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Monthly Archives: April 2016

Just how free is your will, truly? Criminal law & the free thinker.

A few years ago two people made comments to me independently about children; comments that broke my heart. In one, the sister of a friend of mine who had adopted a baby from a troubled background asked me if I had met ‘the criminal’s baby’ yet. I did a double-take; this was the first conversation I had ever had with this woman, but surely she must have been joking. She wasn’t. She waited for my answer. I stammered out something about what gorgeous and happy boy he was, and left; under no illusions about what she saw in that child’s past and his future. At about the same time, another friend of mine was parenting a child from  troubled background. Hmm. Such a quaint phrase ‘troubled background’..makes me think of a William Turner painting, like The 5th Plague of Egypt:


This child was a bit older, and he had been playing up at school. Really playing up, and my friend was, understandably, tearing her hair out. “My kid is totally fucked up,” she said, in a tone of utter finality. My heart bled for her; but also for her boy, happily (on that day, at least) playing on the computer in the next room. The sense I had garnered from both conversations (and the first was a short one, I’ll grant you) was that each child was followed by a terrible Doom. In the case of the second child (Māori) he was rapidly becoming, for a host of complicated reasons, the Troubled Māori Boy at his school. Now this child had a pretty good chance of beating his Doom, he had a well intentioned  & hardworking Mum, and a bunch of supports in place around him. In fact, both children did, and I can only hope that these two kids continue to outpace the expectations of others that they will fail; that the choices they will make will not fulfil the prophecies being made by others on their behalf.

A couple of weeks ago I happened to be in my first week of law teaching for the year, introducing my classes to the concept of mens rea, or ‘the guilty mind’ that prosecutors must prove exists if defendants are to be held liable  for the actus reus, or ‘guilty conduct’ that comprise serious offences in this in this country’s criminal law (many offences don’t require mens rea these days, but that’s a story for another day).

So in my classes we had to discuss some basics before we even got what it means to choose an action, and to carry it out with a specific frame of mind like intent or recklessness. At the very heart of our criminal legal system is the notion of the freely choosing individual. The person who, faced with a choice of courses of action is capable of choosing one of those courses of action. This presumption that individuals must have free will in order to be at fault is extraordinarily powerful and optimistic. Thousands of years of philosophical and religious thought have also upheld this idea, particularly in the West,  that humans can choose obedience to a deity or a principle, or a moral.  This idea is in direct tension with another powerful idea; determinism,  which understands humans to be little more than flotsam and jetsam on tides of their own fate. We are the sum of our physiology, our psychology, our physicality, our environment, and we are bound to act as we do; our whole lives have brought us to this moment; and true choice is but an illusion.

At the same time as teaching these classes, I read ab0ut the successful appeal by one of the young boys who killed Mr Arun Kumar, a loved and respected man who was stabbed to death in his Auckland dairy in June, 2014. This is one case that challenges the role we presume free will plays in our behaviour. The appellant was 13 at the time of the killing, who had suffered terrible head trauma at the age of 8; married with many of the other markers of disadvantage that other young offenders carry; lack of family support, lack of engagement with the medical establishment; abysmal schooling experiences, and so on. The following quote from the article interested me:

A medical report available to the courts outlined the effect the injury had on the teenager’s reasoning on the day of the killing: “although knowing right from wrong, [P] was significantly reduced in his capacity to choose right from wrong, due to his lasting brain injury impairments.

“He could not use his knowledge normally to control his actions on the day and in the situation in the dairy. He had less control than another person his age would have had in the same circumstances due to his brain damage.”

In other words, this offender’s capacity to exercise free will was compromised. It was not eradicated; he was found guilty of manslaughter after all; he was not acting as an automaton; he still met the mens rea for manslaughter; just not for murder, because the jury found he had formed intent for committing serious bodily harm, without intending, or knowing that death could result (s168, Crimes Act 1961). The Court of Appeal said that the sentencing judge had not taken enough account of the Defendant’s reduced mental faculty in sentencing. This case highlighted how fragile our cherished concept of free will can be.  Why make this young person criminally liable for something he most probably could not have chosen to do differently in that moment? Well, there are many reasons, and one of them is simply that our system of criminal liability simply cannot take account well of hard cases.

I asked my classes who among them felt they were indeed in control of their own destinies; and who felt at the mercy of some kind of fate over which they had no kind of control. Funnily enough, many of the same people who thought themselves in control, also saw themselves carried along on tides over which they had no control whatsoever. Somewhere between these two poles exist real people struggling with their unvarnished lives. Muddiness of real life to one side; politics, religion, and law would all look very different in this country if the notion of individual free will did not have such ascendance.

I can only trust that the two children I mentioned above are both able and enabled to make the kinds of decisions that dispel the Dooms that might otherwise sweep them up.


[Postscript: just saw this article about 30 seconds ago..seems, according to this experiment at least,  that a goodly degree of our quote-unquote free choices are actually retrofitted. Well, a scientific study rarely quells debate, does it.]





‘Trumping’, Hosking & the Waitangi Tribunal. It’s a thing.

So my brief this week was to write a post on the Waitangi Tribunal. Now, I often need to feel a bit het up in order to write (or at least write something vaguely meaningful). My usual gauge is the Shower Test. Do I stand in my morning shower, stock-still, with hot water levels merrily depleting while I stare into middle distance ruminating about some issue? If so, that usually means I can write about that issue with some vim & vigour.

And unfortunately, despite being a legal academic, the judicial and quasi-judicial institutions of our legal system don’t usually pass my Shower Test.

And then Mike Hosking came to the rescue with his latest column, much of which was a critique of the Waitangi Tribunal.

Now. To be fair – confessional, even, I don’t mind opinionated middle-aged Pākehā men sounding off. I don’t have a well developed outrage nerve, and the opinions of people I don’t know don’t often to get on it. Rodney Hide, Paul Henry, Jamie Whyte, Duncan Garner, John Roughan, Brian Rudman, Cameron Slater, Martyn Bradbury et al can say what they want; I’m responsible for my own responses to what they say. They too usually fail my Shower Test. But I did find myself thinking about some of the statements in Mike’s column. That is unusual.

I should note that the last time Mike interviewed me on Newstalk ZB he got my name wrong, my gender wrong and my job title wrong, so I know he can be Trumpish on detail, but let’s look at what he said anyway about the Waitangi Tribunal.

The Waitangi Tribunal is having a busy old time of it at the moment. One might have thought that when the whole concept was dreamed up they would’ve given some thought to how long it was going to be around for, given it had a specific mandate which was by and large to deal with Treaty grievances.

You know, there is a great little legislative time machine we can use at this point, it’s known as the ‘New Zealand Acts As Enacted’ collection hosted by the New Zealand Legal Information Institute (NZLII). The beauty of this collection is that you can go back to any year an Act was passed and see What it Was Like Back In the Day. So have a look at the Treaty of Waitangi Act 1975, if you feel like it.

Actually, Mike’s not entirely wrong here. The Tribunal was set up with a specific mandate, and part of that mandate was to hear claims. Inevitably, those claims were to involve grievance. We don’t make claims when all is right with the world. The fact that one of the other parts of the mandate remains to examine draft legislation referred to it for compliance with Treaty principles. for example, has escaped Mike’s notice.

That he says ‘ One might have thought … they would’ve given some thought to how long it was going to be around for’ reveals that he has probably not ever looked at the Treaty of Waitangi Act 1975, or else he wouldn’t have written that. Let’s look at the opening words of the Act (and yes, they remain the opening words of the Act, 41 years after original enactment):

WHEREAS on the 6th day of February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand: And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language: And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles […] [emphasis added]

Clearly, as it was conceived originally, the Tribunal was always intended to stick around to facilitate this notion of ‘practical application of the principles of the Treaty of Waitangi’. Of course, this was all a little ill-defined, because back then we hadn’t really begun the process of articulating what those principles are (a process that has never ended, by the way).

For another thing the Tribunal was established as a permanent commission of inquiry. Now, ‘permanent’ means different things to different people, but I think we all understand the notion of permanence as opposed to temporary-ence.

And at that point historical claims were not part of its brief, Māori individuals (alone or as part of a group) could only bring  claims against the Crown if she, or the group, was being prejudiced (at that time, or was likely to be prejudiced at some time in the future)  by actions of the Crown, including by way or Act, regulation, policy, etc), where such behaviour was contrary to those principles of the Treaty.

By the way, its status as a permanent commission of Inquiry is WHY its recommendations  are not binding (with one exception, the power of resumption under Treaty of Waitangi Act 1975, ss 8A-8HJ, but we need not go into that here).

Given the scope in 1975 (to hear claims for wrongs now, or at some time on the future), let’s face it, the Tribunal was never intended to have an expiry date. The addition, in 1985, to the Tribunals’ jurisdiction, to enable it to hear claims before 1975 made not one iota of difference to that.

But let’s dip our toe back into the murky world of Mike’s Tribunal Tribulations:

Sadly no such luck. If you ever want an example of “build it and they will come”, or of an organisation that expands its brief to ensure survival, then the tribunal is your one-stop shop.

OK, not gonna bite. See above.

Next, Mike alludes to the urgency claim filed against the TPPA. Harrumph, he reckons:

What can the tribunal do, to assuage the concerns? Answer? … nothing. Nothing it does is binding. And in highlighting the example we highlight what this has become – a gravy train. Everyone on the tribunal is getting paid, everyone presenting the cases is getting paid, and you know full well who’s footing the bill.

Um. Kind of true, but not in a way that means anything.  Nothing in the jurisdiction of the Tribunal allows it to “do anything” about the TPPA. That wasn’t what it set up for (see above). Nevertheless there are a good many Māori who would say that the Crown’s signing of the TPPA could well cause prejudice to Māori, being inconsistent with the principles of the Treaty. I’m not about to enter into the TPPA debate, others articulate those concerns far more effectively than I can. But this is exactly the kind of claim the Tribunal was set up for in 1975. What is Mike suggesting? That this forum just be cancelled because he happens to agree with the TPPA? I need more than that to give his opinion any weight.

As for the ‘Gravy Train’…oh I don’t know. I don’t even know what a bloody gravy train is. I looked it up, and I’m still none the wiser. As far as I can see it is just a phrase people trot out for when they think people are getting money for things they don’t like. Like “fat cats”. And “On the pig’s back’, and ‘snouts in the trough’ and ‘sucking on the teat of the taxpayer’ or any other silly phrase that gives us permission to stop thinking. Apparently, there is a “Gravy Train” dog-food in the states. So here’s my antidote:


Then Mike takes aim at the recently accepted claim in urgency against  Corrections, concerning the Crown’s alleged failure to make a high level commitment to improve the disproportionate number of Māori in prison. He would like the Tribunal to conclude that there is no real problem, Māori just have to stop committing crimes:

It would be refreshing to hear this conclusion from the tribunal, but I’ll bet you a week’s wages you won’t because that wouldn’t serve its purpose.

Having dealt with the vast majority of Treaty grievances just what is its purpose? At what point does a government say, “You know what? We’re done.”

Once again. It’s not the tribunal’s purpose to tell Māori people how to behave so as to stop having negative experiences. That might be how Judge Judy does it but the tribunal’s job is to determine if the Crown has acted in such a way (inconsistent with the TOW principles, once again) that Māori experience prejudice under the Act.

And that’s about as deep as Mike’s analysis gets. The Tribunal allows Māori to say things he doesn’t like about “rats and mice issues of no real importance whatsoever”, and it should just wrap itself up. End of.

But enough of Mike. The Donald would have been proud of the lack of facts or thought in that column. And you know what? I give up. I agree. I, too, cannot WAIT for the Waitangi Tribunal to fade from existence due to irrelevance. Why? Because that would mean the Crown had stopped breaching the principles of the Treaty. Let’s see some opinionated columns in the mainstream media about how the Crown might do that!

To return to earth for a moment, there are genuine grounds to be concerned about the role and efficacy of the Tribunal.

For one thing, as the settlement process began in earnest, it has been argued that it was intended the Tribunal be an integral part of the process, as is still evident if only because the Office of Treaty Settlements still requires claimants to have registered a claim with the Tribunal before they can enter into direct negotiations for settlement with the Crown.

The fact is, despite registering claims many claimants go straight to direct negotiations with the Crown; and they don’t go to the Waitangi Tribunal at all. If this is the case, has the Tribunal lost something of its moral suasion if Māori are not using it to actually be heard and to get a report written about their historical claims?

And what kind of pressures have claimants been subject to in the direct negotiations process that might have been eased with the buffer of such a report?

Well, Māori are continuing to use the Tribunal, particularly for the kinds of contemporary issues it was originally set up to hear. The bigger question is really whether the Tribunal recommendations make a difference. In many cases one could argue no. For the Tribunal’s recommendations to succeed, the Crown needs to buy in, and often it simply doesn’t. But sometimes it a round about kind of way.

Here’s an example. in 2011 the Wai 262 recommendations were released along with the gargantuan report Ko Aotearoa Tēnei. Have a read of my colleague Carwyn Jones’ summary, on his own blog, of the big job the Tribunal had to do on this first whole-of-government inquiry.

Ultimately, the Tribunal wanted to see Māori intellectual property rights in mātauranga Māori protected within the New Zealand legal system by way of a special regime. Well, as of March 2016 the Crown has not responded to the recommendations. Or at least, if they have, I have missed it.

Is it strictly true to say that the recommendations have been ignored? In the main, probably. But in 2014 the Ka Mate Attribution Act was passed; in part to enact the provisions contained in the Ngāti Toa Rangatira Deed of Settlement dealing with the haka Ka Mate The Attorney General Chris Finlayson said that the time that the issue of protecting Ka Mate went beyond Ngāti Toa.

What we have here is, I believe, exciting legislation. It is the very first tentative step by the Crown towards recognition of traditional cultural expressions

And maybe it is. It could be argued that the Act was, in part, a response to the issues set out with regard to Ka Mate in the Wai 262 report. This is the kind of impact that is hard to measure, because it is indirect, partial, and incomplete.

One other point I would make about the Tribunal; it is sometimes described as ‘a safety valve’ (Matiu Rata is said to have described the Tribunal thus), or even as a kind of ‘truth and reconciliation commission‘. I would agree with that; much pain and many tears have been shed before the Tribunal, and the weight of that Māori participation in this mechanism must not be undervalued.

Actually, this public participation aspect has, in recent years, been under threat, in regards to those historical claims. As the Tribunal has become more formal, efficient, and court-like over the years, its emphasis has greatly shifted, it has been argued, from providing that necessary public safety valve to helping claimants do better in highly bureaucratic settlement negotiations. This is worrying to me.

Therefore, an important saving grace of contemporary claims, such as the hearings on the TPPA and Corrections, may well be that the Māori public voice within the public square is getting louder, once more.

Long may it remain so.

[Please note: a very slightly different version of this post was first published a couple of days ago  on E-Tangata]

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