This article was first published by RNZ.

A Māori barrister hopes updated prosecution guidelines published by the Solicitor-General this week will make judges and lawyers think carefully about the factors that put people before the courts.

Solicitor-General Una Jagose KC published 27 updated guidelines covering topics from the test for prosecution to diversion schemes which apply to all prosecuting agencies.

In the document, Jagose said her office had specifically reviewed the guidelines to understand how prosecutorial decision-making might contribute to the disproportionate criminal justice outcomes for Māori.

“It is well documented that the criminal justice system delivers disproportionately adverse results for Māori, who are overrepresented as both victims and defendants.”

The guideline had been informed by a series of workshops with a group of experts in the criminal justice system, Jagose said.

“We heard a clear call from the participants for guidelines which encourage more frequent use of alternatives to prosecution (such as restorative processes) in less serious cases, to achieve resolutions which meet the needs of the victim, the offender, whānau, and the broader community.”

Wellington-based barrister Julia Spelman (Ngāti Hikairo ki Kāwhia) told RNZ the new guidelines were quite broad.

“That’s a very long document, but in general they are an update to what’s already there, so they’re not a huge change to what is already in place.

“They are a reminder for prosecutors to think about the backgrounds of groups that are over- represented in the system. That includes Māori, but it also includes other groups like young people, those with disabilities, those who’ve been survivors of abuse in state care and other groups, all of whom are overrepresented in the justice system.

“Part of the reason of why it’s important to think about the backgrounds of those groups is those groups may well have relevant factors that need to be taken into account so that the justice system can respond in a way that’s effective and fair, and to get an outcome that’s in the best interest of everyone.”

In an email newsletter, Hobson’s Pledge spokesperson Don Brash said the updated guidelines “quite literally provide a ‘Get Out Of Jail Free’ card to New Zealanders with at least one Māori ancestor”.

“Ethnicity or whether or not one has a Māori ancestor should not be a factor in deciding to charge someone who has committed a crime. That is a separatist system. A two-tiered system. We cannot accept that our justice system is to work on the premise of ‘do the crime, do the time... except if you have Māori ancestry’.

“This is blatant discrimination. Why should a Chinese New Zealander, Samoan New Zealander, and an Irish New Zealander be charged for a burglary, but the fourth accomplice gets off scot-free by virtue of one of his great-grandparents being Māori?” Brash said.

Spelman said it was “absolutely inaccurate” to say the guidelines were a “get out of jail free card” and it was important to remember that the guidelines served as a reminder to consider the victims of offending as well.

A good way to describe them was as “best practice” not “rules”.

“They’re not binding on prosecutors and part of the reason for that is it applies to a really broad range of prosecutors. So it’s got the Crown prosecution firms who undertake prosecution of serious crime as well as police prosecutors, but also all sorts of different regulatory prosecutors across a whole range.

“It’s a very different situation for those different types of prosecutors. The guidelines are just that... guidelines, they can’t be enforced.”

Up to individuals to press case - PM

Prime Minister Christopher Luxon said his coalition’s view was that policy should not take race into account, and expects prosecutions should be colourblind too.

“Individuals can make their case to a judge around their circumstances and their background, but equally what I’d say is that prosecution should be colourblind and that’s what I expect.”

Luxon said the Solicitor-General has an independent role and has to issue the guidelines under law.

ACT leader David Seymour said he had raised with the Attorney-General his objection to the new prosecution guidelines which seemed to be an egregious breach of the foundational principles of New Zealand.

“They’re totally inconsistent with the values of a civilised country where everyone is equal before the law.”

Spelman said the guidelines on their own would not make much difference without proper implementation and training on an individual level.

“The guidelines on their own don’t represent a significant change, but there is a lot of work that could be done in terms of thinking about who is it that makes prosecutorial decisions in New Zealand. Who those groups are, what kind of training they have around these complicated issues and what sort of oversight and accountability there is for prosecution decisions.

“That’s been something that we’ve suggested - Crown Law needs to be looked into more carefully, but I think the guidelines themselves are only one small part of this picture and actually looking at accountability, implementation and training is really where any positive change will happen.”

It was important to bear in mind the guidelines were not just for the defendant, but also the victims of crime, Spelman said.

“We know that our criminal justice system in the past hasn’t been very effective. There’s a lot of recidivism. There’s a lot of people who get sent to prison and come out and offend again, which shows us that prisons are incredibly ineffective.

“I hope the effect of the guidelines will be to remind people to think carefully about the factors that are driving people to come before the court. Then hopefully there means there’s less people coming back to court and less crime in the community.”

By Tuwhenuaroa Natanahira of RNZ