by Kim Workman
Justice and Dirty Politics
For
those interested in the idea and principles of justice, last month was
something of a roller coaster ride. The
‘Dirty Politics’ saga revealed not only actions and activities that bore
little resemblance to our ideas about
how democracy should work, but exposed a political leadership that was
mean, vengeful, and inherently
evil. By way of contrast, there were
public acts of peacemaking and reconciliation of the highest order, which stand
as shining exemplars of the way in which
justice should be done. It brought to
mind the opening paragraph of Charles Dicken’s “The Tale of Two Cities”.

Let’s
get the bad stuff over with first. The
‘Dirty Politics’ saga revealed a Minister of Justice who believed that if you
are wronged, you should ‘give back double;, ’that if you can’t be loved, the
next bests thing is to be feared. Whatever
happened to the possibility of respect?
The
whole ‘dirty politics’ debacle was gut-wrenching. New Zealand has been served in the past by
some outstanding Ministers of Justice; Jack Marshall, Ralph Hanan, Martin
Finlay and Geoffrey Palmer come to mind.
They were all people of principle; people who had a vision for a fair
and equitable society, and whose decisions were not based on ‘vengeance’ or pay
back, but on the creation of a fair and peaceful society. And now this.
Justice to Be Proud Of
The
Robson Hanan Trust which I founded in 2009, is named (with the consent of the respective
families) after Dr John Robson, a former Secretary of Justice, and the Hon
Ralph Hanan, Minister of Justice. Their partnership between 1960 and 1970 produced a
bundle of reforms which reshaped the criminal justice system. Not all of them worked as intended, but they were
all headed in the right direction. Times
were different, of course. It was
possible for a departmental head to have a different view from that their
political master, and they were encouraged to express and argue for it, without fear.
There
were of course, times when principles of justice were at stake – it was then
that personal courage was tested. Hanan was a tireless crusader for the abolition of capital punishment, which had been
suspended under the Labour government (1957–60). However, in 1961 the National
government introduced legislation which provided for capital punishment in
three specific situations. As minister of justice Hanan was required to
introduce the bill. He accepted the responsibility, but did not hesitate to say
that he disapproved of it. He even encouraged groups outside Parliament to
campaign against the legislation and successfully persuaded individual
government members to vote for an amendment abolishing the death penalty.
There
were times when Hanan and Robson disagreed.
Such an impasse occurred after the Secretary of Justice, Sam Barnett, a
Baptist layman, proposed in 1959, an experiment with the appointment of prison
chaplains, and subsequently the provision of dedicated prison chapels. It proved a great success, and in the 1960’s
was the subject of much positive comment from Robson. In an article written in 1966 he noted that:[1]
“the
church is an important actor in a progressive penology………there is little
purpose in attempting to introduce so many of the helping disciplines, and
outside agencies such as PARS (Prisoners Aid and Rehabilitation Society) and
interested citizens into our planning if we believe that human personality
cannot be fundamentally changed.”
A
major test of Robson’s support came that same year, when New Zealand committed
troops to the Vietnam War. A number of
church leaders, including officials of the National Council of Churches (NCC),
publicly criticised this move.[2]
Three serving prison chaplains put their names to a full page advertisement in
The New Zealand Listener, expressing opposition to the war.[4]
Ralph Hanan reacted badly to this criticism and asked Robson to terminate the
Prison Chaplaincy Service. Robson recalls it this way:
“The
Minister tried to persuade me in 1966 to agree to a proposal that full time prison
chaplaincy should be abolished.”
Robson
reneged on this request, observing that Hanan’s intended reaction;
“…..ignored
the history of the question and the administrative justification for the
current arrangements. What troubled me most of all was the Minister’s
motivation for wanting to make the change. This political element would be
perceived by the chaplains and inevitably it would lead to loss of morale among
them and a drop in our standing with the churches.”
A
prolonged discussion then took place “between
two determined characters” and Robson noted that:
“if Hanan issued
this minute requiring me to carry out this directive, then I would submit my
resignation and retire” even though “from
a constitutional angle the minister had to win”
Hanan
eventually gave way. Robson comments
further:
“this was
a crucial moment for the chaplaincy – the work of fourteen years could well
have been nullified and strangely enough the crisis was precipitated by
something that had nothing whatever to do with the work of prison chaplains.[3]
Andrew
Geddis in his blog ‘Cri du cœur’’ (Cry from the Heart) ,
put the issues much more eloquently than I ever could (although I still prefer
Edith Piaf’s version) . One paragraph
targets the issue;
“What the people in Dirty Politics are trying
to do is kill the good in politics and turn it into something completely toxic
that destroys any hope of meaningful debate, discussion and conciliation, all
so that their side can "win". If that sounds melodramatic and over
the top, it isn't. You can read them saying that this is what they want in
their own words. And that is a terrible, terrible thing to seek to do. Because
if they win – if the way we conduct our politics and manage our differences and
decide our common path becomes their vision of how "the game" should
be played – then we all lose something very valuable. Basically, we lose our
future.”
I
don’t think that Andrew was being over-melodramatic. It was not only about ‘win at all costs’, but
equally about the values and attitudes held by people in the pursuit of what is
a ultimately a Pyrrhic victory – a victory where the heavy
toll to people’s personal mana
and reputation and the nation’s integrity negates any sense of achievement or
profit.
During
my period of speechlessness, I reflected
on whether I had ever encountered behaviour of the kind described in ‘Dirty
Politics’. Two incidents came to
mind.
The
first occurred around 1969, when as a Sergeant in Charge of the Wellington
Youth Aid
Section, I was asked by the Principal of a private college for girls, to assist with a spate of vicious gossip and scare mongering by a group of girls, which had led to one of their victims seriously self-harming. Their modus operandi was to write anonymous letters about their targets, and with the aid of a Gestetner copying machine, post the letters into each pupil’s personal locker. It was unclear who the offenders were, but the letter’s evidenced cruel and vicious minds, and a value set that failed to comprehend the damage they were causing to others. It was a reminder that even though your work life is spent mainly with the poor and marginalised, the potential for criminality and destructiveness exists throughout society. Here were a group of attractive, well-bred, affluent school girls, engaging in behaviour that was potentially life destroying.
Section, I was asked by the Principal of a private college for girls, to assist with a spate of vicious gossip and scare mongering by a group of girls, which had led to one of their victims seriously self-harming. Their modus operandi was to write anonymous letters about their targets, and with the aid of a Gestetner copying machine, post the letters into each pupil’s personal locker. It was unclear who the offenders were, but the letter’s evidenced cruel and vicious minds, and a value set that failed to comprehend the damage they were causing to others. It was a reminder that even though your work life is spent mainly with the poor and marginalised, the potential for criminality and destructiveness exists throughout society. Here were a group of attractive, well-bred, affluent school girls, engaging in behaviour that was potentially life destroying.
The
Principal asked me to speak at the school assembly, and engage in a ‘scared
straight’ rant, emhasising the punishment they would suffer if caught. I chose instead, to provide them with a
couple of case studies, talking about the harm caused to the victims and their
families, including one in which the victim committed suicide. I left the whole issue hanging, and invited them
to talk about the consequences of this behaviour with their friends and members
of the staff. It seemed to work – the
behaviour stopped and two parents complained about their children being very
upset by my talk.
The
second incident occurred a few years earlier (around 1967) following an
incident in which gang members threw a Molotov cocktail into a rival gang’s
house, narrowly missing, but seriously
traumatising a two year old child.
Police practice in those days was to interview suspects
individually. I decided to conduct an
initial interview with the five suspects in the same room, to see whether the
group dynamics might elicit some additional information. Well it did.
They started boasting about their escapades and their battles with rival
gangs. It was ‘Dirty Politics’ all over
again. They talked about the kick they
got from being feared within their community, the importance of ‘payback’ and
getting even, and the physical harm they caused to people who resisted their
behaviour. All in the pursuit of power
and ‘winning at all costs’.
So
my ‘Cry from the Heart’ is this. Whether
it is a bunch of upper-class pākehā schoolgirls, a gaggle of angry, disempowered Māori from the margins of society, or a cadre of elitist
politicians and bloggers who set about to destroy lives, reputations, and abuse
the principles of democracy –the motives and drivers are the same – and the
impact on our nation is ultimately destructive.
And it is Not Justice.
What Justice Really Looks Like - the Apologies to Tuhoe
At
around the same time the nation witnessed this grubby behaviour, we got a
glimpse of
what real justice looks like. It was the image of courageous and sincere Police Commissioner Mike Bush standing before elders of the Tuhoe Nation, apologising for the events of 2007, when out of control Police terrorised the men, women and children of Ruatoki.
what real justice looks like. It was the image of courageous and sincere Police Commissioner Mike Bush standing before elders of the Tuhoe Nation, apologising for the events of 2007, when out of control Police terrorised the men, women and children of Ruatoki.
That
was followed a week later by an official Government apology by Attorney General
, the Hon Chris Finlayson, to Tuhoe for Crown actions since 1860; including indiscriminate
raupatu or land confiscation, wrongful killings including executions, years of
scorched earth warfare, the failure to implement the Urewera District Native
Reserve Act 1896 and the exclusion of Tuhoe from the establishment of Te
Urewera National Park.
The full apology encapsulated
more than 150 years of Crown maltreatment, vengeful
misconduct, and the exercise of state power, and its devastating effect on Ngai Tuhoe. Tuhoe chief negotiator for the settlement, Tamati Kruger said it was a historic day for them. "Today, was a day to be remembered - a day to celebrate peace and a forward looking future,". But he also made it clear that there was some distance to travel before they two parties could achieve the ultimate goal of closing ‘Te Tatau Pounamu’ the green stone door’. ‘The Greenstone Door’, refers in a figurative sense to how, in times of trouble, peace can be secured and warfare ended through a political marriage and the exchange of greenstone. The peace thus established was often likened to a greenstone door as both were seen as being durable, strong and highly valuable. The Crown’s dual apology provides the occasion for discussion of indigenous strategies for sustaining relationships between collectives and over generations, for resolving conflict, for peacemaking, reconciliation and restorative justice.
misconduct, and the exercise of state power, and its devastating effect on Ngai Tuhoe. Tuhoe chief negotiator for the settlement, Tamati Kruger said it was a historic day for them. "Today, was a day to be remembered - a day to celebrate peace and a forward looking future,". But he also made it clear that there was some distance to travel before they two parties could achieve the ultimate goal of closing ‘Te Tatau Pounamu’ the green stone door’. ‘The Greenstone Door’, refers in a figurative sense to how, in times of trouble, peace can be secured and warfare ended through a political marriage and the exchange of greenstone. The peace thus established was often likened to a greenstone door as both were seen as being durable, strong and highly valuable. The Crown’s dual apology provides the occasion for discussion of indigenous strategies for sustaining relationships between collectives and over generations, for resolving conflict, for peacemaking, reconciliation and restorative justice.
It will be important for the Crown to consider how to achieve the
ultimate aim of reconciliation and ‘whakahoki mauri’ i.e. the restoration of community
balance. If, for example there is an
expectation that at some point they will be forgiven, that may be
problematic. There is no Māori word for
forgiveness. The widely-used Protestant version of the
‘Lord’s Prayer’ in Māori (and the corresponding scriptural
translation in Matthew 6:12) uses the term ‘muru’ to refer to the Christian
idea of forgiveness, while Roman Catholic translations use words such as
whakakāhore (negate) or wareware (forget, be unmindful of) – in my view, a more
accurate rendition.
The word ‘muru’ means to to wipe or rub, which
includes both rubbing off and smearing something on, as well as the plucking
off or stripping of leaves from a branch or twig. By extension, the term included the act or
institution of ritual seizure or ‘stripping’ of goods from the guilty individual
or his family or community for an alleged offence. Māori cultural
experts argue that forgiveness was not part of the indigenous thinking process. Once the community was back in balance, the
matter was closed and forgotten i.e. “wiped out” – and the greenstone door was closed
on the memory.
The overall aim of dispute resolution was the restoration of mana,
to achieve a balance of all considerations and to achieve a consensus; it was
not an adversarial process. When there had been a dispute that had affected the
spirit and mauri (life force), the question was how to bring it back into
balance. Regardless of what level or who was involved, there is the same
fundamental principle, that of ‘whakahoki mauri’ or restoring the balance
between the two parties. Apparent here
is the notion of ‘healing’.
What then was this apology about – if not to elicit forgiveness? First, it was about exercising the state’s
capacity to make and keep promises – in this case, the promise of a different
relationship, and a commitment to the covenant known as the Treaty of Waitangi. It was a genuine attempt to acknowledge and
clear up the past, to stop engaging in selective remembering, and to read our
national past differently.
Economic concerns are not the prime movers in the realm of
politics. The values and options that
guide economics are intimately linked to the fabric of our cultural values,
which are in turn deeply influenced by our past. The traumas and triumphs of our past shapes
and informs our identity and the way we perceive our mission for the
future. It certainly shapes the way we
do justice. What are contained in these
two apologies is a clear and honest acknowledgement of our history, and a
declaration of our future fitness to be a trusted covenant partner with the Tuhoe
nation. A healthy ‘economy of memories’
is the founding principle of any form of dependable, authentic and just
politics. That is how we need to do
justice, from Monday on.
The New Minister’s
Bucket List
You can’t do all this
overnight. Perhaps the initial challenge
is to convince the nation that as from Monday, justice will be done differently, and the new Minister will act accordingly.

Here is our bucket list of ‘Things to Do’ for our new
Minister.
- If you are a lawyer , keep reminding yourself that legislation may be about law, but it is rarely about justice.
- Develop a Hanan/Robson relationship with your CEO. Encourage him or her to offer advice freely, encourage robust debate, and resist the temptation to treat them (to put it crudely) as just another ‘fart catcher’.
- Insist that government department’s prepare Regulatory Impact Statements on new legislation that are comprehensive, well researched and address the unintended consequences.
- Promote and insist on a legislative process which is consistent with democratic principles.
·
·
Denying citizens the right to legal representation
·
Allowing the Executive to use regulation to override parliament;
·
Cancelling citizen’s rights to appeal to the courts to uphold
their rights under the law;
·
Using Supplementary Papers and urgency to avoid proper
Parliamentary scrutiny of legislation;
·
Ignoring the Attorney General’s advice and enacting legislation
which has been formally declared in breach of the Bill of Rights;
·
Diverting legislation away from the appropriate Select Committee
to one which does not have the appropriate level of expertise to deal effectively
with it, e.g. Electoral (Disqualification of
Convicted Prisoners) Amendment Bill 2010, and the Sentencing and Parole Reform Bill
2010 come to mind.
5. Finally, Take the time over the summer vacation, to read Amartya Sen’s “The Idea of Justice’, and its predecessor, John Rawls ‘A Theory of Justice’.
5. Finally, Take the time over the summer vacation, to read Amartya Sen’s “The Idea of Justice’, and its predecessor, John Rawls ‘A Theory of Justice’.
You will know you
are successful, when you are able to open a Conference on Cyber-bullying without a twinge of guilt. When you are able to speak about restorative
justice knowing that ‘making an apology’ is not a sign of weakness, but a symbol of strength. When
you encourage broad and open discussion about what real justice looks like, and
how it can be achieved.
We of the justice
sector look forward to working with you – and we offer our support over the
difficult years ahead. We look forward
to being once again, a nation that loves justice, and regards robust , honest
and open politics as a force for good.
5] Roberts,
J. Prison (1975). “Prison Chaplaincy in New Zealand.” Dissertation, Diploma in
Criminology with Honours, Auckland, University of Auckland.
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