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230 In this chapter we look at how state agencies working in the justice sector are developing their policies for the provision of services to Mäori women. We have limited our examination to:
231 We have not examined other ministries such as Health, Education and Youth Affairs, notwithstanding our contention in this report that the access of Mäori women to justice cannot be separated from the level and quality of their participation in Mäori society or in society generally. While ministries have less impact on the central theme of access to justice than the departments we have considered, we do recognise that there is a close nexus between educational, social and economic disadvantage and crime. We have, however, also found it necessary to confine the scope of this paper and acknowledge that Te Puni Kökiri has conducted evaluations of the responsiveness to Mäori of mainstream social policy agencies such as the Ministry of Education.
232 This chapter starts with a brief introduction to the state sector reforms since 1987 and in particular their impact on state agencies responsible for Mäori policy and service delivery. It then examines the programmes, policies and processes that the justice sector departments and the Legal Services Board report they have in place, insofar as they address the needs of Mäori women.
233 We asked these ministries and the Legal Services Board to identify the initiatives which addressed the needs of Mäori women. We were looking, for example, for policies which addressed
The replies emphasised policies not specifically directed at Mäori women and their families, but which the agencies considered would be of benefit to Mäori women.
234 This chapter does not consider the process of hearing and settling claims made to the Waitangi Tribunal under the Treaty of Waitangi Act 1975. Implementation of Treaty settlements is obviously one way in which Mäori economic, social and cultural well-being may be advanced. The present government has included negotiation and implementation of Treaty claims as one of two parts of its policy towards Mäori as expressed in Strategic Result Area 8 (see para 252). However, because of the small number of concluded settlements, and because our concern in this paper is with the position of Mäori women, we do not discuss Treaty settlements here.
235 State agencies are responsible for developing policy concerning the state’s provision of services to the public. Government departments and ministries have a core function of giving advice to their responsible ministers and to the government as a whole. Some also deliver services directly to the public. Three “central agencies” – the Treasury, State Services Commission and Department of Prime Minister and Cabinet – maintain a general oversight of state sector activity.
236 Before 1987, the state comprised some 37 agencies. The large public service was criticised by many as being ill-adapted to the changing world:
It might have been stable and politically neutral; it was also swollen, stultifying, timid, bureaucratic, unadaptable, and self-perpetuating; its members lacked the necessary skills of financial management; and the system was notably inefficient when undertaking such commercial enterprises as forestry and railways. (Ringer 1991, 17)
237 Motivation for reform of the state sector came from:
238 Since 1987, the state sector has undergone major rationalisation and restructuring, resulting in significant staff reductions. Commercial functions performed by the state in the mid-1980s have since been corporatised or privatised. Many departments have been split, with separate organisations now responsible for the delivery of policy advice and the implementation of policy or delivery of services to the public.
239 The way in which the state developed policy and delivered services to Mäori underwent huge change in the late 1980s and early 1990s. Mäori leaders who attended Hui Taumata, the Mäori Economic Summit, in late 1984 expressed disenchantment with the effectiveness of the Department of Mäori Affairs. The call for services provided by the Department of Mäori Affairs to be devolved to iwi organisations eventually found expression in Te Urupare Rangapu (Partnership Response) released by the Minister of Mäori Affairs in 1988.
240 Te Urupare Rangapu had two broad components: to make “mainstream” agencies more responsive to Mäori needs, and devolution. Consistent with changes in several other portfolios, Mäori policy advice and service delivery were split. As noted in Public Management: The New Zealand Model, a small policy ministry, Manatu Mäori, was established in 1989 and charged with
Meanwhile, many “mainstream” departments established Mäori units to advise on issues relating to Mäori and sought to increase the number of Mäori staff (Boston et al 1996, 147 and 150). The State Sector Act 1988 s 56 also imposed on departments and chief executives the requirement to be a good employer, which means operating a personnel policy that, amongst other things, recognises:
241 The Mäori Affairs Restructuring Act 1989 restructured the Department of Mäori Affairs into ITA – the Iwi Transition Authority (Te Tira Ahu Iwi) and abolished the Board of Mäori Affairs.17 The principal functions of the ITA under s 7 of the Act were to:
242 Services which ITA inherited from the Department of Mäori Affairs included housing, land development, job training and köhanga reo. The Authority also assumed the functions of the Mäori Trust Office, while responsibility for the Mäori Land Court was transferred to the Department for Justice.
243 The Rünanga Iwi Act 1990 was the last major Mäori policy initiative of the Labour Government. Designed to give legal recognition to rünanga (councils) to represent iwi and thereby establish vehicles through which funding for devolved services could be provided, the Act was repealed by the National Government the following year.
244 The new Minister of Mäori Affairs commissioned a report to review policy to improve the social and economic position of Mäori. Ka Awatea, published in 1991, analysed the poor showing of Mäori in health, education and employment. It recommended that four separate bodies – a Mäori Education Commission, Health Promotion Unit, Training Unit, and Economic Resource Development Unit – be established within a new specialist Mäori agency which would replace Manatu Mäori and the ITA. A new ministry replacing these two bodies, Te Puni Kökiri, was set up in January 1992, although its role was confined to providing policy advice, rather than also delivering education, health and other services as envisaged by Ka Awatea.
245 The two broad directions of Te Urupare Rangapu (devolution, and mainstreaming delivery of services to Mäori while increasing the responsiveness of all agencies to Mäori needs) have not been endorsed wholly by the government since 1990. Devolution, which itself is a highly subjective term, has been largely rejected in principle by the government, but is perhaps discernible in some areas; for example the contracts the Community Funding Agency and Regional Health Authorities have entered into with Mäori service providers (see paras 310–316).
246 Greater continuity in policy has been shown in the continuing preference for services to be delivered to Mäori by “mainstream” agencies (or contracted out by such agencies) rather than a single agency dedicated to Mäori service delivery (such as ITA). Government departments have also continued their efforts to be more responsive to Mäori needs through consultation processes and Mäori policy units, and EEO programmes aimed at increasing the number of Mäori staff. Whether mainstream agencies are now perceived by Mäori as more responsive to Mäori needs is, as chapter 3 illustrates, still debatable.
247 One way of gauging government policy and departmental priorities in relation to Mäori is to consider the recognition given to Mäori issues in strategic and key result areas. Strategic result areas (SRAs) encapsulate the medium-term priorities of government. They focus on what government as a whole, rather than individual departments or agencies, aims to achieve. There have been two versions of the SRAs to date; the first was devised for 1994–1997, while the second, covering the 1997–2000 period, was created for the National–New Zealand First Coalition Government. The current SRAs are designed to provide a link between:
248 The SRAs do not reflect everything the government wishes to achieve, but rather those goals which have been selected by government as being the “critical few”, as opposed to the “important many”. Importantly, SRAs are designed to move government agencies beyond outputs, and enhance their focus on outcomes. “Outputs” are defined in s 2 of the Public Finance Act 1989 as “the goods or services that are produced by a department, Crown entity, Office of Parliament, or other person or body”. “Outcomes” are defined in s 2 as the “impacts on, or the consequences for, the community of the outputs or activities of the Government”.
249 Outcomes, being less tangible and more subjective than outputs, have proven to be more difficult to measure. The Public Finance Act 1989 inevitably focused a good deal of attention onto outputs due to the emphasis on outputs in forecasting the financial statements required under s 34. Section 35, for example, requires all departments, Offices of Parliament and Crown entities to include, in their annual financial statements, a statement of service performance specifying the outputs which have been produced. Now that initial difficulties in specifying outputs have been largely overcome, and that Ministers, Parliament and the public have much improved financial information by which to assess the performance of government agencies, more recently the emphasis has moved towards outcomes, and monitoring their achievement (East 1997).
250 Key result areas (KRAs) are essentially the contribution which each department or agency makes towards the government’s SRAs. They are incorporated into each chief executive’s performance agreement with their responsible Minister, and are expected to be expressed in a measurable way. Performance agreements are also, according to the State Services Commission, required to contain milestones by which progress towards KRAs may be measured (Boston et al 1996, 283). In this way, chief executives are given strong incentives to achieve KRAs, and thereby advance the government’s SRAs.
251 In the 1994–1997 SRAs, SRA 8 referred only to negotiating claims under the Treaty and made no reference to the economic and social disparity between Mäori and non-Mäori, or to the Treaty as a source of ongoing rights and responsibilities between the Crown and Mäori.18 It may be noted that Te Puni Kökiri’s “Post-Election Brief” of October 1996 commented on “a lack of clearly expressed political will . . . as shown in the absence of a Strategic Result Area covering the disparities” between Mäori and non-Mäori as underlying a “lack of commitment in departments” to Mäori development (13). The 1997–2000 SRA 8 refers not only to negotiation and implementation of Treaty settlements, but also contains a clause referring specifically to Crown policies and their responsiveness to the needs of Mäori.
252 The current SRA 8 states:
Treaty of Waitangi
Significant progress towards negotiating and implementing fair and affordable settlements to well founded grievances arising under the principles of the Treaty of Waitangi; and, consistent with the Crown as a Treaty partner, development of policies and processes that lead towards closing the economic and social gaps between Mäori and non-Mäori.
Particular emphasis will be placed on:
(i) Providing advice and support for the negotiation process, including developing processes that aim to ensure that claimants entering the negotiation process are appropriately represented and mandated.
(ii) Enhancing and improving the design, access to, delivery and monitoring of policies and programmes which impact on Mäori economic opportunity and social outcomes. [emphasis added]
253 The use of SRAs and the KRAs affords several benefits, but for present purposes two in particular can be highlighted. First, through KRAs, government policy expectations are built into the personal assessments of chief executives, thereby creating incentives to meet those expectations. With SRA 8 having been broadened, many departments are now required (through KRAs) to take concrete measures which will lead to a closing of the parity gap between Mäori and non-Mäori. Secondly, SRAs and KRAs make it possible to monitor progress towards policy goals. As part of its monitoring role, Te Puni Kökiri has reviewed the service delivery to Mäori of some departments. In 1996–1997 the Audit Office developed what it described in its 1997 Annual Report as a “framework by which an organisation’s capability to deliver effective outcomes for Mäori can be assessed” (Annual Report 1997, 37). In 1997–1998 it carried out audits in two public sector organisations to assess their respective capability to deliver effective outcomes for Mäori (Annual Report 1998, 37). In November 1998 the Auditor-General reported on the processes that government departments and Crown entities should include in order to be effective for Mäori (Report of the Controller and Auditor-General: Third Report for 1998). In short, as a result of the new SRAs and KRAs, departments’ paying lip-service to Mäori development should be simultaneously less likely to occur, and more likely to be exposed.
254 We now look more closely at state agencies concerned with the delivery of justice services and with Mäori policy. Before discussing the ministries most directly responsible for formulating policy affecting Mäori women, we briefly consider the role of three central agencies: the State Services Commission, Treasury, and the Department of the Prime Minister and Cabinet. These agencies no longer control the expenditure of departments or the staff they may employ, but rather monitor departmental performance and attempt to co-ordinate policy. They therefore have significant influence in a contestable policy-forming environment.
255 The State Services Commission (SSC) is headed by a Commissioner who has the following roles, functions and authority under the State Sector Act 1988:
256 The SSC’s main contribution to government SRAs is to develop the state sector’s capability to support government policy development and delivery. It also supervised the process by which SRAs and the Coalition Agreement was used to determine KRAs in performance agreements between chief executives and their responsible Ministers. Alongside its membership and evaluation roles, the SSC “promulgates and maintains appropriate values and standards of behaviour” for the public service (Strategic Business Plan 1997–2000, 3).
257 The SSC Strategic Business Plan 1997–2000 established a Mäori responsiveness strategy in 1994 with the following goals:
258 The second of these goals clearly places an onus on the SSC to develop its own capability and responsiveness to Mäori. However, a review of the SSC’s 1994/1995–1996/1997 Mäori responsiveness strategy found that
while training in Tikanga Mäori and Mäori policy issues had increased staff awareness, there was a need for more effective recruitment strategies for Mäori staff, and greater emphasis on the consistent incorporation of Mäori perspectives in the Commission’s output work. (Strategic Business Plan 1997–2000, 63)
259 The Strategic Business Plan stated that during the 1997/1998 year it would therefore give priority to:
260 The SSC now requires that all its analysts and advisors have, amongst their core competencies, an understanding of Treaty of Waitangi issues, and knowledge of Mäori perspectives with the ability to translate these into the SSC’s work. The SSC’s 1997/ 1998 annual report does not, however, contain figures showing the percentage of Mäori (or female) staff within the Commission.
261 The goals articulated in the Mäori Responsiveness Plan are also meant to feed through into the policy advice the SSC provides government in relation to its strategy for Mäori, and the SSC’s work in a number of other areas:
262 The SSC indicated a number of limitations of state agencies in the performance of state sector agencies vis-a-vis Mäori:
263 There is also, in the SSC’s view, a desire among state agencies to identify the plans, processes, programmes and policies which are working for Mäori, and to build on these in a more co-ordinated manner across agencies, rather than each agency producing individual, ad hoc policies and programmes. It provided examples of programmes which offer assistance and support to Mäori staff across all state sector agencies:
264 The SSC said that public service departments were required by s 56 of the State Sector Act 1988 to act as a “good employer” which means, among other things, that their personnel policies must recognise the aims and aspirations of Mäori people, their employment requirements, and the need for greater involvement of Mäori in the public service. This section also requires departments to prepare an equal employment opportunities (EEO) plan. Such plans usually included specific initiatives relating to improving the representation of Mäori within the organisation. The plans were expected to link the statutory requirements of the department with its business needs.
265 Increasing staff awareness and understanding of Mäori perspectives and of the Treaty of Waitangi were often a critical feature of such departmental plans. While the design of such training programmes was the responsibility of individual departments, some smaller agencies had indicated that they experienced logistical difficulties in providing such training independently and were beginning to develop collaborative approaches with other agencies.
266 We were told by the SSC that it would be extremely useful for the Law Commission to identify the systemic problems affecting policy formation and the delivery of services to Mäori, and give examples of “good practice” for state agencies. We have attempted to do this in chapter 6. As the central agency devoted to ensuring best practice and generally improving public sector performance the SSC clearly has an ongoing responsibility to consider these issues. It must also work with other agencies such as the Department of the Prime Minister and Cabinet and the Ministry of Justice to increase departmental understanding of the implications of the Treaty for their business.
267 The SSC is involved in a number of projects or ongoing activities designed to foster departmental understanding of Treaty of Waitangi issues and to encourage co-ordination of departmental activity in this area, including:
268 The Treasury “manages the Crown’s finances and is the government’s principal economic and financial advisor” (Annual Report 1998, 10). It is divided into five branches, the most relevant for present purposes being the Social Policy Branch which prepares analysis and advice on “the Government’s ownership of entities and its purchase or regulation of social services and public goods”, including health, education, welfare, housing, justice, Mäori affairs and the labour market (12). The Treasury’s Annual Report 1998 notes the role of Treasury officials in inter-departmental working parties and in providing advice to Treasury Ministers on social policy proposals, despite major responsibility for social policy formulation resting with other government agencies (13).
269 The Social Policy Branch reports to Treasury ministers on the expenditure proposals of the government’s social policy agencies, and reports on their budgets and financial performance. In this regard it may be noted that “the programme of mainstreaming coincided with a period of severe fiscal constraint” (Boston et al 1996, 157).
270 Treasury’s “Briefing to the Incoming Government 1996”, after referring to the parity gap between Mäori and non-Mäori, notes that “[a]lternative forms of service delivery for Mäori could also assist in improving outcomes”, and cites the examples of köhanga reo and kura kaupapa Mäori. It concludes:
Further analysis is required to understand better the cultural factors which may impede the effectiveness of current service delivery, and the ways in which such problems can best be overcome. (96)
271 Apart from contributing to the government’s SRAs in all areas, Treasury also provides policy analysis and advice in relation to Treaty claims settlements which, as noted above, are one of the two prongs of SRA 8. Treasury also participates in Treaty claims negotiations. Treasury’s Annual Report 1998 does not refer to any initiatives, outside the context of EEO, to ensure the responsiveness or sensitivity to Mäori needs or values of the department’s policy advice. Nor is there specific reference in its Departmental Forecast Report for the year ending 30 June 1999 to consideration of Mäori or the Treaty of Waitangi in the “quality parameters to be met by policy advice outputs”. These outputs fall under the headings of completeness, relevance, communicability, timeliness, cost-effectiveness and reliable quality assessment (77–80).
272 Key goals for the second year of Treasury’s EEO Management Plan 1996/1998 were recruitment and retention of women in the economic and financial analysis (EFA) class and in more senior positions, and recruitment of Mäori and Pacific Island staff, especially in the EFA class (Annual Report 1998, 112). As at 30 June 1998, women comprised 43.5 percent of all staff, and Mäori 3.8 percent, with a further 2.2 percent of staff identifying themselves as Mäori/European (114).
273 The Department of the Prime Minister and Cabinet (DPMC) advises the Prime Minister on policy and constitutional issues. Its Corporate Plan 1996/1997 states that it
contributes to the effective co-ordination of the work of the government across departmental lines, tests the quality of advice coming from departments and acts as an “honest broker” where there are conflicts over policy advice being offered by different parts of the public sector. (3)
274 As part of that co-ordinating role, DPMC advised the Prime Minister and Cabinet on the formation of SRAs for the 1997–2000 period. DPMC also provides policy advice and co-ordination in particular areas, including crime prevention. The Departmental Forecast Report for the year ending June 1999 states that DPMC is responsible for SRA 6 relating to safer communities. The report notes at page 4 that through DPMC’s Crime Prevention Unit (CPU), particular emphasis will be placed on:
275 The CPU participated in the Responses to Offending by Mäori project led by the Ministry of Justice and TPK (see paras 293 and 294). In addition, the CPU funds established a pilot community-based diversion scheme, Te Whänau Äwhina (see para 330).
276 The Department’s Annual Report 1998 does not contain a breakdown of staff by gender or ethnicity. It notes that the main focus of EEO policy for the 1997/1998 year was maintaining family-friendly policies and programmes, especially relating to child care (57). The report does not specifically refer to EEO initiatives directed at Mäori although it does mention that an EEO database was maintained and human resource policies were reviewed to ensure consistency with DPMC’s EEO goals (57). A formalised training policy is currently being developed which will help determine the training and development priorities for the department and will take into account factors such as EEO and the department’s commitment to training in Mäori culture and language (58).
277 Te Puni Kökiri (TPK) is the government’s principal advisor on the Crown’s relationship with iwi, hapü and Mäori, and key government policies as they affect Mäori. Te Puni Kökiri provides advice in four main areas (User’s Guide to Te Puni Kökiri, 5):
278 Te Puni Kökiri has a statutory responsibility to promote increases in levels of achievement by Mäori in the areas of education, training and employment, health, and economic resource development, and to liaise with and monitor the performance of government agencies providing services to Mäori (Ministry of Mäori Development Act 1991 s 5(1)). Te Puni Kökiri recognises that individual Ministers of the mainstream state sector agencies have the prime responsibility for ensuring that Mäori enjoy outcomes similar to non-Mäori. Te Puni Kökiri’s “Post-Election Brief” of October 1996 states its role in the environment of mainstream service provision to Mäori as follows:
In its policy role the Ministry [TPK] will assist the state sector to develop and implement policies to which Mäori people will respond positively, and which will reinforce each other across policy sectors. In its monitoring role the Ministry will:
• work with central Government to agree on appropriate measures of Mäori outcomes and to monitor progress in achieving improvements;
• ensure that effective monitoring arrangements are in place within departments, adapted to the needs of accountability mechanisms through the Audit Office, the Treasury and the State Services Commission;
• report to the Government and to iwi, hapü and Mäori on departmental performance, and the policy implications of deficiencies and successes;
• advise Government agencies on implementing best practice in the collection, analysis and evaluation of information on their Mäori clients.
279 Te Puni Kökiri identifies nine “output classes” for the 1997/1998 year in its current Departmental Forecast Report. Each class represents a different area of policy (for example, Mäori education) in respect of which TPK will provide advice, and monitor and liaise with the providers of services. The forecast report also specifies the following KRAs for the 1997/1998 year:
280 Te Puni Kökiri’s 1997 and 1998 annual reports do not contain a breakdown of staff by gender and ethnicity: the 1996 report, however, indicated that 72 percent of the Ministry’s staff were of Mäori descent, and 54.2 percent of staff were female (Annual Report 1996, 18). Their Annual Report 1997, however, notes the “general view that suggests that EEO has an intrusive effect on tikanga Mäori”, and states that if this is so,
the Ministry will need to define tikanga as a first step towards developing and implementing some of the practices which would support EEO in this organisation which has a different set of cultural values than any other Government agency. (Annual Report 1997, 12)
281 The Ministry of Women’s Affairs (MWA) is the government’s primary provider of gender-specific advice. MWA’s Departmental Forecast Report for 1998/1999 states that the Ministry’s role is to achieve the government’s goals for women and nga wahine Mäori of:
282 The MWA’s advice to the government aims to significantly improve women’s lives and addresses areas where women are disadvantaged in relation to men, and where Mäori women are disadvantaged in relation to non-Mäori women. The MWA uses gender analysis to examine the differences in women’s and men’s lives and to identify the underlying causes of these differences.
283 The MWA provides advice across a range of government activity including education, the labour market and justice. Notably, the 1998/1999 forecast report refers to “contributing to human resources development across government, including assisting the public service to enhance its Mäori policy skill base at all levels” (Departmental Forecast Report, 12).19
284 The 1998/1999 forecast report refers to MWA’s concern that the quality of policy advice across all government agencies be improved “through increased use and understanding of both gender analysis and Treaty analysis” (Departmental Forecast Report, 12). However, we were advised in an email from the Ministry dated 21 December 1998 that:
The Ministry is currently developing a Treaty Analysis Framework, which will assist in understanding and addressing policy issues in relation to the Treaty of Waitangi and wahine Mäori.
285 The MWA’s focus on Mäori women is reflected in its KRA’s 1998/1999:
286 The Policy Advice Output 3 (Safety Justice and Well-being) contained in the forecast report relates to advice on public policy issues which assist women and nga wahine Mäori to achieve improved access to justice, protection from violence and well-being through life. This leads to one of the key priorities for the MWA which is to provide government with advice on justice sector issues impacting on women and nga wahine Mäori, including Mäori women’s access to justice.
287 In its Responsiveness to Mäori Plan, the MWA identifies the need for kaupapa Mäori to be reflected in its policy advice and for ministerial services to reflect the views, opinions and priorities of Mäori women. The Ministry’s information services should also have appropriate input from Mäori women, and reflect Mäori women’s priorities, aims and aspirations.
288 The Ministry of Women’s Affairs aims to assist with:
The MWA recognises the importance of making positive achievements for Mäori women in the context that to do so will contribute to the advancement of the wider Mäori community.
289 The Ministry of Justice came into existence on 1 October 1995 as part of the restructuring of the Department of Justice. The Ministry’s Corporate Plan: 1997/1998 notes its five strategic priorities, which are to:
290 These priorities are reflected in the Ministry’s internal organisation into three policy and support groups (public law, criminal justice and corporate services), the Chief Electoral Office, and the Office of Treaty Settlements. A separate purchase advice team provides advice directly to the Secretary for Justice on purchase priorities across the justice sector, while the Office of the Legal Counsel provides internal legal leadership and legal advice.
291 In its 1996 “Briefing Paper for the Minister of Justice” the Ministry of Justice lists the challenges it sees facing the justice sector in New Zealand over the next 3 to 5 years. These challenges include:
292 The Ministry has two roles in respect of Treaty of Waitangi policy:
(i) Through its role as Chair of the recently-established officials Treaty Strategy Committee and the Officials Committee to the Cabinet Committee on Treaty of Waitangi issues, the Ministry aims to ensure that Cabinet Ministers receive advice on Treaty matters that is coherent, consistent, and timely.
(ii) In terms of its substantive role, the Ministry provides advice on constitutional implications of a variety of Treaty issues. (Corporate Plan 1997/1998, 14)
293 The 1996 briefing paper refers to the need to ensure that the criminal justice system “takes appropriate account of different cultural perspectives, especially Mäori and Pacific perspectives, on how offences should be dealt with within a legal framework which is fair to all members of society” (17). The Ministry is leading the development of a Responses to Crime Strategy (RCS), a significant aspect of which is the development of responses to offending by Mäori. Under the Responses to Offending by Mäori project, the Ministry and TPK head an inter-agency team developing strategies to reduce Mäori involvement in the criminal justice system. These strategies include those for preventing entry to the criminal justice system, promoting rehabilitation of offenders, and strengthening the capacity of communities to deal with and prevent offending.
294 The briefing paper discusses two alternative approaches to developing Mäori criminal justice policy: examining the scope for incorporating “cultural factors” into (mainstream) treatment of Mäori offenders; and secondly, considering the extent to which criminal justice processes and programmes may be delivered by Mäori themselves. In respect of the first of these approaches, the paper acknowledges that
[t]here is little doubt that some Mäori do not regard the present system as reflecting their values and concepts of justice. There appears to be considerable and unused potential to include Mäori and Mäori tikanga within the criminal justice system. Part of the difficulty is that existing provisions in legislation allowing for the treatment of offenders in a more culturally sensitive manner and in a more culturally appropriate environment are either little used or have not been evaluated in any systematic way. (111)
295 In respect of the second approach, the briefing paper identifies models of service delivery, especially in the health sector, which have allowed for greater Mäori autonomy and more genuinely bicultural service provision. The paper concludes that
[t]he development of any strategy for responding to offending by Mäori needs to examine whether these sorts of models or components of these models are appropriate and/or applicable within the criminal justice sector or whether other models are needed. (112)
296 The last major aspect of the Ministry’s function vis-a-vis Mäori is the provision of advice concerning, and the negotiation and settlement of, Treaty claims. These tasks are carried out by the Office of Treaty Settlements as a separate office within the Ministry. We do not discuss its role in any detail (see para 232).
297 Before the merger of the New Zealand Income Support Service with the New Zealand Employment Service, the Department of Social Welfare (DSW) was divided into four business units (Directory 1996, 3):
298 On 1 October 1998, Income Support was merged with the Employment Services of the Department of Labour to become Work and Income New Zealand (WINZ). The Employment Services and Income Support (Integrated Administration) Act 1998, which merged the Employment and Income Support Services, was passed on 31 August 1998. However, the merger was too recent to have produced information for analysis and so our discussion of Income Support is based on information compiled while it was still a part of the Department of Social Welfare.
299 In 1986, DSW published a major report, Puao-Te-Ata-Tu: Report on a Mäori Perspective within the Department of Social Welfare compiled by its social policy agency. This report was the result of wide consultation with Mäori by a Ministerial Advisory Committee chaired by the late John Rangihau. The report concluded that DSW needed to make major changes in its policy, planning and service delivery. The Committee according to the 1994 report, Te Wakahuia o Puao-Te-Ata-Tu “had identified a number of problem areas – policy formation, service delivery, communication, racial imbalances in staffing, appointment, promotion and training practices” (para 5.1).
300 The Committee was required to investigate and report to the Minister on an approach which would meet the needs of Mäori in policy, planning and service delivery in the Department of Social Welfare. The resulting report contained 13 recommendations impacting upon “income support policies and practices, staff training and the overall departmental culture”. All recommendations were accepted by the Minister of Social Welfare of the time.
301 The essential spirit of Puao-Te-Ata-Tu lies in its commitment to partnership, and the needs, interests and aspirations of Mäori within the wider New Zealand society in which all peoples have a share. The Department’s 1994 report, Te Punga: Our Bicultural Strategy for the Nineties, notes that Puao-Te-Ata-Tu aims to give effect to that spirit through:
302 A major outcome of the report was the introduction of a range of measures designed to maintain children and young persons in the care of their own communities, leading to a large reduction in the numbers being taken into institutional care. One of the ways this was achieved was through the commencement, soon after the report, of devolution of care and protection services to Mäori.20 A Komiti Whakahaere was established to advise the Director-General of Social Welfare on Mäori issues, and bicultural training was introduced throughout the Department (Te Wakahuia o Puao-Te-Ata-Tu, para 5.2).
303 The spirit of Puao-Te-Ata-Tu was also reflected in the Children, Young Persons and Their Families Act 1989 (CYPF Act), most notably in the use of family group conferences (FGCs) both in care and protection and in youth justice matters. Family group conferences involve the child or young person who is central to the concerns at hand, and also the child’s family group which is defined in s 2 as including “the child’s or young person’s whänau or other culturally recognised family group”. Ideally, the FGC will be run by the family group, or at least according to its wishes. The decisions which come out of the conference should be those of the family group, not those of officials, although under s 34 the Director-General of Social Welfare may refuse to give effect to a decision of a FGC which is impracticable or inconsistent with the principles in ss 5, 6 and 13 of the CYPF Act.
304 The Department of Social Welfare underwent a major restructuring in 1992. It was at this time that the existing operational divisions were either reaffirmed or established. The Community Funding Agency was established, and the emphasis in Income Support and CYPS was changed. According to the Department’s “Post-Election Briefing Paper 1996”, Income Support was to seek to “maximise the opportunities for beneficiaries to move towards self reliance” (17); CYPS now concentrates more on crisis intervention and less on ongoing care which it tended to contract out to private agencies (with CFA partially funding the service provider).
305 Partially as a result of restructuring, which saw the appointment of new staff unfamiliar with Puao-Te-Ata-Tu, and as noted in DSW’s “Post Election Briefing Paper” the “Department’s commitment to bi-culturalism and the Treaty of Waitangi . . . weakened” in the early 1990s (16). The Department has sought to keep alive and working the kaupapa of Puao-Te-Ata-Tu in two documents published in 1994: Te Wakahuia o Puao-Te-Ata-Tu, and Te Punga. Both are intended to be working documents outlining the expectations of the Department of staff at all levels.
306 Te Punga specified a number of short term (1 year) and medium term (1–3 year) strategies in the priority areas of policy and service delivery, management, staff matters and sensitivity to customer needs which would give substance to the Department’s bicultural approach. It also identified where responsibility for the actions required under each strategy lay.21 In the area of policy and service delivery, Te Punga states:
Accepting our obligations to the Treaty involves a shift in attitudes and a revision of the cultural assumptions which underpin social policy and planning of service delivery. It is not simply a matter of adding a tangata whenua flavour to existing assumptions. The challenge of the Treaty and of Puao-te-Ata-tu is to ensure that our advice to Government, and our service delivery planning, addresses tangata whenua needs in tangata whenua terms. (16)
307 Income Support told us that one of the biggest advances it had made in recent years was the implementation of “customised service” whereby each customised service operator has a caseload of about 250 clients. This means that a client sees the same staff member each time he or she contacts Income Support and that both the client and the staff member become more familiar with the client’s needs. This service is now fully operational and is being applied throughout New Zealand as part of WINZ procedures.
308 Income Support also highlighted in their discussions with us the introduction of a call centre operating on an 0800 number. This enables clients to phone in for basic enquiries and for “technical and procedural” changes to be made on their file or in relation to their benefit. This system is also fully operational throughout the country and the 0800 number is listed in the most recent telephone books.
309 Te Puni Kökiri’s 1996 report, NZISS: Review of Service Delivery to Mäori, commented on Income Support’s service delivery to Mäori and contained recommendations aimed at improving Income Support’s performance in the areas of planning and reporting, service delivery, information collection and use, evaluation, and human resources.22 Income Support has a duty to report back to TPK on its progress towards implementing these recommendations, and the first such report is currently being prepared. The reports will cover monitoring comparative Mäori and non-Mäori data, the impact of programmes and services on Mäori, and use survey results to improve service delivery to Mäori and target Mäori in communication strategies (DSW Annual Report 1997, 9).
310 The Community Funding Agency (CFA) funds selected organisations which are providing services to the community. The organisations apply for funding and are assessed on:
311 The funding budget was $102 million dollars for the 1997/1998 financial year. Mäori providers received in the region of $15.9 million (as compared with $5.3 million dollars in 1992). During the 1997/1998 financial year the CFA funded 464 Mäori groups who defined themselves as Mäori providers, 153 being “iwi-based”, 182 “pan-tribal”, and 129 describing themselves as being both. They provide a range of services including social support (family and youth), counselling, budget advice, relationship counselling, violence work, refuge work, emergency housing, and support for the disabled. The agency anticipates that both iwi and non-iwi based Mäori providers will be more successful in reaching the target groups than some of the traditional service providers. However, it is considered necessary and important to have both Mäori providers and non-Mäori providers so that Mäori (and other clients) can choose which to go to.
312 The CFA is required to collect information about the ethnicity and iwi affiliation of the service provider’s clients. In relation to clients referred by CYPS, about 40 percent of the children are Mäori. The agency finds that where it assists different service providers working in different areas of need, many of them tend to work with the same families. In the past, many eligible families have not accessed services, but this is now changing. It is clear, however, that there is still a “hidden need” and CFA is working on ways of identifying and providing appropriate resources to cater for new areas. An annual service planning process helps identify local needs and priorities. The CFA’s “Post-Election Briefing Paper 1996” notes that this process has been supplemented by a new “national needs indicator index” which aims to provide objective criteria upon which to allocate funding to particular regions, including:
313 One difficulty which the CFA has identified which makes service provision difficult in some areas is the lack of resources within that area. If a particular region or town is under extreme stress, for example, high unemployment or low income, it may also lack individuals or organisations able to provide services eligible for CFA funding. In this regard it may be noted that CFA only partially funds bodies with which it contracts.23
314 Since 1995, the CFA has worked with CYPS and SPA on the development of Iwi Social Services. Through Iwi Social Services, CFA aims to give iwi responsibility for providing appropriate care and protection to Mäori children within their rohe. This strategy involves a major transfer of resources from CYPS to Iwi Social Services, with the eventual aim of providing all Mäori children and young people referred to CYPS with the option of being cared for by Iwi Social Services by the year 2000 (Annual Report 1997, 15). It is felt that the appropriate way to achieve workable results is for CYPS to hand over responsibility for services gradually, so that resources and expertise can be built up over a period of time.
315 During the 1998/1999 financial year, the CFA expects to approve between 15 and 17 Iwi Social Services and to contract with a further 17 to 20 for services devolved from CYPS. Thus, by June 1999, it is expected to have approved up to 30 Iwi Social Services and to have formed contracts with up to 27 (Business Plan 1999, 29). Standards for approval of Iwi Social Services were developed in consultation with iwi in 1995. In order for an Iwi Social Service to gain approval it must show that:
316 The CFA highlighted crime prevention programmes as a priority for the 1997/1998 year (DSW Business Plan 1998, 30). It implemented the “Wraparound” programme in South Auckland, a prevention programme aimed at young Mäori at risk, and using multi-disciplinary strategy for reducing youth offending (see North Health, Wraparound Model of Care: Individualised Care, 1996).24 The programme aims to provide comprehensive, individualised care for young people (and their family or whänau) who are experiencing severe emotional, mental or behavioural disturbances. It involves co-ordinating justice, education, welfare, health, courts and community corrections services to provide “individual care through therapeutic case management”. The programme has been granted $1 million per year for 3 years.
317 The Children, Young Persons and Their Families Act 1989 (CYPF Act) involved a fundamental rethinking of the basis on which decisions are taken about children and young persons who come to notice on the grounds of care and protection or youth justice. Before this Act, decisions about care and protection of children and offending behaviour of young people were the exclusive province of social work professionals with little participation of families in the decision-making process. This had dire consequences for many Mäori families as disproportionate numbers of children and young people were removed from the care of their whänau and placed in the care of other (often non-Mäori) families.
318 The Children, Young Persons and Their Families 1989 Act was founded on a recognition that a fundamental change in outcomes could only be achieved by increasing the participation of families in the decision-making process. The family group conference process is a reflection of these goals and seeks to place the family at the centre of the decision-making process. Under this process; it is the family group which is charged with developing appropriate responses to the issues which led to the conference and taking decisions about what actions are required. While the Children, Young Persons and Their Families Service (CYPS) has the power to challenge the decision of a family group conference, this option is rarely used and then only if the social worker has serious doubt that the decision is in the best interest of the child.
319 Under the Act, Iwi Social Services operate in the “care and guardianship” areas (that is, in the provision of care-giving services), not in the areas of care and protection or youth justice.25 The contracting of Mäori provider organisations to deliver social services to Mäori families and children, in particular through the negotiation of iwi social services contracts, is another development which is expected to result in significant improvement in Mäori involvement and participation in justice processes, including that by women. The process recognises that the best outcomes are likely to be achieved for Mäori children, families and communities when Mäori are fully involved in the delivery of services to Mäori people.
320 A factor which may limit the growth of Iwi Social Services is the difficulty involved in contracting with providers in regions with small Mäori populations. The level of resources handed over to Iwi Social Services in a region could raise issues for providers working with Päkehä families, or with Mäori families who want a choice of non- Mäori or Mäori service delivery.
321 The Children and Young Persons Service is seeking to improve its performance in the area of child protection. A resource book containing Mäori input, “Recognition of Abuse and Neglect”, was provided to all staff working in this area during the 1996–1997 financial year (Annual Report 1997, 14). However, the annual report is limited with regard to initiatives targeting Mäori. These include a review of the Children’s Young Persons and Their Families Act 1989, undertaken in 1997–1998. The review identified the issues for Mäori, including the huge potential of the Act for Mäori, as it recognised Mäori cultural values. The review also noted that approximately 50 percent of young people who re-offend are estimated to be Mäori.
322 The Social Policy Agency (SPA) drafted Te Wakahuia o Puao-Te-Ata-Tu in 1994 “as part of a series of initiatives intended to move the Social Policy Agency towards bi-culturalism and our commitment to the Treaty of Waitangi” (para 3.1). It has provided the policy advice to help the expansion of the Iwi Social Services programme (Annual Report 1998, 23). The SPA also states in DSW’s Business Plan 1998 that “a heightened focus on Mäori contributes to meeting their needs and aspirations” (32). The Strengthening Families initiative involving the Department of Social Welfare, the Ministries of Health and Education and the Treasury, in consultation with a number of other agencies (including Te Puni Kökiri and the Ministry of Justice) is focused on developing a range of proposals to strengthen and support family cohesion.
323 The Department of Social Welfare’s annual reports do not contain a breakdown of staff by gender or ethnicity, so as to allow an assessment of progress on one of the human resource implications of Te Punga. However, there are a number of qualitative EEO reports (which include ethnicity and gender) that are reported on annually to the State Services Commission. In addition, the Annual Report 1998 notes that a major review was begun during the 1997–1998 financial year to evaluate how effectively strategies in Te Punga were being implemented. Responses from management and staff will be collated and reported on during 1998–1999 financial year (Annual Report 1998, 31). The Department is committed to developing policies which ensure that Mäori staff have the resourcing and recognition necessary to participate fully and progress within the Department. Training in bicultural awareness for all staff is also a priority (DSW EEO Programme 1996–1999, 6).
324 In 1994, TPK made the following statement in correspondence to the Minister of Police about police responsiveness to Mäori:
While Te Puni Kökiri is supportive of the development of Responsiveness Plans by Districts, we are concerned at the lack of direction and support given by National Headquarters. There is also an absence of effectiveness measures such as measures to determine the reduction of Mäori offending or the improvement of the profile of Police among Mäori. . . . Te Puni Kökiri is also concerned at the focus on Districts to the exclusion of other levels and functions of the NZ Police. In particular national policy can be developed without regard to Mäori issues or concerns since there are no measures of accountability to that level . . . (cited in Whakakaupapatanga Tiriti 1998, 15)
325 Three years later, the Policing 2000 Strategy Group launched the Police’s Urupare Whitiki: Build Responsiveness to Mäori strategy. The “project initiation package” outlining the contents of the strategy acknowledges at the outset that
[t]he response of the New Zealand Police to date has fallen short of a full commitment to the Treaty of Waitangi and therefore to Mäori as a Treaty partner and stakeholder of the Police. (3)
326 The strategy articulates the practical need to address the over-representation of Mäori at all stages of the criminal justice system, based on the serious economic and social cost to the government, Mäori communities and individuals, and society in general. The strategy recognises, however, that previous police policy was based on disproportionately high rates of Mäori offending and victimisation (a “reactive” approach), whereas a proactive policy, using the principles of the Treaty of Waitangi as its formal base, is now required. A Treaty-based approach is also seen to establish the context in which other initiatives (such as recruiting, training, iwi liaison) can be placed. It also hopes to reduce the sense of isolation felt by Mäori staff by integrating Mäori values and initiatives into their work environment.
327 The strategy lists three key elements to establishing a partnership between the Police and Mäori:
328 The New Zealand Police Annual Report 1998 notes that Te Urupare Whitiki continues as an integrated development across all service delivery areas of the Police. All districts have “responsiveness” plans and a national strategy was due by December 1998. This work is supported by Iwi Liaison Officers, appointed in consultation with Mäori. A Cultural Affairs Adviser has also been appointed. This is a senior management position with responsibility for the development of Te Urupare Whitiki (Annual Report 1998, 18).
329 The New Zealand Police Corporate Profile 1996 lists a number of ongoing strategies in support of commitment to the Treaty:
330 Through Safer Cities Councils (which are not specifically a police initiative but receive major input from police) efforts have been made to reduce Mäori youth offending. Increased use has also been made of Mäori wardens to deal with youths at risk on the streets, particularly at night. In West Auckland, Police have participated in the Te Whänau Äwhina diversion scheme set up by the Crime Prevention Unit, under which selected Mäori youth are considered by a Mäori committee which aims to find ways of helping the offender out of the justice system. Part of the focus of Urupare Whitiki, however, is to address and improve on the ad hoc and regional nature of police responsiveness to Mäori needs.
331 There have been some initial studies into the place of women, and in particular Mäori and Pacific Islands women, as staff members of the New Zealand Police. Since 1991, the percentage of women police officers has risen from 7 to 14 percent. However, police personnel staff are starting to question why no women police officer has, to date, been promoted beyond the rank of chief inspector. A letter dated 23 January 1997 from the Commissioner of Police, Peter Doone, to the Law Commission states that they have begun to examine recruitment strategies to target women, internal support groups for female staff, the roles that women are taking within the police force, and methods of enhancing career paths.
332 The Department for Courts Annual Report 1998 lists the department’s purpose as being to contribute to justice in the community through:
333 The Department came into existence on 1 July 1995, taking over the responsibilities of the Courts and Tribunals Division of the former Department of Justice. Within the Department there are four operational units:
334 In its Strategic Plan 1996–2000, the Department acknowledges the need to
consider how the courts and tribunals could better reflect the Treaty partnership between Mäori and the Crown, particularly given the significance of the justice system in this partnership. (11)
It states that this can be achieved through:
335 The Strategic Plan notes the establishment of the Tu Tangata Council, which
brings together on a regular basis prominent Mäori to guide the Department in its development of policies and services and the integration of tikanga Mäori into its operations. The Department sees the status and independence of this Council as a more appropriate expression of “partnership” than an in-house group whose members are essentially employees. (11)
336 The Department’s Forecast Report for 1998–1999 lists as one of five key result areas for the current year reviewing Mäori court and tribunal user’s needs and developing strategies to enhance the Department’s responsiveness to Mäori court users. Such strategies include fostering the positive participation of Mäori in the criminal justice system, and contributing to reducing the impact of crime on Mäori in terms of offending and victimisation (8). An important improvement will be putting in place a national index system for Mäori land ownership (9).
337 In the early 1990s the Department established a database to monitor and report on core equal employment opportunity (EEO) statistics. The Department’s Annual Report 1998 shows that Mäori staff increased from 13.1 percent to 18.3 percent of the total staff over the course of the preceding financial year. The Department has also set up an external EEO scholarship programme for designated groups, including Mäori, with the aim of recruiting students under the programme to the Department upon graduation. It is thought that this will meet “the Department’s needs for increased capability generally and increased representation from particular cultural groups”. Three students were sponsored under the programme during the 1996/1997 year (Annual Report 1997, 63; the programme was not referred to in the annual report for the following year).
338 The Department has mentioned to us a number of organisations which assist the Department in its service delivery at the court, including Friends of the Court, Court Aid, Mäori wardens, Matua Whangai, and Prisoners Aid Rehabilitation Service (PARS). The Department considers these groups provide a valuable service to Mäori: they help defendants fill out the forms correctly, ensure they know which courtroom they are appearing in, and that they understand the sentence or order imposed. These groups are voluntary, but in some instances limited funding is provided by the Department (for example, travel expenses). The Department also endeavours to provide office space. In a letter dated 4 July 1997, the Department’s Communication Adviser stated that “[t]he informal feedback we receive via the Court Managers would suggest that the relationship is very effective for Mäori”.
339 The Department of Corrections was established on 1 October 1995. The Department manages all custodial and non-custodial sentences imposed by the courts, except fines. These include prison sentences, periodic detention, and community service and supervision. The Department states in its Departmental Forecast Report for 1998–1999 that its purpose is to contribute to safer communities through reducing re-offending by the effective management of:
340 The Department is divided into eight services and groups: the Public Prisons Service, Community Probation Service, Psychological Service, Contract’s Group, Policy and Service Development Group, Strategic Development Group, Finance Group, and Internal Audit. It employs over 4,000 full-time and part-time staff nation-wide.
341 The Department’s Annual Report 1998 states that Mäori are over-represented in terms of both custodial and community-based sentences with Mäori inmates accounting for over 50 percent of the prison population (22). One of the Department’s key result areas for the 1998/1999 year is “recognition of the particular needs of Mäori in terms of reducing re-offending” (Departmental Forecast Report 1998/1999, 24). This KRA seeks to redress disproportionately high Mäori offending and develop targeted interventions whose success can be measured (Department Forecast Report, 24).
342 In the 1997/1998 financial year, a pilot Mäori Focus Unit was successfully established at the Hawkes Bay Regional Prison, and guidelines were developed to evaluate the effectiveness of programmes specifically designed for Mäori. The evaluation of such programmes was substantially completed during the year (Annual Report 1998, 17). In the 1996–1997 financial year, an inventory of Mäori programmes and policies was compiled and analysed. These included participation in the inter-departmental Responses to Offending by Mäori project (Departmental Forecast Report 1997– 1998, 41), and the Psychological Service’s development of a bicultural therapy programme (Annual Report 1997, 10). This programme was developed due to concerns about the responsiveness of the Service to Mäori, despite initiatives and policies to address cultural perspectives which were already in place (Department of Corrections “Post Election Briefing”, 54).
343 The Department for Corrections’ Cultural Responsiveness Policy (CRP) and the 1998/1999 Cultural Responsiveness Framework is aimed at developing a culturally responsive staff that can contribute to the Department’s goal of reducing re-offending by Mäori. The policy recognises that the Department, as a Crown agency, is required to demonstrate a commitment to the Treaty of Waitangi. This commitment to the Treaty of Waitangi is stated as a commitment to
responsiveness to the needs of those to whom we provide services and those subject to our custody, as well as the need to recognise and respond appropriately to the needs, aims, and aspirations of the diverse cultural and other ethnic groups that constitute our society.
344 The Department’s Policy and Service Development Group is also currently drafting a policy on the Department’s obligations under the Treaty (Corrections News, September 1997, 7).
345 The CRP would appear to be largely aimed at educating non-Mäori managers who are in decision-making roles within the Department, and enhancing their cultural responsiveness, although the primary focus is to enhance the skills of employees who work with offenders. During 1998 and 1999 general managers of services will be exploring the issue of more closely aligning the ethnicity of employees with that of the offenders with a view to developing specific strategies and a time frame to achieve those strategies by June 1999. As at June 1998 there were 49 Mäori managers employed by the Department of Corrections (approximately 15% of managers in the Department). It does not appear to be aimed at increasing the proportion of Mäori managers, although cultural competency requirements within job descriptions may have this effect. The Department’s annual reports do not contain a breakdown of staff by gender or ethnicity although figures are available on request; at 30 June 1998 there were 766 permanent Mäori employees. The Department has a priority to increase the proportion of Mäori at all levels and its 1997/1998 EEO Framework includes a number of strategies to increase the particular proportion of Mäori in management.
346 Three scholarship schemes are presently operating to encourage Mäori to complete qualifications relevant to the Department’s work and take up positions in the Department:
347 The Community Corrections Service of the Department has released a document entitled Our Strategic Plan to Address Mäori Issues 1997–2000. The plan sets out short and long-term strategic result areas. Initiatives to be undertaken to address offending by Mäori include
increasing training and strengthening support for Mäori staff; developing and implementing local programmes to address offending by Mäori; convening working parties to collate and report on programmes and initiatives being undertaken currently with Mäori offenders; promoting research proposals on community-based programmes for Mäori offenders; initiating and facilitating positive communication with iwi and Mäori programme providers. (Department of Corrections “Post Election Briefing”, 52)
348 Support for Mäori and Pacific Island staff includes strengthening of Mäori and Pacific Island staff networks, open and increased consultation and communication, and providing appropriate training of Mäori staff, especially management training (“Post Election Briefing”, 52).
349 The Legal Services Board (LSB) came into being as a Crown entity on 1 February 1992. According to its 1997 publication, Legal Services: a Community Resource, it is charged with the responsibility of “making access to the law and the legal system more available through the provision of legal services to people who, for one reason or another, might not otherwise have had access” (5). The Board is constituted under s 94 of the Legal Services Act 1991 and its principal functions are set out in s 95. They include:
350 The LSB has overall responsibility for the provision of publicly funded legal services through its funding, management and monitoring roles. The day-to-day administration of legal services, however, is largely devolved to District Legal Services Committees, who use the funds allocated to them by the LSB to fund, within their district:
351 The Committees oversee the processing of applications for criminal legal aid and civil legal aid within their districts. They are also responsible for identifying legal services needs. Under the Legal Services Act 1991 s 154 the establishment of community law centres is the responsibility of District Legal Services Committees. If there is no community law centre in a district, each committee must consider, every 2 years, whether one should be established.
352 Under ss 98 and 117 of the Legal Services Act 1991, one member of the LSB and one member of each District Legal Services Committee is to be appointed by the Minister of Justice on the nomination of the Minister of Mäori Affairs. Two members of each District Legal Services Committee are to be appointed by the Minister of Justice on the joint nomination of the Minister of Consumer Affairs and the Minister of Women’s Affairs: those members are also reserved places on the LSB.
353 For the year ended 30 June 1998, $68.430m (81.6 percent) of the LSB’s total expenditure was devoted to legal aid, $4.376m (5.2 percent) to the Duty Solicitor and Detention Legal Assistance Schemes, $3.875m (4.6 percent) to administration, $3.895m (4.6 percent) to community law centres and $3.254m (4 percent) to legal research and education (Annual Report 1998, 49). The level of funding for community law centres is determined by the LSB but the money comes not from the government but from interest on solicitors’ trust accounts which is held in the New Zealand Law Society Special Fund. There are currently 19 community law centres funded by the LSB throughout New Zealand. All community law centres have a strong Mäori focus and four, one each in Auckland, Wellington, Christchurch and Dunedin, are specifically dedicated to Mäori.
354 The LSB’s Statement of Intent 1 July 1997–30 June 2000 lists, among the values of the Board, consumer focus, customer sensitivity, and commitment to Treaty principles. The Board’s public documents provide few obvious examples of legal services targeted at Mäori, although the Annual Report 1997 notes legal aid funding for claims to the Waitangi Tribunal (62), funding of Mäori Law Centres (44), and the use of Mäori and Pacific Island advisors in producing pamphlets concerning legal aid in a number of languages (20). The Annual Report 1998 notes an upsurge in demand for Waitangi Tribunal claims due to the retirement of the Crown Forestry Rental Trust as a major funder (30). Objectives for the 1998/1999 year include devising new instructions dealing with civil aid for cases coming before the Waitangi Tribunal and making a series of four videos aimed at improving public understanding of the legal, social and political effects of the Treaty of Waitangi and the workings of the Waitangi Tribunal (Annual Report 1998, 35).
355 In 1997 the LSB set up a Mäori advisory committee. Its role is to supplement the Mäori perspective on the Board’s operations and decision-making provided by the mandatory Mäori appointees. It aims to provide feedback on district legal services committees’ performance, suggestions for the improvement of legal services, and the means by which the existence of those services can be effectively communicated to their respective communities. As the Board employs only seven staff, an advisory committee was preferred to appointing staff within the Board itself.
356 Four features emerge from this review of the policies of departments and the Legal Services Board with respect to Mäori women in this chapter. First, there is evidence of a desire to be responsive to Mäori and to encourage Mäori participation in most organisations. There is little evidence, however, of policy initiatives which specifically focus on the value of Mäori women in New Zealand society.
357 Second, although there is a general recognition of the importance of the Treaty of Waitangi, there is less clarity about how it may be translated into specific, measurable outputs and outcomes.26 This may be partly attributable to the fact that until the second set of strategic result areas was formulated for the 1997–2000 period, the government’s strategic priorities did not include the reduction of social and economic disparities between Mäori and non-Mäori. The Treaty was seen solely as the source of claims to be negotiated and settled. Thus it is only recently that many departments have had to include in their key result areas any references to the Treaty or improvements in the socio-economic position of Mäori.
358 Monitoring of the state’s performance in tailoring services and policy to Mäori has been institutionalised through Te Puni Kökiri. Its reports on individual departments contain suggestions on how they might improve their delivery of services to Mäori, or incorporate Mäori views into their policies and practices. The recent expansion of the role and resources allocated to the Ministry’s monitoring and evaluation group reflects the greater emphasis now placed on this aspect of its work. The importance of monitoring is reinforced by the comments made by women whose views have helped shape this paper, which were often disparaging of government services.
359 Third, there is little evidence of a common understanding of the Treaty and its implications across the state sector, from which the particular needs of individual agencies may then be developed. General comments about partnership, responsiveness and representation were common to most departmental documents we examined, however, these comments reveal little about how a department incorporates the Treaty into its work, or what it understands the Treaty to mean. There is a need for Treaty analysis to become part of policy advice. The Ministry of Women’s Affairs is currently developing a Treaty Analysis Framework (see para 284) and we suggest that Treaty analysis can be structured to encompass principles, outcomes and their measurement in the ways described in chapter 6.
360 Our fourth point is a caveat: any assessment of departmental performance should not overlook the contestability of policy proposals and the climate of fiscal restraint in which most government services have been delivered since the late 1980s. Policy is first contested within departments, so that a particular programme tailored to Mäori must be considered alongside other programmes and their relative priorities established. But even accepting resource constraints, it must be questioned whether some improvements (for example, the incorporation of Treaty analysis into policy making) could in any event be made at little or no additional cost. An important consideration, however, is that cost must be balanced against benefit, and improved outcomes for Mäori must outweigh the cost.
361 Mäori women are, and will remain, vulnerable so long as there is a failure in justice sector policies to acknowledge Mäori cultural values and in particular the value of Mäori women within their whänau. The risk in failing to recognise Mäori cultural values is that the needs of Mäori women may be seen as being no different from those of non-Mäori women or Mäori men.
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