Māori are the greatest victims of New Zealand’s war on drugs, but many Māori leaders are opposed to ideas of decriminalisation or legalisation. Professor Khylee Quince spoke to Simon Day about why tikanga Māori needs to be at the heart of drug reform.
It’s a stat the needs to be repeated: although making up just 15% of New Zealand’s populace, Māori are 51% of the prison population, and 40% of those are incarcerated for drug offences. While politicians avoid drug law reform, the police have effectively been given a mandate to decriminalise cannabis in practice. But the current arrangement isn’t close to working for New Zealand’s indigenous population, who face racial discrimination in the police’s subjective application of the law. Māori are again hugely overrepresented in convictions for possession or use of cannabis.
As a senior lecturer in criminal law at AUT, Khylee Quince has examined the effects of police discrimination against Māori. As Ngāpuhi and Ngāti Porou, she has seen the same discrimination against her family and community. But even three years ago she wasn’t sure what was the right way to change outcomes for Māori.
“The difficulty for us as Māori is to take a principled position, whilst also being wary of the personal connections with members of your own family who have caused themselves and the people around them huge harm from substance abuse, drinking and drugs. It is really hard to remove that from your mind when you are trying to rationalise a position,” she says.
Now Quince is an advocate for the legalisation of cannabis as the best way to stop destroying the futures of many young Māori, and to get problematic users the healthcare help they need.
Quince says any reform must be led by Māori, with tikanga Māori at its centre.
After her presentation at the Drug Foundation’s symposium earlier this month, I spoke to Quince about why Māori are over-represented in prison, how to rebuild trust between police and Māori, and the importance of Article Three of Te Tiriti o Waitangi for drug reform.
In 2015 departing police commissioner Mike Bush acknowledged that the police have an “unconscious bias” towards Māori. Where does that come from and is it the right word?
The issue for Māori is we have such a long negative history with Crown engagement generally, but police engagement specifically. Even university educated upper middle class Māori like me feel nervous around the police. It’s ridiculous. It is part of our makeup to feel that we should be anti police. That is part of our social learning.
That becomes a self fulfilling prophecy. The 1998 research by Te Puni Kokiri and the New Zealand Police (on perceptions of Māori) showed a mirroring of attitudes. They are suspicious of us, we are suspicious of them. So they use more aggressive body language, more aggressive actual language – police admit they are more likely to swear when they are dealing with Māori. They feel they have to be staunch because they feel they will be met with really strong oppositional defiance from Māori young people.
I think “unconscious bias” is a bit of a generous term. Generally we are talking about profiling of decisions to stop – that first point of contact. Those are obviously decisions based on discretion.
But the fact of the matter is, there is a massive discrimination in relation to engagement with Māori people. One of the ironies of that, is do not assume you are talking about interactions of Māori young people and non-Māori police. One of the responses to early unconscious bias research and data was in the mid-1990s in the police and the army and Corrections, and other state sector front-facing roles, was this massive strategy of employing more Māori and Pasifika and generally more diverse populations. That made no difference. When you get an interaction between police and Māori it does not matter if it is a Māori police officer. What does matter is the way they police.
Models show community policing, which is all about the relational ethic – having cops on the beat, having police officers in schools, having police officers who know who you are – [is more effective at reducing this bias]. Where I come from there is one cop, and he is just a local community guy. He has to fish, he has to go to the pub, he has to go to the butcher. Whether he is Māori or Pakeha is not actually relevant, it’s whether he is a member of the community. Community based policing is where it’s at.
Does it frustrate you when you hear politicians say we’ve got to wait to be led by the people, we have to wait for a mandate, when their job is to fix or change law where it isn’t working? Do you think this is politicians failing to do their job?
No doubt about it, no doubt about it. It is a bit disingenuous to say that we want to wait to be led by the people, because in many situations they go first. They make the decision and wait for the populous to follow. Gay marriage is probably an example. There was no popular mandate for that. There wasn’t even a whole lot of discourse around it. But they did the right thing, and people followed them.
Even though we have largely talked at this hui about moving from de facto decriminalisation to de jure, you could go the other way, which is to just enforce the law equally against everybody. I would be quite happy with that too, because that just means everybody is treated the same, but with the bottom line that parliament made the law and the police are just enforcing it.
We have heard people say multiple times during the symposium that we’ve seen enough evidence about cannabis reform. Have you come to a position on what needs to be done?
Cannabis is a no-brainer. I think the door is shut on that – change needs to happen. The evidence is clear, the reasons for change are clear. Legalisation, a strongly regulated market, that’s easy, I don’t think that is really open for debate.
What would legalisation of cannabis change for Māori?
For the non problematic user, 80 per cent of people at least, it means they would be free from the stigma of criminalisation, from the interference of authority in their lives. This is significant for Māori, as people who already have significant state interference in their lives.
It is also a little bit disingenuous to talk about cannabis offending as distinct from other offending. If you are stopped and searched and found to be carrying cannabis as a young Māori person, the interaction with the police is historically and often proves to be toxic.
You end up with what we call the “Holy Trinity” of offences. It is the dope, then it is the resisting the arrest, then the assaulting the police officer for placing a hand on him.
That is something you see frequently?
Absolutely. The data has shown that for many years. It is net widening that stems purely from the possession of cannabis for personal use.
From the front end if you got rid of that, if that was legalised you wouldn’t have the consequential charges from that one incident, and the ongoing collateral consequences of conviction. All the things associated with conviction, in New Zealand they are really long term.
Do we know if, as we see in arrests and convictions, sentencing equally discriminates against Māori?
Māori are much more likely [to be sent to prison]. That is where the greatest disparity occurs. At the front end, the decision to stop and charge – those are basically racial profiling based factors – at the sentencing end it is poverty factors. A judge sentencing two different people for the same offence has to consider whether the offender is going to prison or not. One decisive factor is your ability to pay a fiscal penalty as an alternative. Obviously poor people and beneficiaries have nothing to offer by way of financial reparation. A lot of people are therefore sentenced to prison because they don’t have the means to pay alternative penalties. And judges are required to consider reparations, the offering of financial remedy. Poor people can’t do that.
That’s the new Jim Crow law that Alison Holcomb was talking about: moving from directly racist discrimination to indirect discrimination – not on the basis of race straight up, but on the basis of poverty.
One of the things that requires research in New Zealand is our clean slate law. Māori are far less likely to be granted the benefit of convictions being clean slated. [For schedule offences those convictions can be wiped from your record after seven years]. If you have two defendants convicted of the same cannabis offending and the Māori one goes to prison and the Pākehā one doesn’t, one is able to be clean slated after seven years, the person who goes to prison cannot have that clean slate. That is a lifetime consequence from exactly the same offending.
It should be about the offence, not the outcome. Because if you have a disparity of outcomes then you know we have a disparity in the operation of that law.
The consequences of Māori incarceration must be widespread and intergenerational?
I had a niece come visit me a few years ago whose father was in prison, my cousin. She and her brother came to visit, and I set up two single beds in our guest room. She came running in there and she says: ‘Oh it’s like prison!’. Two beds side by side – that’s like a cell. She was four. That’s part of our normalisation of prison.
I’ve spoken about the consequences for the individual. There are consequences for the people around them – you are taking away an earner, you are taking away a parent. Fatherlessness is a massive issue.
Prison is not a normal part of our social landscape, nor should it be; yet many Māori parent their children from prison and have them coming to visit them behind bars. On the other hand, a lot of people won’t let their children visit them, because they don’t want them to come to that place, which just means they are absent from their lives altogether. There is no reasonable solution for an incarcerated parent.
What has caused the over-representation of Māori in prison?
The answer to that is really complex and multifaceted. It’s that inter relationship between poverty, lack of recognition of tikanga Māori and a lack of prosocial Māori identity. In the late 1970s and early 1980s, you had this idea of cultural deprivation. The idea Māori were in prison because they weren’t very good Māori. The theory observes that offenders were dislocated from community, and that the urbanisation of Māori has meant all the social protective factors of whānau, hapū and iwi [were removed], moving into a nuclear family model. Moving away from our rural hau kāinga meant that all those protective factors are no longer present in your lives.
That is one generation after the post war urbanisation flow to the cities. This occurred in a time of full employment, so the poverty thesis wasn’t very strong. You had kids who started to offend, but their parents were fully employed, largely in the state sector, for New Zealand Rail, New Zealand Post, or forestry, all those state owned enterprises. Māori were fully employed so you couldn’t explain away disproportionate Māori offending by viewing our socio economic positioning. So Corrections and the Ministry of Justice started to respond to try and boost prosocial Māori identities. That is when you started to have programmes around learning to carve in prison, tikanga and reo. That approach also didn’t make a dent in offending rates.
In the 1980s the poverty issue comes into force with the rolling back of the state, with the fourth Labour government. Deregulation meant that Māori suffered disproportionately from their positions in unskilled or working class jobs, and the resulting redundancies and unemployment started a cycle of underemployment that persists three decades later.
I think this is the crux of it, you start to have the interplay of poverty and cultural disconnection. Then of course you have Māori replacing whānau, hapū and iwi structures with gang related structures. It’s a difficult problem.
It seems interesting that so much of Māori leadership are opposed to drug reform, where they see it as a loosening of restrictions, and making cannabis more available. Why has it been so hard to get them on board?
That is fear. One of the things I have been pleased about at this hui is that no one has mentioned cannabis as a gateway drug. Cannabis and meth have been talked about as separate issues and phenomena. But there is a fear amongst certain groups, particularly older Māori, that the loosening of the laws around cannabis will result in more serious drug use, and that you are not going to replace criminal justice sanctions with a different response. I don’t think it is well understood that legalisation of cannabis would have to be partnered with a strong regulation of its cultivation and supply.
That is why you see the Māori MPs are a bit all over the show in their views on cannabis. The MPs are speaking to those people – to morally conservative people who are living the day to day grind in communities that are harmed by substance abuse. It is fear of the unknown. If you don’t replace it with another therapeutic, more useful response, what is going to happen to us?
What does cultural engagement with Māori look like as we try to reform our drug laws?
We live and make decisions collectively, according to our own laws and ways of thinking, being and doing – that is the key. It needs to be substantively Māori. It needs to borrow the best of addiction treatment and tikanga models of well being. We wouldn’t just treat the individual person, you would have to treat all the people affected by their use. It would have to be collective. It needs to be done in the community.
We use the marae for everything. It is where you are born, it is where you get married, it is where you die. Everything that happens in the community is public and in that forum. It is our court. It would be our addiction centre, because of the protective factor of the community. We don’t do privacy, whereas Western medicine is all about your private file, your private business. How are people supposed to help you if they don’t know what is wrong, or what is happening? That is really frustrating for communities.
Doing all our business on the marae it means problems are viewed as part of everyday life. If you have it out in a public forum then people know it’s been dealt with.
In Pākehā life, if you have a legal problem you go to a court – a special building with special language, you wear ridiculous clothes, the dude up the front makes all the decisions. It’s removed from everyday life. So is prison. It is this architecture of social control that is removed from everyday life.
How is the Treaty of Waitangi relevant to the discrimination against Māori in the way drug law is applied?
The sleeping giant of Treaty analysis and thinking is Article Three (which gave Māori “the same rights and duties of citizenship as the people of England”). In the 1970s and 80s the Māori renaissance was all around Article Two and autonomy and the narrative that we should be in charge of ourselves; that we know best for ourselves.
In the 30 or 40 years since then, as people have become more disconnected from community and the increased negative social indicators, modern Māori identity is framed by poverty and marginalisation.
If you think about Article Two stuff, about self determination, that is about being who we are – which is not poverty. You need to disconnect the two. Inequality and poverty is what has happened to us, but is is not who we are. State action and neglect put us in this position of unequal citizenship – the Article Three breach. This has resulted in what Tracey McIntosh calls a “submerged citizen”: the invisible kids, the kids that aren’t in school, the thousands of Māori kids who have left school before the official leaving age but are not eligible for a benefit. Those are submerged kids. They live lives of restricted opportunity.
You can’t jump straight to self determination when you are inherently unequal. If you have no idea around choice, or opportunity, then it is really difficult to take charge.
I think Article Three is where it’s at now in terms of forging solutions to the major problems facing Māori people today.
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