Tuesday, 15 October 2013

A Critical Response to Advocates of Restorative Justice and Family Group Conferencing

The following blog seeks to answer some of the comments made in recent time by advocates for restorative justice, and in particular of the Family Group Conferencing (FGC) forum in response to the Indigenous critique.

From its inception via the Child, Young Persons and their Families Act of 1989, until the late 1990s, advocates of FGC and the wider RJ context, and the policy sector responsible for its implementation, dominated commentary on the forum (Tauri, 1999).  The commentary was universally positive, but theoretically 'light', and lacking in data derived from independent research (as opposed to that supported by government agencies).  There was little in the way of critical commentary from within government circles, and dissenting voices from without were more often than not ignored, and sometimes vilified.  In the case of the author, the latter came in the form of a phone call one day in late 1999 from a senior Judge and noted advocate of FGC who bleated that he had heard I had criticised FGC's during a presentation at a conference in Canberra earlier that year and asked "how could you say such things".  Apart from the fact that what he had been told 2nd hand I had said being wrong, I also stated that the FGC was not a sacred cow and I was entitled to make critical comments if I wish.

Except I was wrong: the FGC had by then become a sacred cow.  It had also become a cash cow for some criminologists, policy entrepreneurs and ex-policemen from New Zealand and Australia in the decade since its inception.  By the early 2000's FGC of some form or other had 'travelled' from New Zealand to Australia, from Australia and New Zealand to North America, and from New Zealand to Germany and from there to other Western European jurisdictions.  The FGC had gone global, and the forum, at the time and ever since New Zealand's only original crime control idea/policy, had made the country the darling of the then developing restorative justice industry.

Now, since the late 1990s I and a whole host of other critical criminologists have critiqued the FGC from various angles, including Kathy Daly, Harry Blagg, Chris Cunneen and Kelly Richards on the Australian perspective, Wenona Victor, Jonathan Rudin and Gloria Lee on the Canadian context, and myself and Cath Love on the New Zealand context.  Within this growing body of critical literature has been identified a number of issues with the FGC forum, far too many to discuss in detail here.  But one that is key to our understanding the importance of the FGC to the ever-expanding globalised RJ industry, is the constant exaggeration of its Indigenous (read Maori) foundations; what Daly (2002) would probably (and accurately) call one of the key Origin Myths of restorative justice.  

In short, the origin myth goes something like this: in the mid-1980s a Maori-led committee produced a critical review of social policy/care and protection practices as they impacted Maori (known as 'Daybreak' - see Ministerial Advisory Committee, 1988); that this report recommended that a Maori-centred justice process be developed, that the report and this recommendation lay the foundation for the FGC, and finally, that because of all this, the FGC forum was 'Maori inspired'; a 'Maori process', and/or 'rich with Maori philosophy and justice practice', etc.  Certainly, the forum developed out of Maori concerns for government responses to youth justice (amongst a number of issues), but as one of the key architects of the 1989 legislation, Doolan (2005: 1) “those of us who were involved in the policy development process leading up to the new law had never heard of restorative justice”, and nor was a major concern the oft-made and exaggerated claim that they were motivated by wanting to 'empower Maori to deal with their own youth offenders'.  Instead, their focus was on producing a state-centred forum based on what was then becoming the fashionable ideological bases to western youth justice policy, namely the responsibilisation of youth offenders and their families (see Richards, 2007 for a full analysis of the exaggerated way in which Maori input has been constructed by FGC advocates). 

This all sound lovely; the state producing a forum based on Maori justice principles, to empower us, etc, etc; except it is all exaggerated bull-dust.  Yes, when you look closely the forum includes some 'Indigenous' elements, and some RJ one's, but these were after-the-fact 'discoveries' manufactured by New Zealand and Australian criminologists who, in my opinion, simply cherry picked features of the FGC process that matched with so-called Indigenous and RJ processes, thereby creating the illusion of its 'Maoriness': in other words, they created a fiction which has since evolved into a myth: a myth many advocates of RJ and FGC have used since to facilitate the successful transfer of the forum across various jurisdictions. Nothing wrong with that per se, except those who are purposely doing this are doing so on the back of incomplete information (constructed in the form of the 'myth'); they are misrepresenting the forum as Indigenous, when it is not, and some are making quite a nice living from doing so.  And that, I believe, is unethical.  

Critiquing the Advocates
I want to focus for the remainder of this blog on responding to one particular RJ advocates critique of Indigenous criticisms of the FGC forum; namely comments made by Gabrielle Maxwell in a 2008 publication, in which she stated that:

In New Zealand there has been criticism that family group conferences have not been managed in ways that conform with traditional practice of Maori or those from other cultural backgrounds.  It has been suggested that the high proportion of Maori staff managing the process and the inclusion of Maori greetings and blessing is little more than tokenism and can rarely be described as a truly Maori process.  This is despite the undisputed origins of many aspects of the conference process in traditional Maori procedures (Consedine, 1995).  On the other hand, on occasion, the management of the conference process is sometimes passed over to a Maori social service group (Maxwell, 2008: 87).

These sentiments had previously been expressed by Gabrielle's one time collaborator, Alison Morris just a few short years before when she argued that in 'critiquing FGC's I failed to acknowledge the high numbers Maori working in New Zealand's Child Care and Protection service'.

Within Maxwell and Morris' comments we can identify many of the issues Maori and other critical Indigenous/non-Indigenous commentators have with much of the Academy’s writing on the FGC forum, in particular the manipulation of the available record to establish and sustain the origin myths of the FGC:

First: the most obvious issue is the claim that the FGC’s Maori foundations are ‘undisputable’.  The previous discussion, especially the research of Richards (2007) exposes the exaggerated nature of this claim.  In reiterating this origin myth and presenting it as ‘undisputable’, Maxwell and others ignore the significant amount of literature exposing this myth published since Consedine’s 1995 book.  Maxwell’s approach to espousing the origin myth of FGC highlights one of the fundamental criticisms Indigenous scholars have made about some members of the restorative justice Industry, namely the lack of engagement with the critical Indigenous/non-Indigenous literature (see Tauri, 2012; Tauri and Webb, 2011; more on this issue below).  

Second: Maxwell’s own published research on the FGC process (Morris and Maxwell, 1993; Maxwell et al, 2004) reported some Maori FGC participants being especially concerned with the tokenistic way in which ‘Maori culture’ was afforded space in the process, which more often than not comprised of state officials allowing elders to recite karakia (pray) at the beginning and end of the process: and that was pretty much it.  The 'reality' of the cultural context of the forum exposed by their own research, demonstrates that the actual practice of FGC is often far removed from ideological claims that the process offers meaningful opportunities for the empowerment of Maori, especially in 'leading' responses to the offending of their youth (See also Morris and Maxwell, 1998).  

Third: in the above quote Maxwell is replicating a fundamental weaknesses in the FGC/Maori justice scholarship, which is to ignore the lack of direct Maori input into the actual design of the Act and the FGC forum.  She also ignores the fact that officials involved in the developing the process - including the chief policy architect, Doolan - have since admitted that they were not focused on developing a ‘Maori justice process’, or indeed even a restorative justice one. 

What Maxwell and other restorative justice advocates are constantly doing is erroneously equating Maori requests for a ‘traditional forum’ (more especially in Moana Jackson’s 1988 report He Whaipaanga Hou than in Daybreak), with Maori justice philosophies being foundational to the formulation of the forum itself.  To do so is to ignore the reality of policy making in the New Zealand context, in particular the historical tendency for the criminal justice sector to ‘Indigenise’ Eurocentric crime control processes (see Jackson, 1995; Tauri, 1998; 2009; Tauri and Webb, 2011; Williams, 2001).  It also ignores that the supposed ‘Maori’ and restorative elements were identified long after the formulation and implementation of both the Act and the forum.  As Daly (2002: 63) effectively argues “the devising of a (white, bureaucratic) justice practice that is flexible and accommodating towards cultural differences does not mean that conferencing is an indigenous justice practice”.  Daly (2002: 4) then goes further, revealing that Maxwell herself is aware of this distinction when she includes the following quote from Maxwell and Morris’ original 1993 study:

A distinction must be drawn between a system, which attempts to re-establish the indigenous model of pre-European times, and a system of justice, which is culturally appropriate. The New Zealand system is an attempt to establish the latter, not to replicate the former. As such, it seeks to incorporate many of the features apparent in whanau [extended family] decision-making processes and seen in meetings on marae today, but it also contains elements quite alien to indigenous models.

Fourth: her claim that critics argue that “the high proportion of Maori staff managing the process… is little more than tokenism” does not feature in any of the literature published on the New Zealand context up till now, including the work of Jackson (1995); Love (2003) and Tauri (1998; 1999, 2005).  That significant numbers of Maori work in New Zealand’s child care and protection services (which involves FGC) is undisputed. However, it is simplistic to equate their employment in New Zealand's social services, with actual support for the process.  Indeed, Maori staff have in the past criticised the child care and protection processes utilised by the government agencies they work for, especially for the mono-cultural foundations of both policy and practice; most notably during Child Care and Protection Services staff consultation during the development of its differential service model, during Maxwell and colleagues own reviews of FGC published in 1993; 1998 and 2003, and most recently in Paora Moyles’ (2013) Master’s thesis on Maori social workers views and experiences of social work-related processes.  

Fifth: Maxwell’s attempt to counter criticisms of the tokenistic nature of the FGC process by noting that 'some FGC’s are handed to Maori and Pacifica service providers to facilitate', ignores the reality that her own research exposed - that very few FGCs actually take place in Maori homes or are run by non-Government entities (see Morris and Maxwell 1993; Maxwell et al, 2004).  


Lastly: as a critic of the way in which the FGC process continues to be marketed as a Maori process, and author of a number of journal articles and having read a considerable amount of the critical Indigenous/non-Indigenous literature, I found it interesting that when summarising the criticisms of authors like me, that none of the published, critical material was actually referenced, either in the body of the work, or in the bibliography.  Nor were the 'critics' actually named. The problem with this strategy, and probably the reason for it, is that it makes it difficult for readers to test the veracity of our claims.  And just as importantly, it makes it extremely difficult for readers to critically analyse Maxwell’s representation and analysis of our arguments - hence why some of our work is included in this blog.  I have come across this type of behaviour before: back in the early 2000's the justice system called for submissions for contract research on youth justice, to which the Crime Research Group at Victoria University of Wellington submitted a proposal.  In response to the submission, I and my colleagues challenged the lack of engagement in the groups proposal, with Maori and other Indigenous peoples criticisms of RJ in general and FGC in particular.  The response? One line, stating "... although Tauri has a different view".  So much for critical analysis of all available literature and once again, we see the critical Indigenous voice silenced. 

Daly, K (2002) Restorative Justice – The Real Story, Punishment and Society, 4(1): 55-79.
Doolan, M (2005) Restorative Practices and Family Empowerment: Both/And or Either/Or? Retrieved 8 August from http://www.americanhumane.org/site/DocServer/au13
Jackson, M (1988) Maori and the Criminal Justice System: He Whaipaanga Hou: A New Perspective.  Wellington: Department of Justice.
Jackson, M (1995) Cultural Justice: A Colonial Contradiction or a Rangatiratanga Reality?  In F. McElrea (ed.) Legal Pluralism and the Colonial Legacy.  Aldershot: Avebury: 31-45.
Love, C (2002) Maori Perspectives on Collaboration and Colonisation in Contemporary Aotearoa/New Zealand Child and Family Welfare Policies and Practices, paper presented at the Policy and Partnerships Conference, Wilfrid Laurier University, Waterloo. 
Maxwell, G (2008) Crossing Cultural Boundaries: Implementing Restorative Justice in International and Indigenous Contexts, Sociology of Crime, Law and Deviance, 11: 81-95.
Maxwell, G and Morris, A (1993) Family, Victims and Culture: Youth Justice in New Zealand.  Wellington: Social Policy Agency and the Institute of Criminology, Victoria University of Wellington.
Maxwell, G; Robertson, J; Kingi, V; Morris, A and Cunningham, C (2004) Achieving Effective Outcomes in Youth Justice.  Wellington: Ministry of Social Development.  
Ministerial Advisory Committee (1988) Puao-Te-Ata-Tu (Daybreak): The Report of the Ministerial Advisory Committee on A Maori Perspective for the Department of Social Welfare.  Wellington: Department of Social Welfare. 
Morris, A and Maxwell, G (1993) Juvenile Justice in New Zealand: A New Paradigm, Australian and New Zealand Journal of Criminology, 26(1): 72-90. 
Morris, A and Maxwell, G (1998) Restorative Justice in New Zealand: Family Group Conferences as a Case Study, Western Criminology Review, 1(1) retrieved from http://wer.sonoma.edu/v1n1/morris.html.
Moyle, P (2013) Fro Family Group Conferencing to Whaua Ora: Maori Social Workers talk about their Experiences, unpublished Master's thesis. Palmerston North: Massey University. 
Richards, K (2007) 'Rewriting History: Towards a Genealogy of 'Restorative Justice', unpublished PhD thesis. Penrith: University of Western Sydney. 
Tauri, J (1998) Family Group Conferencing: A Case-Study of the Indigenisation of New Zealand’s Justice System, Current Issues in Criminal Justice: 10(2): 168-182.
Tauri, J (1999) Explaining Recent Innovations in New Zealand’s Criminal Justice System: Empowering Maori or Biculturalising the State, Australian New Zealand Journal of Criminology, 32(2): 153-167. 
Tauri, J (2005) Indigenous Perspectives (chapter), in Walters, R and Bradley, T (eds), Introduction to Criminological Thought:  Auckland: Pearson Longman.
Tauri, J (2009) An Indigenous Commentary on the Standardisation of Restorative Justice, Indigenous Policy Journal, forthcoming.
Tauri, J (2011) Indigenous Perspectives (reconfigured chapter), in R. Walters and T. Bradley (eds), Introduction to Criminological Thought (2nd ed.).  Auckland: Pearson Longman.
Tauri, J (2012) Indigenous Critique of Authoritarian Criminology, in K. Carrington; M. Ball; E. O’Brien and J. Tauri (eds.), Crime, Justice and Social Democracy: International Perspectives.  London: Palgrave Macmillan, pp. 217-233.  
Tauri, J and Webb, R (2011) The Waitangi Tribunal and the Regulation of Maori Protest, New Zealand Sociology.
Williams, C (2001) The Too Hard Basket: Maori and Criminal Justice Since 1980.  Wellington: Institute of Policy Studies.  

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