Neil Sands
Parliament must assert its constitutional sovereignty to counter a campaign of judicial activism, starting with preventing tikanga Māori from becoming a compulsory subject for law students, barrister Gary Judd KC told a select committee hearing on Wednesday.
Judd addressed Parliament’s Regulations Review committee in support of his complaint about a bid by the New Zealand Council of Legal Education (NZCLE) to make tikanga a core topic in law schools from January next year.
“Law students are being co-opted into the advancement of a political agenda,” he told the committee.
Judd said the NZCLE’s move was part of a broader push by activists to make tikanga, which he described as an “amorphous, spiritual culture”, part of the law.
“Here we have a situation where the courts, in particular some members of the Supreme Court, have completely overstepped the constitutional boundary… to say that tikanga is the first law of New Zealand and it has to be taken into or regarded as such,” he said.
“Parliament really has to stand up and affirm the fact that Parliament is sovereign. If we’re going to have radical changes to the law such as this, then it is only Parliament that has the constitutional right to do it.”
Gary Judd KC
Judd said tikanga did not qualify as law and students should not be forced to study it as a prerequisite of qualifying to practise.
“Laws must be publicly promulgated, clear, accessible and generally applicable to all persons. They must be prospective, stable and applied consistently and impartially by officials and the judiciary. Tikanga does not satisfy any of those requirements,” he said.
He added: “I urge committee members to send the right message by deciding to propose a motion to the House to disallow the tikanga regulations. Not doing so will send the wrong message and encourage further activities calculated to undermine our free and democratic society.”
The NZCLE originally wanted to make tikanga a core subject for all law students in 2022 but pushed out its implementation until 1 January 2025 to allow law schools sufficient time to prepare for the change.
It means that from next year, tikanga will sit alongside eight other compulsory subjects that aspiring lawyers must study – the legal system, jurisprudence, legal ethics, public law, contracts, torts, property and criminal law.
Modest power
NZCE chair Justice Neil Campbell KC said the decision to make tikanga compulsory was a reflection of its increasing prominence in New Zealand law, not a value judgment on its merits.
“The council is not some sort of ultimate appellate court with power to override decisions of the Court of Appeal, Supreme Court or legislation passed by this House,” he told the committee.
“It has a much more modest power – to determine what the core subject competencies of people who wish to practise as lawyers in New Zealand. When the council exercises that power, it has to take the law as it sees it.”
Justice Campbell rejected the suggestion that making tikanga compulsory was part of an activist campaign, saying it had support from a range of bodies across the legal profession.
“They’re not part of some cabal of revolutionaries: the Arbitrators and Mediators Institute of New Zealand, the New Zealand Bar Association, the New Zealand Law Society (NZLS), the Criminal Bar Association [and] a number of very senior KCs of the same sort of generation as Mr Judd.
“I very much encourage you as a committee to pay attention to those views which have simply reinforced the council’s view that this subject matter that should be compulsory for law students.”
Heated debate
Judd’s complaint, laid in early May, stirred heated debate on the topic of tikanga.
NZLS’ submission to the committee argued that making tikanga a core subject reflects the reality that it is already an important element of our legal system.
“Irrespective of the complainant’s views as to whether it should be, the fact is that tikanga is a part of our law. Tikanga and its place in law have an extensive history, both in common law and in statute,” NZLS says.
“It is important to note that what is proposed is the teaching of tikanga as it pertains to law. It is not a compulsory requirement to study tikanga more generally, nor is it intended to ‘inculcate beliefs and values’.”
The Māori Law Society (Te Hunga Rōia Māori) submission says, “Mr Judd’s complaint is based on views that are antiquated and take an outdated, myopic view of the law in New Zealand”.
The claim that tikanga is not law is inconsistent with historic and modern views about the place of tikanga.
“Judges, legal academics and law practitioners now generally accept that tikanga has the normative characteristics of law and can be applied as such.”
In its submission, the Asian Legal Network said the scope of the complaint being considered by the Regulation Review Committee goes well beyond the issues of compulsory tikanga in legal education and moves into the area of judicial interpretation.
“The tikanga regulations are responding to the current legal landscape, whereas Mr Judd KC’s complaint is largely a criticism against judicial decisions and the judiciary itself, which is better litigated in court or other legal forums,” it says.
“We are concerned that upholding such a complaint indirectly criticises the judiciary and risks infringing on the principle of comity. Most importantly, these regulations are important for legal education and future lawyers navigating the interplay between tikanga Māori and state law.”
Ministerial warning
Justice Minister Paul Goldsmith told a function hosted by The Law Association of New Zealand last month that “extreme care” was needed when attempting to weave tikanga Māori into aspects of New Zealand’s legal system.
Paul Goldsmith
Goldsmith said tikanga was “absolutely appropriate” in relation to Māori Land Court decisions and possibly appropriate in Family Court settings and other similar areas.
“But when it comes to setting the rules for commerce, I think we need to be extremely careful.”
He said foreign investors needed confidence and clarity around the law when making decisions about where to put their money.
“If you’re a Singaporean, or whatever, wanting to invest $1 billion in New Zealand and you look at the law in relation to the Resource Management Act… and you can’t be clear exactly what it means because it has an increasingly bespoke New Zealand version of it, then that obviously has potential challenges.”
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