The Chief Justice’s George Winterton Memorial Lecture: the yoga of two antipodean constitutions

Warren Pyke

I suspect there will be those who want to comment, again, on the tikanga jurisprudence explained by the Chief Justice in her George Winterton Memorial Lecture.

Chief Justice Helen Winkelmann

In this article, I comment on the Chief Justice’s opinions about the relative merits of the Australian constitutional arrangements compared to New Zealand’s ‘flexible’ unwritten constitution, and her references to common law developments in the area, particularly relating to indigenous rights, in the context of what appears to be an argument for New Zealand’s superior, flexible constitutional arrangements.

Who was George Winterton (deceased 2008)? He was an Australian Professor of  Constitutional Law at the University of Sydney, who has been described as a “true giant  of Australian constitutional  law scholarship  and  the  academy  more  generally” (see HP Lee and Peter Gerangelos, eds, Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton, The Federation Press, Sydney, 2009).

A theme of the lecture was the relative flexibility of New Zealand’s constitutional arrangements, compared to what Professor Winterton described as “the uneasy fusion of models in Australia” which “co-exist in a state of uneasy equilibrium”, with uncertainties surrounding executive power in Australia, arising from contradictions inherent in the simultaneous operation of principles of responsible government derived from the British tradition and the formal separation of powers and federalism derived from the American constitution.

The Chief Justice presents a short history of New Zealand as a colony, of the historical place of Māori in New Zealand society and of tikanga in the legal system, culminating with commentary on the reference to tikanga by the Supreme Court in Ellis v R [continuance] [2022] NZSC 114, fitting its dictum within “the stabilising effect that the incremental common law method must be allowed to have”.

Interestingly, her speech does not appear to have given any prominence to tikanga as “first law”, as ambiguously pronounced in the majority judgments in Ellis.

Fuzzy line

In his contribution to the essays referenced above, the late Sir Anthony Mason (a former Chief Justice of Australia) points out that no contributor to the essays denied the  legitimacy of constitutional advancement through judicial interpretation.

Sir Anthony Mason

But, as  some suggest, the real interpretive question is whether the High Court has on occasion crossed the sometimes fuzzy line that divides legitimate constitutional interpretation from  illegitimate judicial amendment.

This is echoed by some of the recent criticisms of the New Zealand Supreme Court’s jurisprudence (see, for example, Jack Hodder KC’s One Advocate’s Opinions — The ‘Least Dangerous Branch’? Predictability and Unease” [2024] New Zealand Law Review 423).

Different constitutional arrangements do not appear to have significantly affected the modern emergence of these tensions in the antipodes.

On the other hand, Sir Anthony refers to the problematic nature of the Kable principle (referring to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51), which holds that state parliaments cannot pass laws that undermine the “institutional integrity” or independence of Supreme Courts, as these courts are deemed part of the integrated Australian judicial system established by the constitution.

He opines that there are likely to be more High Court cases involving impugned legislation which seek to modify the manner in which the courts exercise judicial power (an example of which we are seeing in New Zealand in the Marine and Coastal Area (Takutai Moana) cases and legislation).

Sir Anthony warns of “at some  point,  stripping the courts of their usual characteristics associated with due process and procedural fairness.” Just so: indeed, not all is plain sailing in the development of the common law in this area in New Zealand, contrary to the impression one gains from the Chief Justice’s address (see, for example, Justice Minister warns government will legislate ‘over the top’ of court decisions to create clarity and certainty, LawNews, September 25, 2025, being a comment made in the wake of the decision in Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira O Waioweka [2024] NZSC 164).

Moreover, and with respect, merely stating that Ellis was not “a revolutionary moment” in the common law of New Zealand fails to address the cogent arguments of eminent critics.

A new foundation

In Ellis v R: A Revolution in Aotearoa New Zealand, Welcome or Not? [2025] New Zealand Law Review 47, Emeritus Professor Peter Watts characterised Ellis as a revolutionary step and added that:

“The development is inconsistent with the existing constitution of New Zealand, and more particularly with the statutory basis of the jurisdiction of the New Zealand courts. Further, the fact that under Ellis the courts are of their own volition unable to determine the content of tikanga entails that the majority has introduced a form of co-governance into the common law that was not part of the existing constitution.”         

This innovation is beginning to be applied to judicial decision-making in a variety of areas, as it was seemingly intended to do (see examples in Police v Leef [2025] NZDC 14940 and Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5).

This is more than mere ‘braiding’; it sets the foundation for a significant new body of common law to be created out of whole cloth, as Professor Watts essentially observes.

Professor Richard Ekins in his introduction to Judicial Power and the Balance of Our Constitution, Policy Exchange, London, 2018, opines:

“The scope of judicial authority is a matter of the utmost public importance. The common law tradition of adjudication has long understood that authority to be limited and disciplined: the courts have not enjoyed any general power to change the law, or to depart from Parliament’s lawmaking choices or to overrule the executive’s policy choices. These limits have come under some pressure in recent years.”

Professor Ekins adds:

“This collection [including Justice Glazebrook under the title, Comment: Mired in the past or making the future?] should serve as an invitation to lawyers, judges and scholars to reflect on that tradition, to sharpen their craft, and to parliamentarians and others in public life to recall that tradition and to choose with open eyes whether and when to change it or whether to tolerate its compromise or dilution”.

The application

Building upon the ‘first law’ dictum in Ellis, emerging precedents along that path will apply tikanga, kaitiakitanga and possibly other aspects of Māoritanga to legal disputes. The content of these cultural practices will be authoritatively stated in litigation by kaumatua and other cultural experts.

This evolving “first law” judicial doctrine will not be approved in its terms by Parliament, the people as a whole or by ordinary Māori on marae.

Some such tikanga, as articulated in judicial decisions, may be adopted but not created in legislation, which risks a chance of cultural reformation by lawmakers, which has the approval of neither Māori nor their leaders. While many are in sympathy with this affirmation of rangatiratanga, Aotearoa-New Zealand is no longer a tribal society: this cultural renaissance must fit within, and not cut across, fundamental democratic norms and the rule of law.

Formal treaty

Returning to the Australian constitutional system, its structure does not mean there is inflexibility in the development of the law relating to indigenous rights.

For example, in November 2025, Victoria became the first Australian state to sign a formal treaty with First Peoples, aiming to shift power, uphold self-determination and address systemic injustices.

These reforms establish three public institutions in Victoria under a new authority called Gellung Warl. These include the First People’s Assembly – to make representations to Parliament and to represent First Nations Peoples in treaty negotiations; the Nginma Ngainga Wara – to monitor government policies and make recommendations to the First People’s Assembly, and the Nyerna Yoorrook Telkuna – to act as a truth-telling body.

The longevity of this important reform will depend on widespread democratic support within the state, which will be tested at the next election. It is an opportunity for politicians in favour of the reform to convince the people of Victoria as a whole that the initiative is just and should be supported.

It will be interesting to watch what happens, as a constitutional challenge may follow, with opponents describing this reform as “locking in an unelected and unaccountable structure that will dictate the direction of our government and of our parliament,” with the “Gellung Warl having powers to make ‘substantive rules’ which will lead to laws being applied differently to Victorians depending on their race. This is inconsistent with the foundational value of our democracy, which is that all are treated equally under the law regardless of their race.” (https://ipa.org.au/read/aboriginal-treaty-to-demolish-democracy-and-fairness-in-victoria-forever).

This criticism, which has a superficially appealing and familiar ring, may fall on stony ground if the electorate in the state of Victoria affirms the reform by how they vote at the next election. If affirmed, it will have staying power and the benefits will be more likely to endure.

However, social justice reforms by judicial decision, particularly those which outpace parliamentary reform and public sentiment, lack stability, because they do not have democratic legitimacy. One might compare the long-term arduous progress made following the enactment of the Treaty of Waitangi Tribunal Act, and the successful claims and settlements processes that took place over the decades that followed the enactment of this ground-breaking legislation (see Finlayson and Christmas, He Kupu Taurangi: Treaty Settlements and the Future of Aotearoa New Zealand, Huia, Wellington, 2021: fans of Chris Finlayson KC can see lots of pictures of him inside).

Humility and restraint

Far-reaching social and cultural initiatives are best advanced in free and open societies by politicians, against their assessments of what the electorate will support. Politicians can speak to the broader population about such changes and make the case for them, both in and out of Parliament.

Judges cannot promote such causes among the people. They are stuck in the courtroom, confined by the facts put in front of them by litigants, and they have limited scope for making informed assessments of the social, political and cultural consequences of social justice initiatives they may think to be desirable.

It follows that judges should approach their role in such contexts with humility and restraint, giving due deference to the political process.

Warren Pyke

Warren Pyke is an Auckland barrister, a member of The Law Association’s Council and a member of the TLANZ Public & Administrative Law Committee