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Douglas B. Mansill Community Empowerment Or Institutional

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Douglas B. Mansill Community Empowerment Or Institutional Douglas B. Mansill Community Empowerment or Institutional Capture and Control? The Development of Restorative Justice in New Zealand’s Adult Systems of Social Regulation, Control and Punishment 2013 School of Social Sciences and Public Policy Faculty of Culture and Society A thesis submitted to the Auckland University of Technology in fulfilment of the requirements for the degree of Doctor of Philosophy [PhD] Abstract This study provides the first academic examination of the development of restorative justice within New Zealand’s systems of adult social regulation, control and punishment which was initiated in the mid-1990s as informal partnerships between community providers and the courts. McElrea (1994) and Consedine (1995) claim that the relational and participatory processes of restorative justice transfer power from the state to the community. It critically examines these claims against counter claims by Bowen (2004), Workman (2009), and Johnson (2010) of institutional capture and control. The interplay of power relationships between state institutions and community-based restorative justice providers and other key stakeholders created tensions within New Zealand’s restorative justice movement which impeded the effective delivery of restorative justice services. This study seeks to provide a framework for addressing these tensions by addressing the research question: ‘did the use of restorative justice in New Zealand’s systems of adult social regulation, control and punishment develop as an expression of community empowerment, or was it subject to institutional capture and control?’ The research used a combination of three key methodological approaches, drawing from Kuhn’s (1996) theory of paradigm change, ōrite, a holistic approach to understanding personal and institutional relations, and autoethnography, to critically analyse and interpret data from interviews, archival documents and audio visual material. Twenty-eight key informants consisting of restorative justice facilitators and administrators, public servants, politicians, lawyers and members of the judiciary were interviewed, in addition to data obtained from private and public archives, and critical reflection on my personal experience as an insider in the development of restorative justice in New Zealand. Analysis of power and empowerment draws from both modernist and post-structural theories (Boyes-Watson, 2005; Florin & Wandersman, 1990; Foucault 1994; Horman, 2001; Khotari, 2001; Page & Czuba, 1999) to help understand the relationship between community empowerment and institutional capture and control within the restorative justice movement in New Zealand. This study found that the development of restorative justice within New Zealand’s systems of adult social regulation, control and punishment could not necessarily be described in binary terms of community empowerment or institutional capture and control. Rather three expressions of restorative justice could be identified, namely State-authorised, NGO and Independent-community based on ideological understandings of power. A general lack of understanding amongst restorative justice practitioners of the different worldviews that informed the emergence and development of these expressions created tensions that characterised restorative justice movements in New Zealand’s adult regulatory systems. The thesis proposes a new paradigm for restorative justice administration underpinned by Te Tiriti o Waitangi principles of partnership, protection and participation as opposed to constructing restorative justice services within empowerment frameworks which tend to focus on sector group interests rather than communities. This proposal is one of the major contributions of the thesis to the knowledge and practice of restorative justice within New Zealand’s adult regulatory systems. Table of Contents Abstract ........................................................................................................................... Attestation of Authorship ........................................................................................... vi Acknowledgements .................................................................................................... vii Ethical Approval ......................................................................................................... ix CHAPTER ONE .......................................................................................................... 1 INTRODUCING THE STUDY .................................................................................. 1 Rationale and Significance of the Study .................................................................... 5 Scope and Limitations of this Study .......................................................................... 6 The Structure of this Thesis ....................................................................................... 6 SECTION ONE: THE CONTEXT FOR THIS STUDY ........................................ 11 CHAPTER TWO ....................................................................................................... 12 CONCEPTS OF POWER AND JUSTICE .............................................................. 12 The Interplay of Power Relationships ...................................................................... 12 Issues of Empowerment ........................................................................................... 13 Power and Empowerment in Institutional and Community contexts ...................... 14 Concepts of Justice .................................................................................................. 16 CHAPTER THREE ................................................................................................... 24 THE HISTORICAL AND INTERNATIONAL CONTEXT OF RESTORATIVE JUSTICE ..................................................................................................................... 24 The Civilisation Thesis and the Origins of Restorative Justice ............................... 24 Western Regulatory Systems: the Historical Context .............................................. 26 New Zealand Regulatory Systems: the Historical Context ...................................... 28 Five Discourses ........................................................................................................ 31 CHAPTER FOUR 41 METHODOLOGICAL APPROACHES AND DATA COLLECTION............. 41 Kuhn’s Theory of Paradigm Change ....................................................................... 41 Ōrite ......................................................................................................................... 46 Personal Experience and Autoethnography ............................................................. 49 Data Collection: Audio Interviews .......................................................................... 52 Focus Groups ........................................................................................................... 54 Te Ao Māori ............................................................................................................. 55 Data Analysis ........................................................................................................... 56 i SECTION TWO: THE DEVELOPMENT OF NEW ZEALAND’S ADULT REGULATORY SYSTEMS ..................................................................................... 57 CHAPTER FIVE ....................................................................................................... 58 TE AO HURIHURI ................................................................................................... 58 Te Ao Māori: Cosmology and Tikanga ................................................................... 59 Mana Ōrite: Regulatory Control and Balances of Power ........................................ 63 Māori Regulatory Systems and Restorative Justice ................................................. 68 Co-existence, Co-operation, Confrontation and Co-option ..................................... 70 Te Tiriti O Waitangi ................................................................................................. 75 Regulatory Control and Rapid Colonisation 1840-1880 ......................................... 78 CHAPTER SIX .......................................................................................................... 83 CLASSICISM AND THE NEW CRIMINOLOGY................................................ 83 Arthur Hume, Classicism and Enlightenment Theory ............................................. 83 The New Criminology ............................................................................................. 87 Punishment, Deterrence and Rehabilitation: The Merging of two Paradigms ........ 90 Barnett, Hanan and Robson: Optimism and Reform. .............................................. 93 SECTION THREE: RESTORATIVE JUSTICE AND NEW ZEALAND’S ADULT REGULATORY SYSTEMS ...................................................................... 98 CHAPTER SEVEN .................................................................................................... 99 THE CHILDREN AND YOUNG PERSONS AND THEIR FAMILIES ACT (1989) ........................................................................................................................... 99 Regulatory Control of Youth Offending in New Zealand prior to the 1980s .......... 99 The Resurgence of Māori Consciousness .............................................................. 101 From Welfare
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