self-determination in the criminal ... - indigenous justice

Introduction

Self-determination is inherently fluid, shifting in meaning depending on its claimant and the relevant temporal con-text (Webb 2012). It follows that the meaning of self-deter-mination for Indigenous people is for themselves to define, although a consistent theme is that it refers to ‘increased Indigenous autonomy within the structures of the […] state’ (Behrendt 2001).

Self-determination has long appeared in Indigenous crimi-nal justice policy as a conceptual foundation underpinning policy applications. However, few policy discussions have focused on the contours of self-determination as a concept or legal right. This research brief accordingly seeks to do so, as well as to outline several current policy initiatives that demonstrate varied applications of self-determination in Australia and New Zealand.

Definition of self-determination

International law status

Self-determination is more than a theory; it is an international law right. Indeed, it is the first right enshrined in two human rights treaties: the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). They define self-determination as a people’s right to ‘freely determine their political status and freely pursue their economic, social and cultural development’. The UN, moreover, sees self-determination as an ‘essential condition for the effective guarantee and observance of individual human rights’ (UN Human Rights Committee 1984).

The right to self-determination gained prominence through decolonisation processes, which increasingly unfolded worldwide following World War I, creating independent countries established through claims to self-determination (Dessanti 2015). Consequently, this has historically sparked debate over whether subnational minority groups such as Indigenous peoples are also entitled to self-determination (Behrendt 2002); some countries have feared that this would be tantamount to endorsing a right to secession (Dessanti 2015).

From an Indigenous perspective, Indigenous self-determination can exist subnationally regardless of such debates; indeed, it can take on new, Indigenous-defined meanings domestically, irrespective of the applicability of international law (Behrendt 2002). However, the watershed passage of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 has clarified that the international framework does apply. UNDRIP confirms that Indigenous people enjoy the right to self-determination as defined in the ICCPR and ICESCR (see UNDRIP Article 3). Simultaneously, UNDRIP allays fears over self-determination’s potential to encourage Indigenous secession (Davis 2012). As Article 46.1 states:

‘Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act […] construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.’

Self-determination in the criminal justice systemA series of Research Briefs designed to bring research findings to policy makers

Conducting research with Indigenous people and communities Brief 15, January 2013Dr Judy PuttWritten for the Indigenous Justice Clearinghouse

Introduction

Past critiques of the social sciences focused primarily on the identity of the researcher and his or her relationship with the ‘subject’ Indigenous person, but over time more sophisticated and practical approaches have emerged related to participant-focused methodologies and design. More specifically, past research involving Indigenous people has been criticised as inherently biased and disempowering (Henry et al 2004; Davey and Day 2008; Kidman 2007; Sherwood 2010). Recent responses that seek to improve all forms of research practice involving Indigenous people in Australia and internationally, include funding for Indigenous-specific research institutes, dedicated funding for Indigenous academics and research networks, and ethical guidelines. Some of the most interesting and substantial Indigenous-led or informed research that has emerged in the past 20 years has often related to health, although such innovative approaches remain under-developed in the criminological domain. Today, Indigenous researchers argue the focus should be on working with Indigenous people who hold the knowledge and

expertise of their circumstances past and present, and on positive change (Smith 1999; Sherwood 2010).

This brief provides an overview of innovative and exemplary research approaches and practice undertaken with and by Indigenous communities that is relevant to crime and justice research. A number of critical questions guided this brief, including:

• What have been the research topics and methods undertaken in Australia in recent years on justice issues and Indigenous people?

• What constitutes good practice in criminological research and evaluation?

• What are some of the key considerations when conducting research with Indigenous people and communities?

• What should constitute good practice and what are examples?

• What are the main practical challenges associated with such practice?

The brief is divided into four sections, covering research practice and context, ethical frameworks and review processes, practical constraints and challenges, and promising practice. Where appropriate, examples are drawn from other countries, most notably New Zealand and Canada.

Research practice and context

The research ‘business’ Research can be broadly divided into that which is investigator-driven and that which is policy-driven, with the former generating proposals through thesis work and academic interest that are submitted for funding whilst the latter arises primarily through commissioned projects and evaluations. Research institutions and funding bodies therefore play an important role in supporting locally-driven research and setting national priorities for research that incorporates Indigenous perspectives or supports Indigenous control or direction (Henry et al 2004).

In terms of crime and justice research, the main sources of government funding and the kind of research questions that preoccupy policy makers means that much of the research with Indigenous people relies on secondary analysis of administrative data and national surveys. Driven by governmental agreements at the national level, in Australia, the focus is on monitoring Indigenous over-representation in the criminal justice system and evaluations of programs and initiatives that seek to ‘close the

www.indigenousjustice.gov.au Standing Council on Law and Justice

A series of Research Briefs designed to bring research findings to policy makers


Introduction














Council of Attorneys–General

Doreen Chen Written for the Indigenous Justice Clearinghouse


Research Brief 28, October 2020

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I n d i g e n o u s J u s t i c e C l e a r i n g h o u s eethics approval in Australia (Graham 2011; Kidman 2007; Sherwood 2010). Considerable time may be required to plan and develop a partnership or collaborative arrangement with Indigenous communities or organisations and to obtain letters of support from key representatives prior to submitting an application. For example, Coram (2011) describes a 12-month application process to obtain approval from an ethics committee, for a small scale study of a community project involving young people.

Based upon researchers’ reflections of their experiences, it is evident that there are often gaps between the theory of good research and practice (Blagg 2011; Davey and Day 2011; Sherwood 2010; Williams et al 2011). Despite the best of intentions, there are inherent tensions between a commitment to the principles of participatory and ethical research and the expectations of funding agencies and academia. Strict adherence to ethical guidelines and research protocols does not necessarily translate into day-to-day good practice. Nor may there be the funding, capacity and timeframe to allow all parties to devote the energy and resources to follow through on the ideal.

From a non-Indigenous perspective, the research process can be difficult, subject to change and negotiation over time and the ceding of control and re-orientation in thinking (Coram 2012; Davey and Day 2008; Nicholls 2009). Blagg (2011) states that researching in the Aboriginal domain is never easy or straightforward, whether working with an Aboriginal urban group or in a remote community. Sherwood (2010) (herself an Indigenous researcher) found a common refrain amongst the Aboriginal people she talked with, was that researchers did not ‘listen’ and did not get the story ‘right’. As she underlines, being able to listen and hear is an active process that requires openness and can be discomforting. Another risk, according to Davey and Day (2008), is that of over-identification or romanticism, and reifying the construct of Indigenous identity or reproducing stereotypes.

For Indigenous researchers, there can be significant challenges and difficulties associated with being

placed in a cultural brokerage role. Sherwood (2010) refers to tensions related to Indigenous researchers’ responsibilities to their community and the aim of making research a safe and beneficial process for Indigenous people, whilst working within a western academic environment. There is a lack of documented perspectives from community-based researchers, and accounts of the strengths they bring to the research process. Canadian research, however, suggests those who have been directly involved certainly have more positive attitudes about research than those who had only heard about research in the community (Edwards et al 2008).

Who benefits?Academic research has certain values and practices that are continually reinforced through the definition and recognition of ‘experts’ and their role in peer review of funding assessments and acceptance of research products (Sherwood 2010). In many circumstances, funding applications and research outputs are still assessed in terms of scientific quality not social benefit (Henry et al 2004), although this is changing with the NHMRC grant guidelines for medical and health research with Indigenous communities now requiring applicants to demonstrate community engagement, capacity building and benefit. The question of benefit – short term to participants and to collaborators and partners – and longer term, to Indigenous people and social science is not always easy to determine and to agree upon, let alone deliver.

Challenges of community-based collaborative approaches include the agenda for research, the power differentials, and ownership and identity of the research project, with political dimensions to the process and outcomes (Edwards et al 2008). Other challenges may relate to the scepticism and resistance from Indigenous gatekeepers (Davey and Day 2008) and as Blagg (2011) points out, the needs of non-Indigenous researchers may not be a priority in Indigenous communities.

There can be different notions of accountability – to the funding body, to the university and the

scientific community – which may be sometimes at odds with the need to be accountable and respectful of Indigenous cultural priorities. Davey and Day (2008) found this occurred during data collection – with the non-Indigenous researchers seeking to ensure compassionate professional distance whilst Indigenous colleagues wanted to assist and counsel the men, mindful of the wellbeing of participants. Coram (2011) found that she was criticised for not recording ‘negative’ observations in her research but she argues she could not retain the trust of the community if she did so.

Evaluation challengesMuch of the research that Indigenous people have experienced relates to evaluations, and may be largely a consultation process. As Williams et al (2011) stress, the AIATSIS guidelines on Indigenous research do not deal specifically with evaluation, despite the particular challenges surrounding evaluations of programs and initiatives that involve Indigenous people. The common business model for evaluations adopted by governments is to contract external or independent groups to undertake the work with the specifications, including the timeline, determined by the contracting party. Collaborative and participatory research methodologies do not lend themselves to short timeframes. They also note that they are relatively easy to talk about but difficult to do. There are limited resources, and limited time to develop the trust and confidence at the heart of true partnerships.

Research instrumentsThere may be serious flaws in standard research instruments that require adaption or redesign (Anderson 2008). Survey questions are asked slightly differently in remote and non-remote contexts in NATSISS (ABS 2010), and Blagg (2008) refers to the development of a community safety questionnaire that required reformulating questions about safety and social problems. This initial work was further built upon in a large scale survey of community safety and wellbeing in remote communities (Shaw and d’Abbs 2011).

In certain contexts, due regard should



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UNDRIP does not merely confirm Indigenous enjoyment of the right to self-determination but situates the right as its centrepiece (ATSI Social Justice Commissioner 2011): the Declaration is permeated with both express and implicit references to concepts of self-determination, for instance in its goals, references to autonomy and self-government, and with respect to the right to Indigenous institutional structures (Xanthaki 2007). It also centralises aspects of the right previously dispersed across different international legal instruments (Cowan 2013; McMullan 2011; Round & Finkel 2019; Xanthaki 2007).

UNDRIP, self-determination and criminal justice From a criminal justice perspective, several aspects of UNDRIP’s definition of self-determination are relevant. For example, Article 34 empowers Indigenous peoples’:

‘right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs’.

Likewise, Article 35 protects Indigenous peoples’ ‘right to determine the responsibilities of individuals to their community’. Finally, Article 18 refers more broadly to Indigenous peoples’:

‘right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own [I]ndigenous decision-making institutions’.

Degree of legal force FUNDRIP is a declaration. Declarations are generally non-binding, aspirational statements rather than treaties that create legal obligations. This has accordingly fuelled the question of how much legal force UNDRIP – and in turn, its definition of self-determination – possesses (see Barnabas 2017; Davis 2012; Dessanti 2015; McMullan 2011; Round & Finkel 2019; Xanthaki 2007).

Importantly, UNDRIP’s self-determination protections do draw on binding instruments. Most relevantly for this brief, UNDRIP incorporates verbatim the ICCPR and ICESCR’s definition of the right to self-determination. Other criminal justice-related provisions in UNDRIP also echo provisions in

such binding treaties. The ICCPR’s Article 27, for example, protects minorities’ right to ‘enjoy their own culture’; while, Article 25 confirms citizens’ right ‘to take part in the conduct of public affairs, directly or through freely chosen representatives’.

Therefore, although some of UNDRIP’s provisions may reflect aspiration rather than binding law, those provisions that are based on binding legal instruments do create legal obligations for countries which are parties to the legal instruments in question. Concretely, this means that the right to self-determination is an internationally protected legal right in countries that are parties to the ICCPR and ICESCR, such as Australia and New Zealand. Accordingly, both are expected to guarantee the right to self-determination for all their citizens, including Indigenous people. In short, UNDRIP is indeed ‘the international instrument that provides the most authoritative guidance to governments about how their binding human rights obligations apply to Indigenous peoples’ (ATSI Social Justice Commissioner 2011).

Finally, there is also discussion as to whether aspects of the right to self-determination may enjoy customary international law status (Barnabas 2017; Davis 2012; Cowan 2013). Such status would imply that relevant aspects of the right are binding upon a country regardless of whether it agreed to codify that international instrument.

Self-determination in a domestic context

Australia and New Zealand have had an uneasy relationship with the concept of the right to self-determination. Both countries identified the right’s protections within the UNDRIP as the reason why they were among only four countries in the world to initially vote against the Declaration (UN 2007). However, Australia and New Zealand did ultimately adopt the Declaration in 2009 and 2010, respectively (Macklin 2009; Power 2010).

Whatever the legal status of UNDRIP’s protections, the right to self-determination does have some legal existence in both Australia and New Zealand. At a minimum, this owes to the fact that, as discussed above, aspects of the right to self-determination are protected under binding international instruments to which both Australia and New Zealand are parties. Both countries also have processes in place to assess the extent to which newly proposed legislation complies with

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the countries’ respective human rights obligations (Australia. Attorney General’s Department nd; New Zealand. Ministry of Justice 2019).

Moreover, in New Zealand, the domestic legal status of self-determination is affected and may be reinforced by the existence of the Treaty of Waitangi, although the extent to which is subject to ongoing debate (McMullan 2011; Round & Finkel 2019). In principle, the Treaty promises the rights of Māori to ‘develop and control their own institutions’ as a form of ‘tino rangatiratanga’ or ‘unqualified exercise of [chieftainship or] self-determination’ (Te Uepu Hapai i te Ora 2019). Future protections for self-determination may also be affected by New Zealand’s ongoing development of a national plan of action to assess its implementation of UNDRIP’s objectives (UNDRIP Plan), including self-determination (New Zealand. Te Puni Kōkiri 2019a).

Self-determination in the criminal justice system

Current implementationPast attempts to integrate Indigenous leaders as policy ‘brokers, clients, champions, [and] decision makers’ in Australia and New Zealand have had disappointing outcomes, with continued, endemic Indigenous over-representation among incarcerated populations (Putt & Yamaguchi 2015; Te Uepu Hapai i te Ora 2019). It has been suggested that this may owe to a piecemeal implementation of self-determination, and that its holistic implementation across criminal justice policy may be necessary for Indigenous criminal justice outcomes to improve (Law Council of Australia 2017; Stanley & Mihaere 2019; Te Uepu Hapai i te Ora 2019).

Nevertheless, even within the existing approach, several policy applications have explicitly or implicitly incorporated Indigenous self-determination as a principle. Whether they have implemented self-determination in practice, let alone in a way that establishes effective ‘equal strategic relationships with joint decision-making about governance, funding, strategy, policies, programs, procurement, and evaluation’ (Phillips 2019), remains another matter. In any event, approaches that currently incorporate self-determination in principle include Aboriginal Justice Agreements (Allison & Cunneen 2013), community night patrols, Aboriginal sentencing courts and behaviour change programs (Putt & Yamaguchi 2015), and justice reinvestment (Schwartz, Brown & Cunneen 2017).

This brief illustrates how self-determination is being incorporated into criminal justice policy in both countries through profiles of five policy approaches.

Initiatives advancing self-determination in Australia and New Zealand

Victorian Aboriginal Justice Agreement

Indigenous justice agreements (IJAs) are strategic agreements established by some Australian States and Territories in partnership with Indigenous leaders. They address ‘delivery, funding, and coordination of Indigenous programs and services’, and issues such as Indigenous over-representation in criminal justice systems (Allison & Cunneen 2013).

Driven by the Indigenous community and initially established in 2000, Victoria’s Aboriginal Justice Agreement (Vic AJA) Burra Lotjpa Dunguludja (Yorta Yorta for ‘senior leaders talking strong’) represents the first and longest-standing IJA in Australia. It treats self-determination as defined in UNDRIP as its ‘guiding principle’. Specifically, it envisions that ‘Aboriginal people have access to an equitable justice system that is shaped by self-determination and upholds their human, civil, legal and cultural rights’ (Vic. Government 2018).

The Vic AJA focuses on ‘growing self-determination’ through ‘greater accountability for justice outcomes’ and ‘greater Aboriginal community leadership and strategic decision making’. It is expected that increasing self-determination will improve Indigenous criminal justice outcomes by:

• improving knowledge;

• increasing community buy-in and culturally appropriate solutions;

• building cultural sensitivity and competency; and

• using networks to facilitate inter-agency cooperation and engage individuals who would otherwise not participate (Vic. Government 2018).

It is implemented through a wide array of positions, programs, partnerships, and plans across the Victorian government. Central to these and the entire AJA are the Aboriginal Justice Forum (AJF) and Aboriginal Justice Caucus (AJC). The AJF convenes Indigenous leaders and government officials to monitor the AJA’s implementation and promote both AJA principles among the Indigenous community and Indigenous participation in the leadership of the AJA and justice system (Vic. Government 2020b).

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The AJC, meanwhile, includes Indigenous members of the AJF as well as other Indigenous community leaders. A self-determining body, the AJC aims ‘to be a conduit between the Aboriginal community and the justice system’ (Vic. Government 2020a). As part of its role in promoting ‘community driven change and inspir[ing] the community to be self-determining’ (Vic. Government 2020a), the AJC has defined self-determination in successive AJA iterations, and has been funded in this AJA cycle to increase Indigenous participation and leadership in ‘government processes, policy and program design’ (Vic. Government 2018).

Victorian Police data on Aboriginal justice indicators reveals that in the five years between 2014 and 2018, there have been consistent decreases in offences, recidivism, and bail breaches among Indigenous 10-17 year-olds (Vic. Crime Statistics Agency 2019), with similar decreases for Indigenous 18-24 year-olds in every respect, bar recidivism. However, for most offenders – those aged 25 and above – the rate of offending behaviour increased across all fronts in 2014-2018, with a 9.5 percent increase in recidivism. Moreover, across all ages, there has been a 1.9 percent increase in Indigenous persons being victims of a violent crime.

Likewise, evaluations of past Vic AJA phases acknowledge that challenges to Indigenous criminal justice outcomes, including over-representation, persist. However, they conclude that over-representation would have been even higher without the AJA (Vic. Government 2019b). They also note the AJA’s other benefits: maturation of partnerships between government agencies and Indigenous communities; ‘embedding cultural awareness and the adoption of an Aboriginal lens for the development of new strategies, policies and initiatives’; developing infrastructure to address over-representation; and, for example, $22-25 million in gross benefits to Victoria in 2011.

Moreover, the success of the AJA may be helping to catalyse broader and more holistic policy reforms in Victoria. For instance, from 2020, all Victorian government agencies must report on how they embed Indigenous self-determination in their work as part of the Self-Determination Reform Framework (Vic. Government 2019a). In addition, Indigenous self-determination has also been legally guaranteed, insofar as it relates to participation in Victoria’s ongoing Treaty process, under the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic).

New South Wales OCHRE’s Local Decision Making scheme New South Wales’ latest IJA was introduced in 2013 and

is known as Opportunity, Choice, Healing, Responsibility, Empowerment (OCHRE). OCHRE’s premise is that:

‘Aboriginal communities are best placed to understand local needs and that service delivery can be compromised if distinct local conditions are overlooked in favour of a ‘one size fits all’ approach’ (NSW. Government 2013).

OCHRE responds to criticisms of the previous IJA, which was found to ‘[lack] genuinely shared decision-making’, and, ‘despite significant investment over time – [result in] limited demonstrable improvement in the lives of Aboriginal people’ (NSW. Government 2013).

Specifically, OCHRE introduces a ‘Local Decision Making’ model (LDM). The LDM operates in 70 communities, with nearly 100,000 Indigenous people (NSW. Ombudsman 2019). It promotes self-determination by seeking to increase Indigenous ‘decision making powers through local manage-ment committees that will progressively be delegated great-er [advisory, planning and implementation] powers’ (NSW. Government 2013). Notably, these powers will include budgetary control. The LDM is grounded in ‘international approaches that demonstrate that self-governance is intrin-sic to empowerment and community wellbeing, including in terms of health, education and economic outcomes’ (NSW. Ombudsman 2019).

From a criminal justice perspective, the introduction of the LDM has led to the signing of a three-year accord in 2019 between the NSW Government and LDM alliances to col-laborate on decreasing Indigenous youth incarceration rates and recidivism (NSW. Government & NSW Coalition of Abo-riginal Regional Alliances 2019). Under the accord, parties are to identify priorities, targets and timeframes, with col-laboration based on principles of ‘knowledge sharing, joint decision making, co-design and informed consent’.

Neither an evaluation of the accord nor relevant statistics following the accord’s introduction are yet available. As for the LDM itself, the NSW Ombudsman has found that it has moved slowly due to its unanticipated popularity and the ‘significance of the challenge for government in making necessary practical changes to share decision-making with Aboriginal communities’. Furthermore, the LDM’s outcomes were untracked in its first five years. Nevertheless, the LDM appears to have slowly transformed government and Indig-enous communities’ relations through greater awareness, reflection, and collaboration (NSW. Ombudsman 2019).

OWA’s Olabud Doogethu siteOlabud Doogethu (Kriol for ‘everyone together’) is Western

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Australia’s first justice reinvestment site. Situated in the Shire of Halls Creek in the Kimberley region, the project is being spearheaded through a partnership between the Shire’s local government, its constituent Indigenous communities, and Social Reinvestment WA, a coalition of 23 NGOs (Social Reinvestment WA, Olabud Doogethu & Shire of Halls Creek 2019).

The project focuses on improving justice outcomes for the Indigenous people, who comprise over 75 percent of the Shire’s population. Its core values include Indigenous self-determination and self-management, described as:

‘[Indigenous] people having full control over the management of their affairs so that the implementation of rights […] becomes achievable due to the removal of barriers, obstacles and injustices of the past’ (Shire of Halls Creek Department of Youth and Community Development 2019).

These goals are to be achieved through approaches including service delivery ‘that reflect[s] and champion[s] Indigenous Australians’ world view and ways of being’; ‘utilising local knowledge for local solutions’; and prioritising services for Indigenous people by Indigenous people (Shire of Halls Creek Department of Youth and Community Development 2019).

Olabud Doogethu models self-determination not only in its goals but in its development process. Through an 18-month Indigenous community consultation, individual communities co-formulated not only the overarching project framework and plan but their community’s individual plan. For the latter, they determined priorities, strategies for achieving them, and responsible implementing parties (Shire of Halls Creek Department of Youth and Community Development 2019).

One early initiative implemented is the engagement of Youth Engagement Night Officers. These officers, who are Indigenous local community members, monitor Halls Creek’s business district from 9pm-4am speaking to youth to deter risk-taking, anti-social behaviour, and ultimately crime by redirecting them to safe environments and learning why they are on the streets. They also provide feedback to service providers such as the police and Department of Child Protection and Family Support.

Although it is only in the early stages of implementation, there is some data surrounding Olabud Doogethu’s impact. For example, over its first ten months, the Youth Engagement Night Officers and Parent Support program has led to a 61 percent reduction in crime when compared to the previous year, with an average of 38 fewer charges laid per month.

Over $110,000 has been saved annually in asset protection (Shire of Halls Creek Department of Youth and Community Development 2019).

New Zealand’s UNDRIP PlanNew Zealand’s UNDRIP Plan, currently under development, is intended to be a nationwide plan that will measure New Zealand’s progress on achieving UNDRIP’s objectives (NZ. Te Puni Kōkiri 2019b). According to the Cabinet paper supporting the development of the plan, aims to address a recognised ‘implementation gap’ between formal commitments to upholding Indigenous rights - such as through supporting instruments like UNDRIP - and Indigenous peoples’ lived realities (Office of Te Minita Whanaketanga Māori 2018).

The UNDRIP Plan further seeks to capitalise on the ad hoc advances already achieved. These include references to UNDRIP in New Zealand courts that consider how to observe principles in the Treaty of Waitangi. Government agencies have also made ad hoc references to UNDRIP, for instance, in evaluating their activities’ fulfillment of the Declaration (Office of Te Minita Whanaketanga Māori 2018).

The plan, to be developed by a working group comprising government and non-government experts, will build on and coalesce such efforts. In doing so, it intends among other aims to ‘contribute to enhancing the self-determination of Māori as the indigenous peoples of Aotearoa / New Zealand’. In practical terms, it will serve as a ‘national plan of action, a strategy or some other tool that provides a map that demonstrates and guides progress across government’. It also intends to include ‘time-bound, measurable actions’ (Office of Te Minita Whanaketanga Māori 2018).

While the working group was due to report in November 2019 with a suite of initial options (NZ. Te Puni Kōkiri 2019b), an update on the plan’s development has not yet been provided. This delay may owe to disruptions caused by the outbreak of Covid-19.

Rangatahi and Pasifika courtsRangatahi and Pasifika youth courts have been instituted across New Zealand for just over a decade, with 15 Rangatahi and two Pasifika courts currently in operation. The program aims to improve criminal justice outcomes for Māori and Pasifika youth through heightened engagement and involving their families and communities in the process (NZ: Te Kōti Taiohi nd; IWI Chairs Forum nd). Open only to youth who have not denied the charges against them, the courts offer the same legal outcomes as youth courts but

adopt a culturally-adapted justice process.

Once a Family Group Conference has determined a plan for how the young person is going to take responsibility for their actions, Rangatahi and Pasifika courts will supervise the plan’s implementation. Held in Māori marae or Pasifika churches or community centres, these courts offer a space for community elders to connect with young people, educating them about their cultural identity, protocols and customs, and providing encouragement and guidance (NZ: Te Kōti Taiohi nd; IWI Chairs Forum nd). Youth participants may also be instructed to undertake community work at those cultural sites.

A 2012 evaluation of Rangatahi courts suggested that the use of cultural venues and processes ‘were critical success factors that increased the likelihood of positive engagement by rangatahi and whanau’ (Kaipuke Consultants 2012). Some phrases youth participants have used to describe the courts include ‘comfortable’, ‘empowering’, ‘far better’, ‘own’ and offering ‘more of a chance’ (IWI Chairs Forum nd).

ConclusionIndigenous self-determination has grown in prominence following the 2007 introduction of UNDRIP. Moreover, for countries that are parties to treaties from which UNDRIP rights are drawn, such as Australia and New Zealand, self-determination constitutes an international law right. In practice, self-determination is being featured in certain criminal justice policy applications in both countries at least in principle, although it is suggested that such implementation needs to become more holistic to impact criminal justice outcomes more significantly. At present, however, Indigenous people remain broadly over-represented in incarcerated populations and more prone to recidivism in both countries.

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Introduction














8

ISSN 1837–6223 (print) © 2018 Indigenous Justice Clearinghouse.

Logo and header by artist Garry Jones. Layout and print by Breakout Media Communications.

www.breakout.net.au

i The term Indigenous is used, respectfully, in this Brief to refer to First Nations peoples of both Australia and New Zealand, recognising the considerable diversity that exists both within and between different groups.

ii For example, the Reintegration Puzzle is an annual conference which rotates across Australia and New Zealand to provide opportunities to hear the latest information concerning programs and services which aim to assist people to successfully reintegrate back into the community after prison. See http://www.reintegrationpuzzle.com.au

4













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