Judicial Functions On Marae

 Colin Keating, Secretary for Justice

 Ki te mana, te Minita, nga mema o te whare paremata, nga mana, nga reo, nga karangatanga maha, tena koutou, tena koutou, tena koutou katoa.

 I have been asked to speak on the question of “Judicial Functions on Marae”. I want to be quite clear at the outset.  This will not be a speech about policy.  Policy directions are set by the Government and we are most fortunate to have as a key speaker at this forum the Minister for Courts, the Hon Georgina te Heuheu.  What I can do, as a senior public servant, is to provide you with the benefit of some of our research, to explain the law as it currently stands, to fill in some of the historical perspective and discuss some of the practical issues.


What are Judicial Functions?

 When we talk about judicial functions it is important to define exactly what functions are involved.  Judicial functions obviously include the regular sittings of courts.  But they may also include such functions as those undertaken by certain tribunals which have judicial characteristics and by coroners.

 Some History

 In early colonial times, both European settlers and Maori seemed to acknowledge that each people gave different weight to various behaviors that offended community norms.  Pakeha were surprised at the stern Maori attitudes to offending wahi tapu, cursing and adultery.  Maori leaders for their part were astonished that petty theft could lead to a gaol sentence - a form of punishment they considered barbaric.  The Ngati Tuwharetoa Chief, Te Heuheu Tukino said of petty theft that a great chief would take no notice.  In cases of more serious offences against property Maori felt that payment of compensation was an adequate sanction.

 It is noteworthy that in those days there was no attempt to impose the full complexity of the British judicial system on iwi and hapu.  There was a feeling that the wide gulf in values and customs would have made attempts to impose unmodified English codes on Maori not only imprudent but also unjust.

 Lord John Russell, Secretary of State for the Colonies, in his dispatch to Hobson transmitting Letters Patent for the Administration of the Government of New Zealand as a Separate Colony wrote that

Maori were a people among whom the arts of government have made some progress; who have established by their own customs a division and appropriation of the soil,- who are not without some measure of agricultural skill, and a certain subordination of ranks, with usages having the character and authority of law.


Russell instructed Hobson to develop positive declaratory law authorising the executive to tolerate local customs since

         ... the analogies of the laws of England, as administered among Englishmen, whether at                 home or abroad will, in many respects, be bound to fail.

 Because differences were recognised, magistrates in the middle of the 19th century tended to fine Maori offenders.  It was also common to deal with cases without a formal hearing.  This involved securing payment of compensation rather than sentencing. With the benefit of hind-sight, we can now see that those magistrates were using techniques which we might today call “diversion” or “restorative justice”.  Four ordinances in 1844 modified the law to accommodate Maori tikanga.  Among other things, the Native Exemption Ordinance allowed that, in criminal cases other than rape or murder, a Maori offender could be released at large on payment of 20 pounds - to be paid to the victim if the accused did not appear for trial.  A Maori convicted of theft could avoid gaol on paying four times the value of the goods stolen.  These funds could then be used to recompense the victim.

 Iwi and hapu leaders saw to the payment of these fines: However, it is also noteworthy that Maori offenders who had detached themselves from their hapu to live on the outskirts of European settlements did not enjoy this possibility.

 As time passed, many settlers resented separate provisions for dealing with Maori criminal offences, which they regarded as appeasement, reflecting only the balance of power between the two races.  Eventually Maori were brought step by step under the jurisdiction of unmodified British law.

 But this was not the end of serious efforts to exercise quasi-judicial functions within the context of the marae.  Some Maori communities developed runanga (councils) and komiti where Maori leaders resolved disputes and made rules for their hapu.  In 1858 the Government gave a measure of recognition to these bodies in the Native Districts Regulation Act which authorised runanga - under a Pakeha chairman - to make by-laws for their area and the Native Circuit Courts Act which authorised circuit judges to sit with Maori assessors and juries.

 Morris Ormsby 1 has conducted a sample survey of judges’ reports in 1871, 1881 and 1891.  In 1871 Richard Woon in Wanganui had completed his first magisterial visit to the upper Wanganui settlements.  One imagines a considerably more arduous passage than we would have today.  He wrote: 

“I am happy to say that a considerable amount of business was got through in a very satisfactory manner; the litigants and the Natives generally showing every disposition to conform to the rules of the Court and to abide by its decisions”


Woon was given the use of wharenui in which to hold his court at each settlement he visited.  He expressed satisfaction at being so well received.

 Some hapu developed their own courts.  An example is contained in the records of a runanga operating in the 1880’s on Rangiwaea, an island in Tauranga Harbour.  The runanga operated on guidelines set out by King Tawhiao.  The following details have been derived by Evelyn Stokes 2 from a minute book from Rangiwaea Marae. 

On 22 April 1886 it was agreed by the kaumatua to establish a Komiti Taitamariki which was given powers to make regulations and see that they were enforced.  The chairman was based at Rangiwaea Marae.  The komiti appointed a judge (Kaiwhakawa), a policeman (Pirihimana) and a clerk (Te Karaka). The komiti had power to make judgements, if necessary, in disciplining young people.  It was decided that it was necessary on most occasions for all members to be present, especially for trying serious offences.  The kinds of cases over which it had jurisdiction were offences concerned with people, food and property.


Offences against the person included assault, ill-treatment of young girls, adultery, false accusations, taking revenge with violence.  Some additional offences included the prohibition on a widow or widower remarrying too soon after the death of a spouse, and provision of fines for desertion of a wife, and for bestiality.


Offences concerning food covered consumption of food or exhausting the supply of food for people and animals.  Offences against property included theft of possessions, receiving, stealing from food storage pits and livestock control offences.  The Komiti Taitamariki also set out rules for holding their hearings stipulating that the Komiti would ask questions, having together first agreed what these should be.  Members were to be dressed appropriately and would fund the cost of the court from their district. The Komiti Taitamariki seems to have operated at least until 1888.

         He Tangata                                 Offences Against People


He patu i te tangata                      striking a person

He kohuru i nga kotiro ririki        ill-treatment of young girls

He puremu                                     adultery

He kanga                                         cursing

He hoko i te tangata                      trafficking in people

He whakakino ingoa                     calling names, slander

He haurangi tukino                      drunken violence

he whakairi kakahu ki te ara

hanging clothes on the roadway,

He whakairi kakahu ki te ara         hanging clothes on the roadway, ie

                                                          on fences in public view

He kararehe whakamate tangata dogs attacking people and causing

                                            injury or death

He whakapae teka                           false accusations

He tango i te utu whakapahi         taking revenge with violence

He korero teka                                 telling lies



He Taonga                                          Property Offences

He taonga i tahaetia i te tangata    stealing a person’s possessions

He taonga i ata whakaritea a i       claiming property as one’s own

tupononoa a te he i muri o te         knowing it belongs to someone else,

whakaritenga                                     receiving stolen property

He nama moni                                    indebtedness

He taonga take a he tangata ke    claiming property found by chance

nana i kite      

He warewahia e te tangata                  breaking into or damaging a man’s house

He taonga wahia i te kararehe            destruction of property by animals

He taonga pau i te kararehe                consumption of property by animals

He taonga pau i te ahi a te tangata    destruction of property by fire

He taonga taha ki roto i nga rua         stealing from a food storage pit

He whakaporiro i nga kararehe            animals should be neutered to prevent

ko tenei te mea ana me poke               fighting and injury to other animals

nga tame tetehi kino o te tame

he patu i nga karehe

He parani tahae tenei kupu me          animals must be branded for identification

parani to kararehe  

He keeti i waiho kia tuhera                 leaving a gate open so animals can roam

He pokanoa ki te hopu i nga              taking an animal for one’s own use without

karehe ki te eke ranei                         the owner’s permission


 Komiti Taitamariki Rules for Holding Hearings 

1.             When the Committee is sitting in judgment they appoint one person to ask questions.  First there will be discussion of the kind of questions.  The questions will be agreed by all the Committee. A spokesman for the Committee will conduct the questioning.


2.             The work of the Committee will not begin before 10 o’clock in the morning or go on after 10 o’clock at night.


3.             Members should be properly dressed when attending sessions of the Committee.


4.             Members of the Committee bring money to meet expenses of committee work.


5.             Members from each district will collect money and one will act as treasurer for the Committee’s welfare, to provide food at Committee meetings, so that all share the expenses of a hui as these meetings are for the benefit of all.  The kohi money is five shillings.


 Elsewhere, informal sanctions were imposed by elders in a village community, in ways that represented the continuation of tikanga or custom law.  One example, is the institution of whakawa, or “elders’ court”, which operated into the 1940s at Te Haroto, a Maori community on the Napier-Taupo Road.  In 1997 at Te Haroto Marae the Waitangi Tribunal heard that: 

Kaumatua were looked up to and the young people took notice of their advice.  They could be strict too and didn’t stand any mischief. Several of the witnesses spoke of kaumatua they recalled from their youth and the values that were instilled into them.


The whakawa or court of elders must have made a considerable impression on the young people of those days as they all recalled it and considered it an ordeal for those called to account.  The elders sat at one end and all the youngsters at the other.  The accused had to stand. It was a daunting experience for both accused and onlookers and made a big impression on young minds.  Youthful romances considered unsuitable were an example of the function of the whakawa.  By the time of the Second World War the practice was dying out.


Kahauriki Bartholomew noted that: 

All discussions took place on the marae or in Piriwiritua.  Everyone (adults) spoke and aired their opinion on the current raruraru [contentious issue]. The problem was shared by everyone.  Solutions were agreed upon by everyone and if a person faced punishment, he or she was ostracised for a period of time. 

The elders’ court disappeared after the 1940s due to the depopulation of the Te Haroto area.  Many Ngati Hineuru families joined the post war urban migration of rural Maori in search of jobs.  The young people grew up in the city and only returned occasionally to Te Haroto.  The ties that bound the community together were loosened and stretched, though not entirely broken.  As for many hapu, one of the consequences of urban migration was loss of local tikanga, including the whakawa, which had evolved in the context of a relatively isolated rural community.

 The Present

 I would now like to turn to the present day.  As you all know the Waitangi Tribunal often meets on marae.  It has a membership of 16, both Maori and non-Maori.  Its members include people familiar with Maori custom and tradition.  That expertise has proved invaluable.

 Where the Tribunal decides to hear claimant evidence on marae the hearing is held in the ancestral meeting house of the claimants.  Traditional greetings are invariably exchanged and the process is a fusion of Maori ritual and judicial procedure.  The fusion is generally successful.

 Hearings commence and end with karakia in accordance with Maori tradition and the Maori language is used extensively in kaumatua or traditional evidence.  The advantage in marae hearings and the use of Maori language ensures that claimants and particularly elders feel comfortable with the process.  In a traditional setting where at least one member of the panel is also an elder of high status, the evidence takes on an eloquence and cadence not found in an ordinary forum or courtroom.

 Such hearings can be a long drawn-out affair.  However, the Tribunal will often seek to focus the hearing process as much as possible through devices such as pre-hearings conferences, particularisation of claim, commissioning its own research and negotiating statements of issues with all parties.  These techniques help to reduce hearing time and maximise preparation time.

Proceedings are held on the marae because the Tribunal is of the firm opinion that on their home territory Maori people are better able to express their feelings and make their concerns known and that as a result of this procedure the Tribunal will be able to reach the real heart of matters.  This is often not so achievable in a building such as a courthouse or in proceedings conducted in the same manner as a court hearing.

 It can be seen, therefore, that one underlying rationale, as far as the Tribunal is concerned, is that hearings should be in locations which will best enable it to undertake its functions effectively and efficiently.

 The Tribunal observes the protocol of the particular marae and it is usual practice that the tangata whenua pass the proceedings over to the Tribunal for the day with the kawa being returned to them prior to the close of each day or at the close of the hearing.  The Tribunal is able to recognise tikanga with respect to many matters with the conduct of its hearings. 

The requisite features of the Tribunal’s success appear to be:

 ·       that at each sitting the members of the Tribunal include Maori elders 

·       the fusion of Maori ritual and judicial procedure 

·       the use of karakia 

·       the use of the Maori language and interpreters 

·       the high regard for Maori elders 

·       the use of Maori elders as advisers to parties 

·       the observance of kawa and recognition of tikanga 

The Position of Courts

 I would like to turn to the legal position governing the possibility for District Courts to sit on marae. There is legislative authority giving judges wide discretion in deciding where to hold a court.  The District Courts Act 1947 [section 21(3)] provides that a judge may hold any special or adjourned sittings for the dispatch of summary criminal business 

in any ... place wheresoever which the [Judge or the Justice or Justices for the

Community Magistrate or Community Magistrates] constituting the Court deem convenient. 

Section 4 provides that 

.. a [Judge] may hold or direct the holding of a particular sitting of a Court at

any place he deems convenient. 

It seems clear that Judges have the authority to sit on marae if they so wish. We have been unable to find statistics concerning the number of sittings of a court on a marae.  It is clear from a number of press reports that such sittings do occur but relatively rarely.  Where such sittings are convened it would seem to be for specific sentencing hearings for individual defendants rather than for the conduct of a court list or for a trial. Why is the discretion which judges have been given not exercised more often?  There are probably very many reasons as to why most judicial business is now conducted principally in courtrooms.  I do not intend to go into the realm of policy.  But quite apart from policy issues there are administrative and operational factors that are relevant.

 Administrative and Organisational Issues

 There are several practical issues that would have to be resolved in deciding to hold a sitting at a marae.  These include: 

·       logistical issues in servicing the court 

·       the additional time demands on judges in marae sittings 

·       mechanisms to identify which cases are appropriate for marae sittings 

·       criteria for the selection of cases 

To expand on the logistical issues, it is worth noting that running a court and meeting the legal standards of procedure that the court requires:

 ·       the recording of proceedings 

·       security for judges, court officials and members of the public 

·       support for victims 

·       facilities as mundane as waiting rooms, toilets and kitchens 

·       access to professional support and services, and 

·       public access to the court. 

These facilities could be provided on many marae but the practical issues are not a simple matter.  They would require prior arrangement and because they are not standard arrangements they impose greater costs in supporting the court.  If several cases were dealt with at any particular marae sitting some efficiencies of scale might develop, but proposals to date have tended to be one-off occasions. 

Time demands are also an issue.  Travel to the marae, the ceremony in welcoming court officials and members of the public appears to have resulted in proceedings taking more than an hour and in some instances several hours. 

Anyone who has spent any time in a District Court will know that courts are very busy places.  The administration of courts is expensive and judicial time is always in demand.  Any procedure which slows the operation of the District Court would rapidly increase the costs of courts administration and reduce the volume of cases that courts can manage in a reasonable time-frame ultimately to the detriment of defendants, many of whom would be held in remand custody for longer periods.  The overall costs and the pressure of court business encourage judges and registrars to make arrangements for marae sittings in only a few exceptional cases. 

There are insufficient resources to deal with all offences involving Maori offenders via marae court sittings.  Over 22,000 cases each year involve Maori offenders.  How would cases be selected?  Some would argue that early interventions in minor cases are the most deserving for such treatment.  Others might argue that the more serious offences deserve such attention.  In the absence of a rationale for case selection, and answers to the practical problems I have described, it is not surprising that judges and registrars have been hesitant to exercise the discretion they have under the Act.


Maori Concerns 

Not all of the constraints on marae sittings are administrative.  Indeed some are likely to arise from the concerns of Maori communities themselves.  It has been relatively easy for the Waitangi Tribunal to reach arrangements with local communities about the application of tikanga to particular situations.  The special functions of the Tribunal facilitate that and the tangata whenua have a strong interest in the outcome of the Tribunal’s proceedings and therefore a real incentive to work co-operatively with the Tribunal.  But it is likely to be different with court proceedings involving individual criminal cases. Today most Maori do not live in settlements closely associated with, or on, their home marae.  A large proportion of Maori are physically dissociated from their hapu and iwi and the collective interest, responsibilities, controls and authorities are weaker. 

Ideally any marae-oriented sitting would deal with a Maori offender on their home marae - the marae of their ancestors.  Ideally the victim would also be associated with that marae or hapu.  However, today we are seldom presented with the ideal.  Offenders and the offences they commit are more often in cities and many Maori offenders are dissociated from their iwi links. 

Moreover, from the Maori perspective, not any marae will do.  Urban marae are playing a very important role in our communities.  However, it remains to be established that there is special value in dealing with an offender who is associated with a particular marae at a pan-tribal venue or the marae of a hapu from another iwi.  This is a matter on which I am sure there will be different opinions among Maori. 

Also it is a fact that we have to recognise that perhaps not all marae would welcome regular court sittings.  In He Whaipaanga Hou, Moana Jackson noted that: 

“if the Maori community is to overcome the cultural deprivation and denigration of the past and reach out to its disaffected young, the marae must be a center of that effort.  The supportive warmth and sense of tradition which marks a marae must be made accessible to the young so that they feel part of it and thus able to begin the slow process of re­establishing their cultural links.  An inability to speak and understand the language and protocol, the tensions of a generation gap within Maori society, and the apparent distance of the marae from the realities of present day life, make this process difficult.  It is rendered even more difficult if the marae is also seen to be the base for a Pakeha court which is already seen to be intimidating, alien and unworthy of respect. 3 

The fact that court sittings on marae are rare and that there are a range of unresolved practical issues does not mean that the justice sector has remained aloof to Maori concerns.  There are two Maori District Court Judges.  And a major step forward was taken when Justice Durie was appointed to the High Court on 23 October last year. 

The number of Maori law graduates is growing.  However many seem to be attracted to work on Treaty claims and commercial areas rather than criminal practice.  This is understandable but it will be several years before we have a reasonable number of experienced Maori lawyers from which to draw in making judicial appointments.  Consequently, in the medium term, the District Court will have mainly Pakeha judges and lawyers 

However, Sir Douglas Graham, initially in his role as Minister of Justice and more recently as Attorney-General, has led an overhaul of the appointments procedure for all judicial appointments clarifying the base of selection and inter alia designed to promote greater diversity in the pool of applicants.  Expressions of interest are now sought by advertisement and nominations are solicited from a wide range of groups, including Maori organisations representative of, or working extensively with, lawyers.  Selection is on merit assessed against established criteria, including knowledge of cultural issues and the appreciation of diversity. 


Coroners are also judicial officers.  Coroners have the powers, privileges, authorities, and immunities of a District Court Judge in the exercise of their duties.  They are required by the Coroners Act 1988 to hold an inquest where deaths are without known cause, appear to be suicide or unnatural or violent.  Their duties bring them into contact with a wide range of people at times of great stress and sadness.  Coroners are aware that there are tensions between the exercise of their duties and the needs of Maori at times of bereavement.  In the exercise of various duties they are required to consider cultural and spiritual values - for example in the speedy release of the body as soon as is possible after death. 

Like district court judges coroners have the authority to set the venue for any inquest that they hold.  The Coroners Act provides that  

The coroner who is to hold an inquest shall fix a date, time, and place for it, and shall direct the Commissioner of Police to cause a member of the police to give notice of the date, time, and place. 

Further, the Act allows coroners to take evidence at times and places other than the inquest.  To the knowledge of a group of senior coroners, no one has asked for an inquest to be held on a marae and hence it has never happened.  Coroners are prepared to consider requests of the bereaved in regard to venue, as long as the inquest can be held in public, but this may not be widely known.  Nor may many people know how to make such a request. 

The Law Commission has been asked by the Government to review the legislation dealing with coroners.  This project includes a specific focus on issue of concern to Maori such as- 

·       the release of the body 

·       the relationship between the bereaved and the body 

·       sensitive handling of a deceased and body parts 

·       taking account of cultural values such as ensuring that a body is always attended

( in Maori terms “keeping it warm”). 

The preliminary report will be available for public discussion in early July 1999.  The Law Commission will then consider submissions and a final report is expected in December this year.

I would also like to mention some of the practical things that are being done to deal with Maori concerns. 

The differences between Maori and Pakeha have lessened since the two cultures began to influence each other.  Many Maori customs and the values they express have been modified or abandoned in favour of Pakeha ideals, for example through the influence of Christianity.  But important and subtle differences remain between the two cultures though these are not widely understood. 

There are several projects working to develop greater knowledge about historical and contemporary Maori values, particularly as they relate to the justice system.  Let me mention three examples.  First, there is the Waikato Maori Law Project at Waikato University, second a small team in the Ministry of Justice are working to identify the principles of Maori justice and third a project on customary law is underway in the Law Commission.  Their results will make important contributions. Understanding principles and values is a very important first step. 

We do know that Maori concepts of justice in so far as they affect relations within the whanau and hapu are based on restorative rather than retributive views of punishment.  Current moves to introduce restorative practices into the legal system might therefore be seen as a welcome reflection of Maori values in the law. 

What Will Work? 

Up to this point we have seen that judges have authority to convene courts on marae.  It is administratively possible though costly and a number of practical and philosophical barriers, perhaps on both sides, would need to be overcome if judges were to exercise judicial functions on marae. But even in mainstream court, efforts are being made to allow the values of the marae to be included in the exercise of judicial functions.  These are issues that the justice sector has been working on in recent years and some progress is being made.


Greater Court Sensitivity 

One area in which considerable progress has been made in the past ten years is increasing the sensitivity of the courts to Maori issues and practices.  The Maori Language Act established Te Reo as an official language that may be used in courts, and courts have increasingly been prepared to arrange facilities for translation.  Judges have also created opportunities for proceedings to begin with karakia - a significant advance.  Another advance, which has taken root more slowly, is the provision in section 16 of the Criminal Justice Act which provides for submissions from whanau and others on the ethnic and cultural background of an offender to be put before the court for sentencing.  This provision was intended to give judges information on issues and concerns specific to Maori and other ethnic groups.  The Ministry of Justice has been concerned for some time at the lack of information about the use of this section.  Accordingly a major research project was started last year to evaluate the use of section 16.  It is important that we understand more clearly whether and how this has made positive contributions, and to identify any further potential to inform sentencing judges about cultural and ethnic issues relevant to an offender.  The results of this research will be available next year. 

A further important step is that all judges have completed training in cultural sensitivity and Maori issues.  Some have been involved in marae-based training. Many judges have been supportive of restorative and community justice initiatives, which many consider a way that Maori values can be given greater expression. I believe the judiciary are making real steps forward and I have full confidence in the leadership that our new Chief Justice Sian Elias will bring to this area. 

Greater Recourse to Advice from Maori 

In the absence of Maori judges, other means to achieve Maori input may be necessary.  Several courts have established links with local kaumatua - many of whom work unsparingly as community workers in and around courts. In this regard I want to acknowledge the important step forward that was made with the institution of Maatua Whangai.  They make a significant contribution in many courts across the country and are a source of much practical advice for judges, lawyers and other professionals in the court. 

Community Magistrates 

Community magistrates are another project intended, among other purposes, to introduce greater Maori participation into justice.  These have been introduced in the Waikato and Bay of Plenty initially.  A review will be carried out after approximately 18 months in order to determine the basis on which a national programme will be implemented. 

Community magistrates sit in the District Courts, usually in pairs. They have been selected from the wider community served by the particular District Court to increase community involvement in the justice system.  Of the 16 community magistrates appointed so far, five are Maori.  That is over 30%. 

Community magistrates are paid judicial officers with powers to sentence persons who have been found guilty in the District Court, or who have pleaded guilty to certain summary offences.  Examples of offences in this category are wilful damage, offensive behaviour or trespassing.  Community magistrates also have the power to direct enforcement against fines-defaulters. 

Community magistrates do not have the power to imprison offenders but they may impose a range of other sentences, such as reparation, community-based sentences (such as periodic detention or community service), disqualification from driving, and fines.  The maximum fine a community magistrate is able to impose is $7,500. 

The requirement for community magistrates to have an understanding of the Treaty of Waitangi and of the needs and aspirations of the Maori people was just one criterion on which selection was made.  It is in line with Government policy on the status of the Treaty as a founding document and of Maori as tangata whenua.  The selection criteria approved by the Government made it clear that our courts do not operate in a social vacuum, but should know the values of the community they serve.  In the court system, where a significant percentage of defendants in criminal cases are Maori, this sort of requirement has particular relevance.


Te Awhina - Community Panel Diversion

Recent research involving the Ministry of Justice is an evaluation of the Te Awhina Pilot Pre-trial Diversion project at Hoani Waititi Marae in Auckland.  Te Awhina is one of three pilots funded by the Crime Prevention Unit to divert adult offenders appearing before the criminal courts. The process at Te Awhina is arranged as a result of a referral by the court. A panel of nominated members of the marae community meets with the offender and develops a plan in response to the offending.  The family/whanau of the offender are encouraged to attend.  The focus of the panel meeting is first and foremost one of confrontation the emphasis is on the responsibility of the offender for his or her offending and a recognition of the consequences that that offending has had for them, their victims, their family and whanau, and the Maori community.  The plan will include tasks that allow the offender to make good the damage they have done to victims, whanau and the Maori community.  Another focus is on reintegration - restoring the connections of the offender with their family, whanau and with the community, particularly the Maori community in an urban setting. The plans typically involve: 

·       responses to victims 

·       gaining employment or completing training 

·       participation in tikanga programmes and activities 

·       therapeutic and preventive interventions where these are appropriate. 

In many cases the action plan serves the purpose of a community sentence.  In other cases it also avoids a conviction and a court record.  Qualitative and quantitative evaluations of this programme have recently been completed including matched sample analysis of re-offending rates and costs.  Although the follow-up period is limited to 12 months, the results have high statistical reliability.  Community panel conviction cases were re-convicted at 12 months at a statistically lower rate than offenders dealt with by conventional courts - 33% for Te Awhina participants compared with 47% for matched controls.  What is more, those who re-convicted re-offended less seriously than matched controls. 

Most offenders found the experience positive and more meaningful than it would have been in other settings because it happened on the marae and in the meeting house where they were in the presence of their ancestors.  Despite the panel often being seen as intimidating and demanding, their decisions were accepted.  Te Whanau Awhina provides an example of an indigenous justice model.  It follows customary practice in:

 ·         the manner and kaupapa of the community panel meeting, 

·         the emphasis on the importance of family and whanau being involved in the decisions and informed of the outcomes,


·         the development of action plans that aim to make the offender accountable to family and whanau and the Maori community as well as to victims; and


·         the focus on reintegration of the offender into the wider community through measures to improve a variety of relevant skills, as well as into the Maori community through involvement in marae activities and tikanga programmes. 

The approach at Te Awhina gains strength from being able to provide many suitable community-based alternatives to corrections programmes either on the marae or through referral to Te Whanau O Waipareira Trust.  Its location on a marae and its embeddedness in tikanga increases its mana and effectiveness for Maori participants. 

Interventions that demonstrably reduce re-offending are rare enough but even rarer are quality evaluations of indigenous justice programmes.  Analysis shows that the project produced significant savings to the criminal justice system conservatively estimated as $193,096.  The programme cost $83,000 - $60,000 being the grant from the Crime Prevention Unit and $23,000 contributed in service by the Hoani Wiatiti Marae and Te Whanau O Waipareira Trust.  In other words, the investment returned over twice the contribution of the agency and the Maori community or over three times the contribution of the cost to the criminal justice system.  In addition, considerable financial savings accrued from the prevention of re-offending and the reduction in the seriousness of offending. 

It appears that the manner in which the panels exercise judicial functions and the regard in which they are held by Maori offenders and elders of their community, contribute to the success of the programme.  Not only in reducing offending but also in delivering outcomes that were regarded as just and appropriate by the wider community, judges and the offenders.



 Reductions in offending and improved quality of justice are possible from greater Maori participation in the administration of justice.  Some progress is being made.  Marae court sittings are possible and are permitted but they are a rarity. In any case, it may be in that, in the medium term, marae sittings by themselves will not be completely effective or meet the needs of Maori. 

The experiences of the past and of the Waitangi Tribunal point to the importance of involving senior Maori both at the bar as defence counsel and on the bench.  Where the judiciary are able to convene marae sittings it will be important that they are guided by Maori elders to ensure the appropriate inclusion of tikanga, the observance of important kawa and to mitigate the risks to victims, offenders and the marae. 

Other innovative ways of delivering judicial functions may also hold promise of achieving meaningful Maori participation and perhaps, in the long run, even more useful than sittings on marae.  They include restorative justice models and community magistrates.  Both are relatively new initiatives in the formal justice system.  It is important that they continue to receive the support of the legal and Maori communities.  If not, they will fail and we will be the poorer for it.

Interestingly, with the advent of restorative justice as a public policy issue we are in a period where Pakeha views and Maori views are moving closer together and this provides some hope for the future. 


Additional References

Maxwell G, Morris A & Anderson T (1 999) Community Panel Adult Pre-Trial Diversion: Supplementary Evaluation.  Institute of Criminology, Victoria University of Wellington

Speir P (1999) Conviction and Sentencing of Offenders in New Zealand. 1988 to 1997.  Ministry of Justice, Wellington

Morris A (1997) Women’s Safety Survey 1996 Victimisation Survey Committee, Wellington


1 Ormsby MJ (1997) Maori Tikanga and Criminal Justice.- Modification of the NewZealand Criminal Justice System to Admit Maori Tikanga (unpublished paper) Ministry of Justice, Wellington

Ormsby MJ (1997) Individual and Collective Rights unpublished paper) Ministry of Justice, Wellington 

2 Stokes E (1998) Unpublished paper.  Waikato University Law Project 

3 Jackson, M, (1988)- The Maori and the Criminal Justice System He Whaipaanga Hou - A New Perspective Part 2. Department of Justice Wellington