Tikanga Flashcards
How are the Alcohol and drug treatment court and Matariki court different from traditional courts?
They are informal and involve all parties (judge, offender, family, cultural advisors ect) sitting around a table to dicuss and agree on a plan towards rehabilitation. This results in a greate sense of responsibilty of the offender and their community. It has better success rates than tratitional punishment.
What is the Te Ao Marama Court?
A court centred at the district courts that address underlying causes of offending and encorporates culture.
What is the purpose of incorporating cultural officials into the Te Ao Marama Court process?
To help contextualise and assist offenders where culture may be a factor in rehabilitating their behaviour.
What are some issues of intorduction of a seperate Maori justice system? (4)
Constitutionality: a seperate system may be seen as discriminatory for either party and could breach NZBORA.
Juristictional issues: a seperate system would require new laws and regulations, any conflict between the two systems would result in legal challenges.
Actionability/administrative unworkability: It would be unclear how they would actually implement and action the seperate system, would police od western system nto arrest anyone that htye think might fall under the Maori system? if they did accidently arrest would that cause a claim against?
Funding: it would require significant funding, this coud result in equity issues and a lack of resources or eduction of those operating the new system.
What are some positives of introduction of a seperate Maori justice system? (3)
Restorative justice: I seperate system could focus on healing and reconciliation and restoration of culture rather than ineffective punishment. Culturally relevance punishmsnet would be more effective and could reduce reoffending rates.
Cultural sensitivity: Seperate system could lead to a more cultrually sensitive treatment of Maori offenders. could also use more relevant dispute resolution and punishment methods.
Empowerment: Could empower Maori communites to take control over thair justice system and make it more personal and effective, hopefully leading to reduce representation of Maori in the system.
CASE 1: Where could Tikanga principles be benefically encorporated into our current system. (COMBINED SYSTEM)
R v Iti: The court determined that tikanga could be relevant to normative judgments, or where it is reasonable within the legislative requirements of the offense.
Such as resaonableness principles, reasonableness could be viewed differently from a cultural lense. Such as a child dying during bed sharing, parents being prosecuted for parentual duty to provide safe sleeping conditions, a cultural/tikanga view/approach to infant sleep within the culture could help assess the risk/reasonableness.
CASE 2: Where could Tikanga principles be PROBLEMATICALLY encorporated into our current system. (COMBINED SYSTEM)
Clarke v Takamore: This case resulted in a disscussion of encorporating tikanga in an urban context. The court rocognised that urbanisation made it hard for Maori to maintain tribal links. Mr Takamore’s choice to live outside of his cultural customs meant that those customs could not be imposed on him ot his representative.
The court suggested that tikanga might need to evolve under the pressures of urbanisation.
The Judge decided that cultural disconnect of an individual must be considered when deciding whether tikanga is applicable.
Issues with COMBINING a Maori legal system (3)
Applicability: If we were to combine a Maori system or different tikanga system into our current system it could create issues surrounding who woud be eligibable to fall under what law, or who it would be effective for. If it applied to everyone it may not be culturally relevant for them and if you could chose which to fall under would that be possibel?
Clash: would it create a clash between existing laws and practices, does that mean tikanga would prevail or western would prevail? if western revails does that result in no real change at all? would we need to edit all previous where inconsitencies arise?
Resources and expertise: Think to the situation regarding COVID isolation escape by a maori women who’s partner (expartner) passed away and she was denied leave to attend the Tangi. She escaped the mandated isolation because in Maori culture death and death practices are important and sacred. The judge disagreed with this defence and said instead that she was selfish and put the community as risk which did not uphold tikanga. He recieved great criticism for this as he was not knowledgable or in a position to interpret tikanga. If we expect judges to interpret tikanga properly they would need extensive trining and education, plus cultural advisors to ensure consistency and to advise in novel cases.
Advantages with COMBINING a Maori legal system (2)
Same as the postives with the seperate system.
It could also benefit the anverage New Zealander because it could be more effective naturally as it is a more holistic method to punishment. If focused more on rehabilitation, the whole criminal system coud be less overloaded and people may feel more connected overall. Especially those with charges that are circumstantial (mental-health) like drugs or homlessness as those not always ill intended and they would benefit more from actual help than punishment.
Two theories on why we punish
Concequentialist theory: argues that the primary goal of punishment should be to bring about desirable consequences for society as a whole. Deterence is making ofenders fear the negitive concequence to deter from their actions. Rehab is trying to reintergrate into society and minimise reoffending, incapacitation is removing the offender from society to stop the harm. restoration is reparing the harm caused by the offense and reconciiating the offender and the community with things like community service.
Retributive theory: That the offender deserves to be punished, to even the scales of justice. The ounishment should be proportional and similar to the offence committed.
What is the difference bwteeen civil and criminal proceedings? (3)
Substantive difference: The broader societal impact and the concept of moral blameworthyness and free will.
Procedural difference: It is the state that proceeds agaisnt the individual in criminal proceedings not another individual as in civil.
The state does not award damages, but exacts a penalty. In civil, they try to undo the wrong to restore to the position the situtation was in before the wrong was committed.
What is the presumption that no defences exist?
The burden of proof lies with the prosecution, but the defence has the responsibiltiy of intorducing the arguments or evidence to support a defence. The defence must raise the issue and suggest a defence is inplay. If no defence is risen by the defence then the prosecution has no obligation to consider if a defence exists.
What is the presumption that no defences exist?
The burden of proof lies with the prosecution, but the defence has the responsibiltiy of intorducing the arguments or evidence to support a defence. The defence must raise the issue and suggest a defence is inplay. If no defence is risen by the defence then the prosecution has no obligation to consider if a defence exists.
What is the importance of R v Harbor
“Beyond a reasonable doubt.”
If there is a realistic doubt on any element of a judgement then you cannot prove guilt.
What type of system if our current criminal law system?
Bi or mono-cultural
