of any other group that is disproportionately impacted by the criminal justice system.
It goes on.
Being Māori could correlate with deprivation or trauma that may be relevant to a specific decision although that does not mean that decision must be made in a particular way. The guidelines refer to Māori specifically because they are tangata whenua to whom the Crown has obligations under the Treaty of Waitangi/Te Tiriti o Waitangi. This reflects the Crown’s duties under the Treaty/Te Tiriti.
At least there’s a bit of an out towards the end of the S-G’s introduction.
Prosecutors, and the guidelines themselves, form one part of the overall criminal justice system; they cannot direct other participants (such as investigators, defence counsel and judges how to behave. Nevertheless, the decision to prosecute as the doorway into the criminal justice system is a critical decision point.
The basic tenet of the guidelines, and there’s a press release and 208 pages of guidelines, is that prosecutors should tread carefully when a case involves Māori.
There’s even a quote from our Supreme Court.
The experience of Māori is unique: no community in this country was deprived of its autonomy, internal cohesion and economic resilience in quite the way Māori communities were. One of the effects of that experience has been consistently disproportionate rates of Māori offending. That is why judges need to know about it.
You can see the problems here. The country’s highest ranking legal official is essentially saying that if you’re Māori and you’ve committed a crime there’s every chance your prosecution might not proceed.
The definition of racism is privilege for one ethnicity at the expense of another. If this policy is not suggesting legal privilege to Māori, I don’t know what does.
We all know of the allegorical personification of Lady Justice. She has scales and a blindfold. In other words she must weigh up the evidence from both sides of a case and then dispenses her decision without regard to wealth, power or other status – like membership of a certain ethnicity.
It’s a publication such as this from the Solicitor-General which makes discussion of the Treaty Principles Bill even more important, stressing more than ever the relevance of Seymour’s Principle Three.
Remember it reads: “ALL New Zealanders have the SAME rights and duties.”
Who could possibly argue against that?
The Solicitor-General seems hell-bent on doing so.
This article was originally published on the author’s Substack.
