Judd opposes the New Zealand Council of Legal Education’s plans to make teaching tikanga compulsory in the legal curriculum.
AUT Law School Dean Khylee Quince derided Judd on social media as a “racist dinosaur”. Meanwhile, Deputy Prime Minister Winston Peters condemned the planned tikanga requirements as “woke indoctrination”.
While Judd has taken aim at the Council, the underlying issue is not so much the Council’s compulsory tikanga requirements, as the Supreme Court’s controversial 2022 Ellis decision.
Despite the case having no Māori connection, the Supreme Court relied on tikanga in allowing Peter Ellis’s appeal against his convictions to continue despite his death. Three justices went further, indicating that any issue of law before the courts may need to be addressed in the light of tikanga.
The transformation Ellis represents is hard to overstate. Before Ellis, the courts accepted that tikanga-based custom could be recognised by the common law. But the courts did not recognise tikanga as a standalone legal framework. Ellis changed that at a stroke, elevating tikanga as “the first law of Aotearoa.”
Little wonder the Council now says law students must study tikanga.
What then of Judd’s complaints? Judd argues that compelling the study of tikanga will teach students that a fluid belief system lacking the certainty and consistency required by the rule of law should nevertheless be treated as law.
Judd’s call for caution has surprising allies – even if they don’t agree with his views. Professor Jane Kelsey suggests implementing compulsory tikanga study may be “rushing it” as “the complexities and nuances of tikanga and how it relates to Te Tiriti and to common law, is not quite there.”
The Law Commission’s 2023 report on tikanga also emphasises “the need for caution when the common law is engaging with tikanga.” The Commission warns, “Where there is a public policy context, the courts may sometimes be ill-equipped to weigh the considerations involved.”
The Supreme Court should feel chastened by aspects of the Commission’s views. Despite the government asking the Law Commission in 2021 to advise Parliament on the proper place of tikanga in the law, the Supreme Court decided it knew better. In an area fraught with constitutional complexity, it barged in. The compulsory tikanga controversy is just one of the consequences.
Parliament has the means to restrain the Supreme Court’s activist tendencies, including legislating to reverse the Court’s more aberrant decisions. However Parliament does this, the sooner it reins in a wayward Supreme Court, the better.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was first published HERE
Despite the case having no Māori connection, the Supreme Court relied on tikanga in allowing Peter Ellis’s appeal against his convictions to continue despite his death. Three justices went further, indicating that any issue of law before the courts may need to be addressed in the light of tikanga.
The transformation Ellis represents is hard to overstate. Before Ellis, the courts accepted that tikanga-based custom could be recognised by the common law. But the courts did not recognise tikanga as a standalone legal framework. Ellis changed that at a stroke, elevating tikanga as “the first law of Aotearoa.”
Little wonder the Council now says law students must study tikanga.
What then of Judd’s complaints? Judd argues that compelling the study of tikanga will teach students that a fluid belief system lacking the certainty and consistency required by the rule of law should nevertheless be treated as law.
Judd’s call for caution has surprising allies – even if they don’t agree with his views. Professor Jane Kelsey suggests implementing compulsory tikanga study may be “rushing it” as “the complexities and nuances of tikanga and how it relates to Te Tiriti and to common law, is not quite there.”
The Law Commission’s 2023 report on tikanga also emphasises “the need for caution when the common law is engaging with tikanga.” The Commission warns, “Where there is a public policy context, the courts may sometimes be ill-equipped to weigh the considerations involved.”
The Supreme Court should feel chastened by aspects of the Commission’s views. Despite the government asking the Law Commission in 2021 to advise Parliament on the proper place of tikanga in the law, the Supreme Court decided it knew better. In an area fraught with constitutional complexity, it barged in. The compulsory tikanga controversy is just one of the consequences.
Parliament has the means to restrain the Supreme Court’s activist tendencies, including legislating to reverse the Court’s more aberrant decisions. However Parliament does this, the sooner it reins in a wayward Supreme Court, the better.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was first published HERE
6 comments:
Exactly.
You have to wonder who is in charge of running New Zealand at present. Is it Parliament with its democratically elected representatives? Or is it the unelected judges of the NZSC, the unelected members of the Waitangi Tribunal and so on?
LFC
So in other words maori criminals will not be able to be convicted. That's what it really boils down to with the word " tikunga." Nz, if that is what it is still called, will be a very violent country.
Whilst incorporation of tikanga into law is ludicrous I have heard it argued on RNZ that because tikanga is referred to in some employment pacts then lawyers should know something about. But they handle many topics about which they personally know little or nothing. With tikanga not documented the paid specialists acting as expert witness, and "challeged" only by others of the same cosy paid club, will in effect determine law.
Any employer who references tikanga in a contract would be nuts. Would it embrace the traditional m.d.o?
OK, so even though I'm not a Maori (neither was Ellis), I can now plead the follow case under Tikanga's "utu": Your 16 son gets drunk, goes for a drive and causes a head-on collision with my pregnant wife, killing her and the unborn child. He survives. I seek out the kid and kill him in retribution to "balance" my family's diminished mana. (Under utu I may decide to kill you as well since your family bears responsibility for actions of its members). At the trial, I plead not guilty and reference the Ellis case. Do I get off?
No you don't because Tikanga only applies to maori, you could swing something though if you paid a large Koha
I am in no way a supporter or admirer of all Maori cultural concepts. I could see that a form of natural justice was possible (necessary, maybe) in the Ellis case only because of its uniqueness in that it was so close to the point of actually being heard. A precedent of sorts had to be set I suppose but the issue certainly did not have to travel under the cloak of Maori tikanga – whatever that may be.
Did the backroom opportunists and activists fasten onto mythical Maori tikanga only so as to drive another wedge into the justice system?
We may be in danger of sacrificing too much of our Westernised law and culture to the whims of misty-eyed dreamers. The Law Commission needs to return to the issue and recommend a set of more precise conditions. Without any references whatever to Maori myth.
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