Neil Sands
Chief Justice Helen Winkelmann
New Zealand’s constitutional arrangements are flexible and constantly changing to account for issues such as the evolving role of tikanga, while Australia’s written constitution is difficult to change and has been referred to as “frozen”, Chief Justice Dame Helen Winkelmann says.
Delivering Sydney University’s George Winterton Memorial Lecture this week, the chief justice highlighted the contrasts between the Australian and New Zealand systems, as well as underlining the importance of tikanga as part of Aotearoa New Zealand’s legal landscape.
She told the Australian audience that New Zealand’s constitutional system was “to a degree… more straightforward” than Australia’s.
Not only is there no written constitution, New Zealand also lacks Australia’s federal structure of states, as well as the bicameral legislature in place across the Tasman.
Another key difference that Winkelmann noted is New Zealand has Te Tiriti o Waitangi-Treaty of Waitangi – an accommodation with first peoples that has no Australian equivalent.
“[It] lies at the beginning of New Zealand as a major nation,” Winkelmann said.
Australia’s constitution is notoriously hard to amend, requiring a public referendum that gains a “double majority” – approval from a majority of voters – in addition to approval from at least four of the six states. Only eight of 45 proposed amendments have ever been passed.
The chief justice said this has resulted in Australia being described as a “frozen continent” in constitutional terms, unlike the more fluid arrangements adopted in New Zealand.
“If I was to search New Zealand’s landscape for a fitting geographic metaphor, the one that springs to mind is a braided river of the kind that’s most typically found in New Zealand’s South Island,” she said.
“The absence of codification has given us a constitutional landscape that is constantly being reshaped by legislation, by court decisions and by significant historical and even cultural events.”
Tikanga in courts not new
Winkelmann said New Zealand’s constitutional flexibility “has enabled it to secure a stable government whilst meeting the needs of a dynamic society”.
A significant element of this dynamic landscape is the incorporation of tikanga. The chief justice ran through major developments to put tikanga and the treaty in a modern context, including the establishment of the Waitangi Tribunal in 1975 and cases such as Takamore (2012), Trans-Tasman Resources (2021), and Ellis (2022).
But she said the New Zealand legal system’s interaction with tikanga was nothing new, pointing out that it was widely used after the establishment of the country’s court system in 1841, until becoming marginalised in the 1860s.
She cited a Victoria University of Wellington Lost Cases Project, which collated previously unreported cases from 1842-1869 using newspapers, manuscript collections, archives and judges’ notebooks.
“From the earliest days, these courts were required to engage with customary law. Tikanga was most frequently employed by courts to determine the nature and extent of native title, which was a preparatory step, I’m afraid, to extinguishing it,” Winkelmann said.
“It was also used in other contexts, especially during the middle decades the 19th century, when Māori still outnumbered Pakeha. That persisted to about 1860.
“A lot of early business was conducted in accordance with tikanga, and social interactions were regulated by it, but over time, and certainly by the first half the 20th century, tikanga had become marginalised in common law and statute law, as applied in mainstream courts.”
Ellis ‘not revolutionary’
The chief justice said Māori maintained tikanga even when it became marginalised in the courts, leading to its concepts eventually entering wider New Zealand society and being used in business meetings, family relations, the protection of natural resources and responses to public tragedy.
She said the Supreme Court’s Ellis decision articulated the role of tikanga in the contemporary legal system.
“The court was unanimous that tikanga has been and will continue to be recognised in the development of New Zealand’s common law,” she said.
“The majority held the relationship with tikanga and the common law should evolve contextually and as required on a case-by-case basis. Caution was expressed that this was not a revolutionary moment, but certainly an example of the common law in operation.”
She said lawyers, public officials and judges in New Zealand needed to apply tikanga-based concepts, which was why it became a compulsory subject when studying for a law degree.
Winkelmann said New Zealand’s lack of a written constitution had allowed the flexibility to reflect factors such as those that have led to the recognition of tikanga.
“In the charter-free system, historical and social forces have ongoing potential to shape and to order New Zealand’s public law,” she said.
Tikanga is very relevant to the Maori Land Court and the Maori Appellate Court. Whether it applies, or fully applies, to the social contract thesis of civil government is more debateable.
It would have been helpful if she had defined “tikanga” and what “tikanga based concepts” are to be applied.