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It’s near the end of our law school journeys and we’re still unlikely to give you a great definition. But justice in its application—the application of statutes, acts, and rules—culminates in the question of should justice be equal or equitable? If justice is equal, then that is what you see; the imaginary web of rules that govern our actions. It is created by the rule makers: parliament, local government, university councils. And upheld by its arbiters: courts, tribunals, academic conduct committees. It applies to everyone no matter age, race, gender, or creed.
But that definition operates on the fallacy that people are wholly objective, judicial droids who apply laws strictly; everything equal in application. But where do you account for inequity; for the person who does not speak English but works 80 hour weeks to support their family, or has a history of abuse, poverty and oppression? Why does no one speak of the dawn raids and their flow on effects? Why is it common to be advised to change your name to improve employment prospects? Why do judges (like in R v Kamipeli, establishing that intoxication is not a defence) single out that the offender is Tongan but not that anyone else in the case is New Zealand European or any other ethnicity. How does the fact that he is Tongan make a difference on the judicial outcome, and if it doesn’t, why did it need to be highlighted?
Judge Becroft noted, at the 2016 Law and Culture Conference, that Pasifika youth offending isn’t as bad as it is popularised in society. But there is a disproportion in violent crimes by young offenders. The Pasifika Youth Courts in Auckland have been an intervention, adapting the court process to include cultural practices for young Pasifika offenders. This is the initiative of Victoria alumna Judge Ida Malosi, however the courts are arguably unsustainable due to the lack of Pasifika judges being appointed to support them. Why, then, are there not more Pasifika Judges? And where are our Pasifika QCs and Supreme Court Justices? What is this glass ceiling that holds us at bay? Many have the same if not better qualifications, so then where is justice? Is this justice?
In the end for there to be Justice, Justice must be equitable to be equal by definition.