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Senior King’s Counsel files complaint about compulsory tikanga Māori studies for law students

3 May 2024

| Author: Gary Judd KC

At present, the compulsory law degree subjects are The Legal System, The Law of Contracts, The Law of Torts, Criminal Law, Public Law and Property Law.

The tikanga regulations make it compulsory for all students commencing a law degree from 1 January 2025 to complete a subject on the general principles and practices of tikanga Māori | Māori laws and philosophy, and for tikanga Māori | Māori laws and philosophy to be included in all other subjects which are part of the compulsory requirements for the LLB and LLB Honours degrees.

The regulations were made by the New Zealand Council of Legal Education, comprising three judges, six appointees recommended by the New Zealand Law Society who presumably are lawyers, the deans of the law schools and two people recommended by the New Zealand Law Students’ Association.

The principal purpose of this complaint is to urge that one of the committee’s members move a resolution that the House disallow the tikanga regulations.

The tikanga regulations are symptomatic of a dangerous trend which has emerged within some sectors of New Zealand society where those with the power to do so seek to impose the beliefs and values of one section of society upon the community as a whole. They do so in this instance by pretending that tikanga is law and therefore it is fitting to compel law students to learn about it.

In doing so, they flout or aid and abet the flouting of the twin pillars of New Zealand’s constitution, the “continuing commitment to the rule of law and the sovereignty of Parliament” (s 3(2) of the Senior Courts Act 2016).

The problem is not the recognition of aspects of tikanga for specific purposes, for example customary title to Māori land. The problem is the holus-bolus adoption of tikanga as if it were part of the common law developed by the courts incrementally over the centuries, case by case.

 

Tikanga is not law

I have written two articles explaining why tikanga is not law (Tikanga is not law, and Tikanga is not law #2).

I won’t repeat them here but add additional commentary. The Supreme Court’s judgment in the Peter Ellis (continuance of the appeal) case (Ellis v R [2022] NZSC 114) has appended to it a Statement of Tikanga. It may thus be taken as an authoritative statement of what tikanga is.

The judgment is also indicative, and the most authoritative adoption, of the mode of thinking which underlies the Council of Legal Education’s attempt to make tikanga compulsory for law students. The judgment is the most graphic of a number which have sought to elevate tikanga. The primary justification given in Ellis is that tikanga is the “first law” of New Zealand. In its summary, the court stated:

[20] O’Regan and Arnold JJ do not consider this a suitable case for the court to make any pronouncements of a general nature about the place of tikanga in the law of Aotearoa/New Zealand, apart from the points set out at [19] above.

[21] The court (by majority of Winkelmann CJ, Glazebrook and Williams JJ) holds that the colonial tests for incorporation of tikanga in the common law should no longer apply. Rather, the relationship between tikanga and the common law will evolve contextually and as required on a case-by-case basis.

[22] The majority judges accept that tikanga was the first law of Aotearoa/New Zealand and that it continues to shape and regulate the lives of Māori. In light of this, the courts must not exceed their function when engaging with tikanga. Care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.

Consider the last statement: “Care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.” To the extent there are customs which have matured into a form of law for the people whose customs they are, it may be appropriate that they should regulate the lives of those people. The Supreme Court goes further by stating that tikanga can form part of New Zealand’s general laws. Ellis exemplifies this. Peter Ellis was not Māori. Nor were the complainants. The case had no Māori connection whatever. Yet the majority judges held tikanga to be relevant.

The Council of Legal Education’s decision to promulgate the tikanga regulations reflects the same sort of thinking. A law school could offer tikanga as an elective for those who see some value in it, but to put it on the same footing as criminal law, contracts, torts and so on by making it a compulsory subject and infusing it into every compulsory subject suggests evangelism rather than rationality.

Then Chief Justice Dame Sian Elias, in a 2015 address to the Otago University Faculty of Law, Judgery and the Rule of Law, stated (page 2), “In judging, as in extra-judicial commentary, the principal function of the judge is full exposition of the reasons for judgment, to convince or justify rather than rule. The rule of law is a rule of reason.”

She added on the next page, My reference in the title to this address to “judgery” was an attempt to disclaim the mantle of the hero judge by emphasising that judging is hard work. Often painstaking, as the judge looks to fit the case within the existing legal framework. Even where the case is not predetermined by existing authority binding on the judge, as most are, the decision cannot be simply the naked policy preference of the individual judge.

Judgments elevating tikanga to the status of law bear the mark of the naked policy preferences of individual judges. The so-called “colonial tests for incorporation of tikanga in the common law,” mentioned in paragraph [21] of the judgment, are the tests for when a custom may be recognised as law – tests developed and refined over the centuries. The Supreme Court happily jettisoned them because they do not accord with the nature of tikanga. Thus, for example, Glazebrook J said:

[114] The requirements for custom to exist as a general custom and to be certain and consistent do not accord with the nature of tikanga. Traditional legal systems tend to be more focused on values and principles rather than rules oriented. Further, one of the essential strengths of tikanga is its ability to adapt to new conditions and to have local variations as appropriate. These tests for certainty and consistency, being contrary to the very nature of tikanga, are therefore clearly inappropriate.

[115] In a similar vein, the requirements for a custom to be reasonable and not repugnant to justice and morality were based on colonial attitudes that are artefacts of a different time. They import notions of “judging” tikanga and operate on the assumption of the superiority of Western values and a view that the common law inherited from the United Kingdom should be presumptively dominant. I therefore do not consider these requirements for the recognition of custom have any place in the contemporary common law of Aotearoa/New Zealand. In any event, they are very narrow restrictions and are unhelpful for courts where they need to consider the role of tikanga in modern conditions.

 

No recognition as law

Certainty, consistency, generality, reasonableness and not being repugnant to justice and morality are all thrown out as necessary requirements because tikanga cannot pass those tests. This turns legal reasoning on its head. If tikanga cannot pass those tests, it means tikanga does not satisfy the requirements for recognition as law. It does not mean the tests must be abandoned. The requirements are not “artefacts of a different time”. They are hallmarks of a sound legal system and are as relevant today as they were in colonial times.

The tikanga regulations will compel law students to learn to elevate the values of tikanga over certainty, consistency and reasonableness and to treat them as worthy of credence, even where they are repugnant to justice and morality. Because that is what the Supreme Court has said.

Tikanga is given supremacy to override these principles and values of the common law. The only overt reason for doing so is the claim that it is “first law”.

If judges are to rule that tikanga must be imported into the common law of New Zealand because it is the “first law” of New Zealand, they must first explain what “law” is, and then explain why tikanga is within that description. Unless they do so, they cannot say they are giving a full exposition of the reasons for judgment. The majority of the Supreme Court did not even attempt to undertake the exercise. Had it attempted to do so, it would have failed.

The definition of “law” can vary, but a common understanding is a body of rules, proceeding from formal enactment or from custom, which a particular state or community recognises as binding on its members or subjects.

This is the Oxford English Dictionary’s definition. It emphasises the idea of a controlling authority, with laws being rules or commands that must be obeyed by all within the state or community. It also distinguishes between the law itself and the individual rules that constitute the law. Custom may be a source of law, but it is not law in itself.

The first of my articles (referenced earlier) reproduces the part of the Statement of Tikanga headed The nature of tikanga. I invite members of the committee to read it in light of the definition of law and to compare the description of tikanga with the criminal law, the law of contracts or any of the subjects which law students must now pass in order to get their degree. Tikanga is completely different. Saying that it is law, as the statement of tikanga does, does not make it so.

The very commencement of The nature of tikanga demonstrates that tikanga is not “law”:

It is the law that grew from and is very much embedded in our whenua (land)…. Tikanga Māori came to the shores of Aotearoa with our Māori ancestors, starting with Kupe and those on board the waka (canoe) Matahourua. In some traditions, tikanga merged with that already present.

Paragraph 29 in The nature of tikanga introduces “tikanga principles, concepts, practices and values”. Principles, concepts, practices and values are not law. Parliament may have regard to principles, concepts, practices and values when making laws, but the principles, concepts, practices and values are not themselves law.

It is a matter of great concern that the Supreme Court should endorse something as “first law” without going through what must surely be the elementary reasoning process of asking itself whether it is law at all.

 

No compulsion

Based on the Statement of Tikanga, the tikanga regulations will compel law students to learn “all of the values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct,” “the right Māori way of doing things,” “what Māori consider is just and correct”.

Why should law students be required to do that? Should they also be required to tune in to the norms of other communities forming part of our multicultural society? The answer is, of course, that law students should not be compelled to do any of this.

The regulations directly trench upon the human right affirmed by s 13 of the Bill of Rights, to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference. These regulations are intended to inculcate beliefs and values which may be held by some within our Māori community. Those within the Māori community who subscribe to these beliefs and values are absolutely entitled to do so but those who do not subscribe to them should not be compelled to partake of them.

Law students are compelled to be proficient in the present compulsory subjects. Those subjects are legal subjects. If a person wishes to practise law, it is right that they must be proficient in the core legal topics. It is not right that they should be compelled to learn about something which is not law.

 

Rule of law and the sovereignty of Parliament

In a foreword to Modern Challenges to the Rule of Law (2011, Richard Ekins, Ed), retired Court of Appeal judge Sir David Baragwanath KC quoted what he described as the classic summary of the rule of law by Professor John Finnis, which had guided Baragwanath for three decades:

… laws should be (i) prospective, (ii) capable of being obeyed, (iii) promulgated, (iv) clear, (v) coherent (not contradictory), (vi) stable (not changed arbitrarily), (vii) general (so that particular decisions are framed by general rules), and (viii) in fact directive of official action.

This is a variant of the so-called “thin” rule of law, indicating the minimum requirements of the rule of law. Proponents of a ‘thicker’ rule of law would incorporate additional requirements, but if laws do not satisfy these minimum requirements, they will not conform with the rule of law.

It is obvious that the tikanga described in the Statement of Tikanga does not satisfy the minimum requirements. The Supreme Court cannot endorse tikanga as first law, and therefore as law, without endorsing a system which does not conform with the rule of law.

Likewise, the tikanga regulations will compel law students to be taught that a system which does not conform with the rule of law is nevertheless law which should be observed and applied. Yet if these law students come to practise law, they will become subject to the fundamental obligation to uphold the rule of law imposed by s 4 of the Lawyers and Conveyancers Act 2006.

Concerning the sovereignty of Parliament, when the courts endorse tikanga as part of the general law, they are undoubtedly making law. Justice Glazebrook unashamedly testifies to this when she says, “[110] It is the function of this court to declare the law of Aotearoa/New Zealand ….”

As I have explained here, Declaring the law is no part of the function of any New Zealand judge. The judicial oath they take before entering office is to “well and truly serve His [or Her] Majesty … according to law,” which does not encompass declaring or making it. That is a matter for Parliament which our Constitution declares to be sovereign (see now s 3(2) of the Senior Courts Act 2016 – “Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.”)

If there were any warrant for importing tikanga into the common law, it would be for Parliament to do so through the parliamentary process, including input from the public through the select committee structure.

 

Disallowing secondary legislation

The New Zealand Council of Legal Education is empowered to make regulations by s 278 of the Lawyers and Conveyancers Act 2006. Section 278(4) provides that regulations made under s 278 are secondary legislation.

Section 115 of the Legislation Act 2019 provides that all secondary legislation is subject to disallowance, with limited exceptions which do not apply to the Council of Legal Education.

Section 116 provides that the House may, by resolution, disallow any secondary legislation. Section 117 provides that secondary legislation to which the subpart applies is disallowed if “a member of the Committee of the House of Representatives responsible for the review of secondary legislation gives notice of a motion to disallow it,” and various things happen thereafter. I infer, therefore, that a disallowance motion needs to be moved by a member of this committee.

I submit that a member of this committee should move such a motion.

 

Grounds of complaint

Standing Order 328 provides that where a complaint is made to the committee or to the chairperson of the committee by a person or organisation aggrieved at the operation of secondary legislation, the complaint must be placed before the committee at its next meeting “for the committee to consider whether, on the face of it, the complaint relates to one of the grounds on which the committee may draw secondary legislation to the special attention of the House”. The grounds are specified in S0 327(2).

This complaint relates to paragraphs (a), (b), and (c). The legislation is the 2006 Act which concerns legal work and the provision of legal services (both defined in s 6). The tikanga regulations are not in accordance with the general objects and intentions of the 2006 Act because they go outside the province of legal work and the provision of legal services, and they require law students to learn about so-called laws which are inconsistent with the rule of law.

The tikanga regulations trespass unduly on the personal rights and liberties of law students and those members of the public who might wish to become law students were they not to be subject to the requirements of the regulations.

The tikanga regulations are an unusual and unexpected use of the powers conferred by the 2006 Act. They are unprecedented.

 

Other matters

Part 5 of the Legislation Act 2019 has as its purpose supporting Parliament in overseeing and controlling the use of delegated powers to make legislation. It does this by requiring the secondary legislation to be presented to the House of Representatives in accordance with the House’s rules and practice.

Standing Order 325A provides that the relevant minister must present secondary legislation to the House within 20 working days after the day on which the secondary legislation is made. So far as I can tell from searching the Parliament website, the regulations have not been presented to the House, despite the regulations having apparently been made on 1 March. The minister cannot present the regulations to the House if the council as the maker has not sent them to the minister to enable him to do so.

Last year and now, the council was and is indicating on its website that from 1 January 2025, the New Zealand legal education curriculum includes requirements for the teaching and assessment of tikanga Māori | Māori laws and philosophy.

Earlier this year, I decided to look into the matter more closely. I wanted to see the actual regulations, but the link on the website took me to the 1 December 2017 consolidation of the Professional Examinations in Law Regulations 2008, without any tikanga amendments. I emailed the council. After some dialogue, I was sent a copy of the tikanga regulations and a copy of the 2017 consolidation containing yellow highlighting showing what was incorporated as a result of the tikanga regulations.

The tikanga regulations leave something to be desired in terms of drafting. For example, they purport to be amendments to the “Principal Regulation” (sic), but do not say what they are.

Section 278(3) of the 2006 Act provides that the council may not make regulations under the section unless the minister has approved the proposed regulations. According to advice I have received from the council, the regulations were approved by the then minister, Kiri Allan, by a letter dated 30 January 2023.

They could not have been lawfully made until after that approval. When acknowledging receipt from the council of the letter dated 30 January 2023, I noted “I wasn’t specifically seeking a copy of the minister’s approval but of all communications relating to the regulations since 1 January 2023, but I am grateful to you for sending me this document. Is it the only communication?” The reply (7 April) was, “Yes that is the only communication we have had with the minister since January 2023.”

This indicates that, whenever after 30 January 2023 the regulations were made, the council did not send them to the minister of the day to enable them to be presented to the House. ■

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2 Comments

  1. Tim Twomey

    I agree. Tikanga should not be made a compulsory subject for law students. Numerous law students from different ethnic backgrounds have their own cultures to which they adhere. It is not reasonable or fair for them to be forced to learn an unfamiliar culture which, for the reasons expressed by Gary Judd, has no standing in current NZ law. At most, Tikanga could only be observed and applied if and when it is relevant to Maori interests at law.

    Reply
    • Desmond Wood

      I am afraid that I cannot agree with the approach to tikanga as is proposed by Gary Judd KC. The common law from its foundation has always been a flexible beast able to be adapted and even stretched where appropriate. That is the consequence of the examination of the (reputed) snail in the bottle by Lords Reid and MacMillan and others and the expansion of the principle therein by the Law Lords in Hedley Byrne. Ellis was a refreshing case that recognised the status of tangata whenua in Aotearoa New Zealand and what a thousand years of their presence in this land has really meant. We all have to get with the programme.

      Reply

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