Presentation to the Griffith University Symposium: Bringing the 'Alternative' Back into Restorative Justice, Wednesday 25 November 2020

Kia ora all

Here is the link to my recorded keynote of the Griffith University Symposium Bringing the 'Alternative' Back into Restorative Justice, held on Wednesday 25 November 2020.

The title of the presentation was 'Restorative Justice in the Land of the Long White Lie'

Can the Restorative Justice Industry be Relevant to Indigenous Peoples?

The following commentary is made in response to the recent restorative justice symposium held in Wellington, New Zealand on 24-25 October 2018:

As an Indigenous scholar, I hold little hope that the Restorative Justice (RJ) industry will one day prove itself to be of significant value to Indigenous peoples. My pessimism is based on my observations and experiences of the way members of the industry go about their work. Especially problematic is the fact that the consistent use of elements of the Indigenous life-world by RJ advocates cannot be considered an unintended consequence of the marketing activities of the industry. The marketing of RJ products is underpinned far too often by the reiteration of unsupported myths designed to demonstrate the ‘indigenousness’ of what is ostensibly a white, middle class dominated and controlled crime control business, for this to be considered as anything other than the purposeful employment of Indigenous knowledge and practice for the advantage of the industry (Cunneen, 2008; Tauri, 2014). And so, RJ advocates continuing to bastardise Indigenous philosophies and socio-cultural practices, and to mislead the ‘market’ about the ‘Indigeneity’ of their products. This activity continues despite a decade or more of sustained Indigenous, and non-Indigenous critique of this behaviour (for example, see Blagg, 1997; 2008; Cunneen, 1998; 2008; Love, 2002; Tauri, 1998 2004, to name but a few).  To date, there has been little response to this critique. Indeed, I would suggest that the situation is worse than that: it appears the more we point out the unethical conduct of members of the RJ movement with regards Indigenous peoples, the more our views are ignored.  So, why the lack of response to the Indigenous critique? Why do members of the RJ industry continue to co-opt elements of Indigenous life-worlds, and continue to exaggerate the indigenous foundations of both their movement and some of its key products? These questions provide the basis for an interesting and informative research project. Until that is done we can only speculate, as I will attempt to do to do here.

It is now well established that members of the RJ ‘community’ aggressively marketed their RJ wares, most especially derivatives of New Zealand’s FGC forum, on the increasingly globalised crime control market (Tauri, 2016). It has further been established that the marketing was most aggressive in those settler colonial contexts suffering from the dual wicked problems of Indigenous over-representation and the radicalisation of Indigenous political activity (Tauri, 2014). This should come as no surprise to anyone who has engaged with the RJ lexicon that exploded from 1990 to the late 2000s. Much of this material contained oft-repeated claims of the indigenous foundations of RJ policies and philosophies and forums imbued with the ancient teachings and practises of Indigenous peoples (Richards, 2007). That the RJ movement is now accepted as a legitimate player on the globalised crime control market, and treated by the settler colonial states as a viable partner in its continued domination of crime control, owes much to the development and marketing of the industry’s supposedly ‘Indigenous products’. In part this may explain why so many RJ advocates, in particularly those responsible for bastardising Indigenous peoples’ philosophies and justice processes, remain silent in the face of increasing critique of their practice. And why would they not choose to remain so? For right now they have the support of the state to design, implement and ‘evaluate’ their products.  In return, and to ensure their products are ‘marketable’ to the biggest funder of crime control, they modify them, continually designing out or softening the restorative ‘bits’ in order to make them more palatable to the tough on crime stance that dominates governmental response to social harm in most Western jurisdictions (Roach, 2012; Rudin, 2005; Suzuki and Wood, 2017; Tauri, 2009). In a policy environment like this, what is a little bit of noise from a small group of stroppy coloured folk, when the Industry has been accepted into the governmental fold, and is eligible to receive taxpayers’ monies?  After all, they know better than us what our communities need, right? 

Wrong. From a critical Indigenous perspective the response to the deceit, the myth-making and condescension of the RJ industry towards us is obvious: if you continue to use our philosophies and practises without our input and consent; if you continue to use ‘our stuff’ to line your own pockets and to further your careers without respectful engagement with us; if you continue to exaggerate the ‘Indigenousness’ of your products, and ignore our critique of your conduct, then you are a hypocrite who is not living up to so-called principles of the restorative justice movement to which you belong. You will also do serious damage to the movement itself in being able to work to achieve the transformative potential its members claim it is capable of. But perhaps just as important to a movement founded on social justice principles and aims, you will soon cease to be of any consequence to one of the most disaffected, disenfranchised communities residing in the settler colonial context.

This commentary was formulated to inject an Indigenous perspective into one of the key ‘contested areas’ of RJ-related analysis, namely its value to marginalised communities residing in western jurisdictions. It has also been designed to yet again offer an empirically-informed perspective on what I consider to be one of the significant ‘grey areas’ of RJ theorising, policy formulation and practice, namely the Indigenous experience of all this activity.  I say ‘yet again’ because while it has been written with these key aims in mind, it was also written with another purpose in mind - to cajole, to embarrass, to prompt RJ advocates and practitioners to respond to the Indigenous critique of RJ. In truth, the ‘debate’ about the value of RJ to Indigenous peoples is not a contested area at all, because as stated earlier the majority of theoreticians, advocates and practitioners have thus far ignored the Indigenous critique. For there to be a ‘contest’ there would actually have to be a debate, and so far the only debate that appears to taking place is between like-minded, RJ advocates who are conveniently ignoring the Indigenous experience.

By comparison, it is more accurate to say that the impact that RJ is having on Indigenous communities is indeed a ‘grey area’ of practice.Despite this, advocates continue to make claims about RJ programmes, like the FGC and other conferencing formats, being ‘capable of meeting the needs of Indigenous peoples’ because of a magical alignment between these formulations and our ‘ways of doing justice’. Indigenous-led research by the likes of Moyle (2013; 2014), Victor (2007) and others, inserts an empirically-informed edge to our critique, and also acts as a thinly veiled challenge to the RJ to up its game when making claims about the ‘added value’ of its activities for our communities.

I have from time-to-time been asked if RJ offers anything of value to Indigenous peoples, if we ‘want’ it, if it can play a meaningful part in how Indigenous communities respond to social harm that occurs in our communities. I usually answer these questions with a two part response, the first being direct and to-the-point, which is that it is hard to formulate a response because there has been very little RJ ‘delivered’ in Indigenous communities across all settler colonial contexts. Most of what passes for RJ programmes experienced by Indigenous peoples are state-controlled standardised criminal justice interventions where the RJ elements have been exaggerated to create the illusion of communitarianism. And secondly, I answer by saying that rather than having to identify a position on the validity of the use of RJ by or in Indigenous communities, it is for RJ advocates and practitioners’ to demonstrate why their policies and programmes should be implemented in lieu of our own responses to social harm.  

For the  RJ movement to become relevant to us it needs to 1) stop mythologising its own history, 2) enhancing the mythologising by exaggerating its linkages to Indigenous life worlds, 3) stop using elements of our life-worlds to market their products, without our permission, 4) engage with our scholarship, with our perspectives,  instead of relying on the perspectives of non-Indigenous academics and advocates, and finally, 5) show us some respect by actually respond meaningfully to our critique of the industry, its products and the activities of its practitioners.  These things I believe are necessary for the movement to demonstrate that it can be a critical ally, one that supports our drive for self-determination in the realm of justice. 

References

Blagg, H., 1997. A just measure of shame?  Aboriginal youth and conferencing in Australia, British Journal of Criminology, 37(4), pp. 481-501.

Blagg, H., 2008. Crime, aboriginality and the decolonisation of justice. Sydney: Hawkins Press. 

Cunneen, C., 1997. Community conferencing and the fiction of Indigenous control, Australian New Zealand Journal of Criminology, 30, pp. 292-311.

Cunneen, C., 2008. Indigenous anger and the criminogenic effects of the criminal justice system.  In A. Day; M. Nakata and K. Howells eds. Anger and Indigenous men. Leichhardt: Federation Press, pp. 37-46.  

Love, C., 2002. Maori perspectives on colloboration 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, June. 

Moyle, P., 2013. From family group conferencing tp whanau ora: Maori social workers talk about their experiences, unpublished Master's thesis, Massey University. 

Moyle, P., 2014. Maori social workers’ experiences of care and protection: A selection of findings, Te Komako, Social Work Review, 26(1), pp. 5-64.

Richards, K., 2007. 'Rewriting history': Towards a genealogy of 'restorative justice', unpublished PhD thesis, University of Western Sydney. 

Roach, K., 2012. The institutionalisation of restorative Justice in Canada: Effective reform or limited and limiting add-on? In I. Aertsen., T. Deams., and L. Robert, ed. Institutionalising Restorative Justice. New York: Routledge, pp. 167-193. 

Rudin, J., 2005. Aboriginal justice and restorative justice.  In E. Elliot and R. Gordon eds. New directions in restorative justice: Issues, practice,evaluation. Devon: Willan Publishing, pp. 89-114. 

Suzuki, M., and Wood, W., 2017. Co-option, coercion and compromise: Restorative justice in Victoria, Australia, Contemporary Justice Review, 20(2), pp. 274-292. 

Tauri, J., 1998. Family group conferences: A case study of the indigenisation of New Zealand’s justice system, Current Issues in Criminal Justice, 10(2), pp. 168-182.

Tauri, J., 2004. Conferencing, indigenisation and orientalism: A critical commentary on recent state responses to Indigenous offending. Paper presented at The Qwi: Qwelstom Gathering: ‘Bringing Justice Back to the People’, Mission, British Columbia, 22-24 March. 

Tauri J., 2009. An Indigenous commentary on the standardisation of restorative justice, Indigenous Policy Journal, 20(3), online. 

Tauri, J., 2014. Settler-colonialism, criminal justice and Indigenous peoples, African Journal of Criminology and Justice Studies, 8(1), pp. 20-37.

Tauri, J., 2016. The state, the academy and Indigenous justice: A counter-colonial critique,  unpublished PhD thesis, University of Wollongong. 

Victor, W., 2007. Indigenous justice: Clearing space and place for Indigenous epistemologies. Ottawa: National Centre for First Nations Governance.  

Beware Restorative Justice Advocates Bearing Gifts: A Commentary on the Glorification of Family Group Conferencing

The following is a commentary on the glorification of the family group conference (FGC) forum, motivated by a reading of Carolyn Henwood and Stephen Stratford's book A Gift to the World: The Youth Justice Family Group Conference, published by The Henwood Trust (2014).

Introduction

Thus planetarised, or globalised in a strictly geographical sense, by this uprooting at the same time as they are de-particularised by the effect of false rupture effected by conceptualisation, these commonplaced of the great new global vulgate that endless media repetition progressively transforms into universal common sense manage in the end to make one forget that they have their roots in the complex and controversial realities of a particular historical society, now tacitly constituted as model for every other and as a yardstick for all things.

                                                                                Bourdieu and Wacqaunt (1999: 42).

The quote from Bourdieu and Wacquant came to me part way through my first reading of Carolyn Henwood and Stephen Stratford’s offering A Gift to the World: The Youth Justice Family Group Conference.  The sentiments expressed in the quote neatly summarise their stance on the purpose of the FGC forum, and the place they believe it has in New Zealand’s youth justice system  In short, Henwood and Stratford’s text represents a recent edition to the growing lexicon that is providing the ideological fuel that has been driving the globalisation of the FGC forum since the mid-1990s (see Richards, 2007; Tauri, 2014).  I will return to the links between the quote and the book under review later, but first I wish to provide a brief overview of the focus and aims of the book.

The Aims of ‘A Gift to the World’

Early on, the authors of A Gift to the World make it clear that the book is intended as a celebration of the FGC forum, a justice process they believe “can be a life-changing process for all involved and for New Zealand” (Henwood and Stratford, 2014: vii). The aims of Henwood and Stratford’s book are fairly straightforward: a) to provide a detailed description of how FGC’s ‘work’ (as in the process and the impact of the forums); b) give voice to the experiences of youth, their family members and professionals involved in the process, and c) challenge a number of ‘myths’ associated with the forum, including that it is “an indigenous, Maori response to offending”, that “ it is a soft [sentencing] option”, and that it “doesn’t work” to reduce crime (ibid: 85).

To achieve these aims the author’s utilise a combination of methods including analysis of FGC plans, and interviews with participants and justice practitioners.  This material was in turn used to construct seven case studies that are employed to inform the reader of the types of offences, offenders, victims and families an FGC forum can deal with, and the sorts of ‘outcomes’ the process leads to.  While the case studies appear to have been purposely selected to provide positive stories about FGC practice, nevertheless they represent one of its key strengths by providing critics and advocates alike with detailed descriptions of the FGC process that has till now been largely absent from the literature. 

I wish now to return briefly to the quote from Bourdieu and Wacquant that introduced this piece, before I launch into the substantive commentary:  This quote came to mind because the Henwood and Stratford present the FGC forum as a gift not just for New Zealander's, but to the world.  It is true the forum has been uprooted and planitarised; transferred across and into numerous jurisdictions over the past two decades.  It has been globalised to such an extent that advocates readily describe it as one of the most innovative and popular justice products developed during the 20^th century (Maxwell, 2008).  Policy makers and advocates alike wax lyrical about the crime reduction potentialities of the forum, and the ability of practitioners to create communities of concern that can work together to find meaningful ways of restoring social harmony, whilst holding youth offenders accountable for their behaviour (see Cary, 2000; Consedine, 1995; Zehr, 2002). 

However, in some instances advocates, including Henwood and Stratford, make such claims largely in the absence of empirical evidence derived from critical engagement with population groups most often impacted by the practice of the forum; including Maori in New Zealand, and Indigenous peoples residing in settler-colonial jurisdictions into which it has been transferred (Tauri, 2014).  In doing so, advocates create supposed ‘common sense’ understandings of the purpose and impact of the forum that “make one forget that they have their roots in the complex and controversial realities of a particular historical society” (Bourdieu and Wacquant, 1999; 42).  What is often written out of the history of the FGC forum and similar interventions (such as Sentencing Circles), is the fact that it was introduced at a time when it was commonplace for policy workers in settler-colonial jurisdictions to respond to Indigenous justice ‘issues’ by creating and/or importing indigenised justice forums that utilised ‘acceptable’ (meaning civilised) elements of Indigenous cultural practice.  Often shaded from view, is the part played by interventions like the FGC in the settler-colonial states multi-pronged strategy for blocking Indigenous attempts to attain a measure of jurisdictional autonomy (Lee, 1997; Tauri, 2004; Victor, 2007). 

FGC Advocacy and the Silencing of  the Critical Indigenous Perspective

Like many academics, upon receiving a new book or journal article that falls within my research interests primary areas of research - driven as much by a concern that the material reflect the Indigenous experience as to replenish my  ego - I turn to the bibliography to see if the authors have engaged meaningfully with the work of critical scholars.  For example, when reading a text that claims to offer an in-depth discussion of myths associated with the FGC, one can reasonably expect to find that the authors have engaged with the work of Shad Maruna, Chris Cunneen, Kelly Richards, to mention but a few.  Similarly, it is eminently reasonable to expect that when an author claims that their book or article on the FGC forum engages with Maori/Indigenous ‘issues’, to find the work of Wenona Victor, Harry Blagg, Chris Cunneen, Gloria Lee and myself, given a dismissive mention in a footnote at the very least.  Tellingly, none of the critical Indigenous material appears to have been on the reading list of the authors when they were contemplating writing ‘A Gift to the World’. 

A ‘Gift to the World’ suffers from one of the common weaknesses the FGC-related advocacy literature; namely that research and critical perspectives of Indigenous scholars, practitioners and community members is largely missing.  Instead, ‘expert’ commentary on issues of importance to Indigenous peoples is almost entirely based on the views and experiences of middle class justice professionals,  While members of this group have a right to be heard, one can also reasonably argue that they have a significant stake in presenting the forum in the best possible light. 

What is largely missing ‘A Gift to the World’ is the critical lived experiences of Maori/Pacifica professionals or participants whose experience of the forum have been less than positive, or that expose the mythology that sits behind many of the ‘truth claims’ of FGC advocates, such as the belief in the ability of the forum to accommodate any and all ‘difference’, be it based on class, gender, sexuality of ethnicity (more on this issue below).  As indicated above, it is no longer possible to contend that materials that report the negative experiences of Maori and Pacifica participants, or Indigenous peoples in settler-colonial jurisdictions that have imported the forum, are rare or difficult to source.  The work of Love (2002), Moyle (2013) and my own work (Tauri, 1998; 1999; 2004; 2014) on the New Zealand context, and Rudin, Lee, Victor, Cunneen and others I mention above who report on the experiences of Indigenous peoples in other jurisdictions, leaves little room for advocates to justify ignoring these perspectives. 

In failing to engage with the critical research and literature, the authors create an interesting contradiction, in that they end up lending weight to some of the myths they seek to discredit.  For example, on page 89 they attempt to debunk the myth that “the family group conference is an indigenous, Maori response to offending”.  Given that a lot of my own work in the FGC forum focuses on this issue, it was heartening to see that Henwood and Stratford were willing to tackle it head on.  Unfortunately their approach to this issue reinforces key issues identified earlier, including failing to engage meaningfully with the extant, critical literature, and an over-reliance on the views of justice practitioners.  Furthermore, their argument that while the FGC is not a Maori justice form, it nevertheless “promote[s] participation… by a young Maori who has offended” by offering Maori participants “the opportunity to have the conference in chosen familiar surroundings, including on marae (traditional meeting area) (Ibid: 89) is severely compromised by a lack of engagement with research that contradicts this position. 

A cursory glance at the critical literature and government sponsored reviews of the process demonstrates that Maori whanau and communities are rarely ‘offered’ the gift of holding FGC’s in “familiar surroundings” (see for example, Morris and Maxwell, 1993; Maxwell, Robertson, Kingi, Morris and Cunningham, 2004; and Tauri’s 2011 analysis of their research in demonstrating the failure of the implementation of the FGC to enhance Maori ability to ‘practice justice’).  The failure to critically engage with the relevant research underlines the importance of distinguishing between what advocates and policy makers claim to be the aims of particular interventions, and the actual outcomes that result from practice.  In this instance, practice does not match the rhetoric that the FGC is a forum that offers Maori the opportunity to ‘lead’ the justice systems response to  the offending of their own (Tauri, 2014). 

Another key myth of the FGC supported by the authors of ‘A Gift to the World’, is that the forum responds easily to the cultural values and practices of diverse ethnic groups.  On pages 15-20 the authors replicate the oft-told myth of the forums ability to accommodate any and all ‘cultures’.  In comparison, a number of Indigenous and critical non-Indigenous scholars argue that the forum is more accurately described as a Eurocentric, standardised youth justice process that utilises fragments of Indigenous cultural practice others, but does little to empower us (see Blagg, 1997, 1998; Cunneen, 1997, 2002; Lee, 1997; Moyle, 2013; Tauri, (1998; 1999; 2004; 2014) and Victor, 2007).  I employ the term ‘standardised’ to describe the FGC forum with intent, for it is one of the great self-deceptions of justice practitioners and policy makers in settler-colonial jurisdictions is that justice forums derived from western criminal justice and criminological paradigms, can work for everyone or anyone regardless of ‘race’, differences in social or historical context (Tauri, 2009). 

To add gravitas to their portrayal of the cultural flexibility of the forum, Henwood and Stratford (2014: 20) cite Judge Fred McElrea who claims that “[t]he family group conference model is receptive to different cultural influences and can accommodate indigenous, European, and immigrant cultures with little  difficulty”.  Unfortunately for Henwood, Stratford and Judge McElrea, critical literature that exposes the diversity of Maori experiences (and of Indigenous peoples in other settler-colonial jurisdictions), says otherwise.  For example, what are we to make of the Judge’s comment in light of the experiences of Maori social work practitioners and whanau participants surveyed by Paora Moyle (2014; forthcoming) for her Masters and Doctoral research, who state that:

The family group conference is about as restorative as it is culturally sensitive... in the same way Pākehā [European] social workers believe they are competent enough to work with our people... Pākehā think they’re the natural ordinary community against which all other ethnicities are measured (participant 19).

In the FGC we were talking about how ‘Pākeha’ the caregiver training was when most kids in care are Māori.  The social worker said, “our training teaches all prospective parents how to be culturally sensitive... culture is important to us (to child protection) but the health and wellbeing of a child must come first.”  Like, being Māori is secondary, an add-on, or a choice!

And finally participant 21, a kaumatua (respected elder) who pointedly stated that:

CYF (Child Youth & Family) said I couldn’t attend the FGC because I wasn’t whānau [family].  But the whānau wanted a tikanga [philosophy] process and I was the kaumatua. Then the next week CYFs ring and ask me to attend a different FGC... talk about ‘dial a kaumatua.’

The material drawn from Moyle’s research demonstrates that the FGC forum does not always meet our specific cultural and social needs.  In particular, it highlights that in some instances justice officials actively work against whanau in ways that contradict claims that the forum responds to the needs of all ethnic groups with ‘little difficulty’. 

A Gift to the World?

If, as Henwood and Stratford infer in the title of their book, the FGC forum is New Zealand's ‘gift to the world’, then it would be a good idea to find out how it is being experienced ‘out there’.  And, being a critical Indigenous scholar and given  the propensity for RJ advocates to over egg the ‘Maoriness’ of the forum (see Richards, 2007), by ‘the world’ I am referring to indigenous individuals, communities and organisations residing in settler-colonial jurisdictions, and not members of the judiciary or government agencies, or FGC/RJ advocates motivated at least in part to ensure the forum is marketed as positively as possible (Tauri, 2014). 

For example, engaging with the critical work of the Stolo First Nation criminologist Dr Wenona Victor (2007) or the Cree scholar Gloria Lee (1999), reveals a world in which the cross-jurisdictional transfer of the forum is experienced less as a gift, and more as the imposition of a Eurocentric, standardised crime control process that impedes the development of Indigenous-led initiatives (Tauri, 2011).  Furthermore, engaging with the work of Kelly Richards (2007) reveals that the transfer of the FGC forum from New Zealand and Australia out to ‘the world’, was made possible in large part because policy makers and RJ advocates purposely exaggerated the Maori/Indigenous basis to the forum, especially to jurisdictions such as as the U.S and Canada that were also experiencing high level of Indigenous over-representation in the criminal justice system (see also Tauri, 2005; 2014). 

If the authors  of ‘A Gift to the World’ took time to engage with the critical research of Indigenous and our critical, non-Indigenous collaborators, they would find a world in which the FGC is a gift of the Trojan Horse variety.  They would find a world where once you dig through the thick veil of rhetoric about the cultural appropriateness of forums like the FGC, there lies a different reality.  They will find a situation where the forum is being experienced by some participants as an orientalised, state-dominated processes that has been imposed on Indigenous peoples, and impedes their attempts to develop responses to social harm based on their own cultural contexts (Tauri, 2004, Victor, 2007). 

Overall, the lack of attention given by the authors’ of ‘A Gift to the World’ to the range of experiences of Indigenous peoples of the FGC forum, detracts from the powerful stories revealed through the case studies.  In particular, the lack of attention to the negative impact the cross-jurisdictional transfer of the FGC has had on Indigenous people around the world, provokes me to conclude this commentary by paraphrasing a well known Indigenous dictum that underlines why Indigenous peoples should be wary of works that glorify the FGC forum: ‘Indigenous peoples everywhere, beware RJ advocates bearing gifts’. 

References

Blagg, H (1997) A Just Measure of Shame?  Aboriginal Youth and Conferencing in Australia, British Journal of Criminology, 37(4): 481-501.

Blagg, H (1998) Restorative Visions and Restorative Justice Practices: Conferencing, Ceremony and Reconciliation in Australia, Current Issues in Criminal Justice, 10(1): 5-14.

Bourdieu, P and Wacquant, L (1999) On the Cunning of Imperialist Reason, Theory, Culture and Society, 16(1): 41-58. 

Cary, M (2000) Restorative Justice – A New Approach with Historical Roots: Corrections Retrospective 1959-1999.  St Paul: Minnesota Department of Corrections. 

Consedine, J (1995) Restorative Justice: Healing the Effects of Crime.  Wellington: Ploughshare Publishing.

Cunneen, C (1997) Community Conferencing and the Fiction of Indigenous Control.  The Australian New Zealand Journal of Criminology, 30: 292-311.

Cunneen, C (2002) Restorative Justice and the Politics of Decolonisation, in E. Weitekamp and H. Kerner (Eds.), Restorative Justice: Theoretical Foundations.  Devon: Willan Publishing: 32-49.

Henwood, C and Stratford, S (2014) A Gift to the World: New Zealand’s Family Group Conference.  Wellington: Henwood Trust.

Lee, G (1997) The Newest Old Gem: Family Group Conferencing, Justice as Healing, 2(2): 1-3.

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, Robertson, J, Kingi, V, Morris, A and Cunningham, C (2004) Achieving Effective Outcomes in Youth Justice.  Wellington: Ministry of Social Development. 

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. 

Moyle, P (2013) From Family Group Conferencing to Whanau Ora: Maori Social Workers Talk about their Experiences, unpublished Masters thesis, Massey University.  

Moyle, P and Tauri, J (2015) Indigenous Peoples and the Mystifications of the Restorative Justice Movement, unpublished paper. 

Richards, K (2007) ‘Rewriting History’: Towards a Genealogy of ‘restorative justice’, unpublished PhD thesis. Penrith: University of Western Sydney.

Rudin, J (2003) Pushing Back – A Response to the Drive for the Standardisation of Restorative Justice Programmes in Canada, paper presented to The 6^th International Conference on Restorative Justice, Simon Fraser University, Vancouver, 2 October. 

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 (2004) Conferencing, Indigenisation and Orientalism: A Critical Commentary on Recent State Responses to Indigenous Offending (key note address), paper presented at Qwi: Qwelstom Gathering: ‘Bringing Justice Back to the People”, Mission, B.C, 22-24 March.

Tauri J (2009) An Indigenous Commentary on the Standardisation of Restorative Justice, Indigenous Policy Journal, 20(3), online.

Tauri, J (2011) Indigenous Perspectives (reconfigured chapter), in R. Walters and T. Bradley (Eds.), Introduction to Criminological Thought (2^nd ed.).  Auckland: Pearson Longman: 187-210.

Tauri, J (2014) Criminal Justice: A Colonial Project in Settler-Colonialism?  African Journal of Criminology and Justice Studies, 8(1): 20-37.  

Victor, W (2007) Indigenous Justice: Clearing Space and Place for Indigenous Epistemologies, research paper for the National Centre for Indigenous peoples Governance. 

Zehr, H (2002) The Little Book of Restorative Justice.  Scottsdale (PA): Good Books. 

Gangs, Restorative Justice and Policy

Attached is a video of a presentation I gave in Mission, British Columbia, Canada in December 2010; filmed by Heartspeak Productions.

Cheers

Juan

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.

Background

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).  

And

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. 

References

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 (2^nd 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.