Gary Judd KC: Tikanga Regulations advance a political agenda

In doing so they confer moral legitimacy on the illegitimate

The New Zealand Council of Legal Education has promulgated regulations making tikanga Māori a compulsory subject for law students and requiring tikanga to be infused into all the other compulsory subjects (contracts, tort, crimes, etc.) I made a complaint to Parliament’s Regulation Review Committee. I have asked that a resolution be moved that the House of Representatives disallow the regulations. The Committee is considering my complaint. It asked for submissions from the NZCLE and the New Zealand Law Society. On 3 June, I lodged a supplementary submission to the Committee. This is what it said.

Professional Law Examination Tikanga Māori Requirements Amendment Regulations 2022 (“Tikanga Regulations”)

Advancement of a political agenda and creation of moral legitimacy

In the last week or so we have seen a vile expletive-ridden video, appearing to call for revolution, from a person who is the daughter of the president of a political party and the wife of one of its leaders, whilst the husband makes similarly inflammatory statements inside and outside the House. That was a catalyst for this supplementary submission.

Such activities have not occurred in a vacuum. As I show below, the Tikanga Regulations contribute to the establishment of a moral framework within which the sovereignty of Parliament may be challenged, part of a strategy to confer moral legitimacy on a political objective its proponents call “decolonisation”. Stripped of moral overtones, “decolonisation” means substituting non-democratic tribally based government.

I show below how the regulations are part of the advancement of a political agenda. Making regulations for political purposes is certainly an unusual or unexpected use of the powers conferred by the Lawyers and Conveyancers Act 2006. Advancement of political agendas and conferring moral legitimacy on political agendas also forms no part of the general objectives and intentions of the 2006 Act. When seen in that way my complaint also relates to SO 327(2)(a).

Framework and context

In 2021 (at about the same time that NZCLE was commencing its preparation for making tikanga compulsory for law students), Supreme Court Justice Glazebrook gave a speech about the rule of law in which she said (page 22), “The indigenising of legal education in our universities will have a major part to play in decolonization,” citing fellow Supreme Court Justice Joe Williams’ lecture, “Decolonising the law in Aotearoa: Can we start with the law schools?” (Footnote 130.)

Justice Glazebrook is a devotee of decolonisation. In her speech she said, “I would suggest that, until we complete the process of decolonisation, the rule of law can only be considered a work in progress. The new place of the Treaty and tikanga in the law is a start. There are of course other initiatives underway, including within and outside the courts, but these are beyond the scope of this paper” (pages 22-23). Footnote 135 to the published speech cites an article claiming that “at a fundamental level, decolonisation involves the taking back by indigenous people of power and control.” I have commented on the speech in more detail in The Humpty Dumpty approach to the rule of law.

Taking power and control from where it currently resides (in the people through democratically established institutions) is a direct affront to parliamentary sovereignty to which New Zealand is committed (Senior Courts Act 2016, s 3(2)) and to democracy.

Statements such as Justice Glazebrook’s clothe with legitimacy actions to take power and control away from our democratically elected parliament and our democratically constituted government and to put it somewhere else. She makes it clear that tikanga in the law “is a part” of doing so.

Judges who speak extra-judicially in this way, and in their judicial capacities act to make new law advancing the purposes they espouse, create moral legitimacy for the positions they take. So also do institutions like the NZCLE when they act in support. In so doing, they assist to establish a climate within which disorderly and potentially anarchic activities may flourish.

Very likely what I referred to at the beginning would have happened anyway — who can tell — but people like our judges, and institutions like the NZCLE, who have been privileged with the power to dictate and influence behaviour ought not to act in ways which may be taken to confer moral legitimacy on activities which strike at the heart of a free and democratic society.

The extra-judicial writings of Justices Glazebrook and Williams directly link the insertion of tikanga into the law with “decolonisation”. Their judicial activities, discussed in my complaint, advance that political agenda. Making tikanga compulsory for law students, perhaps one of the “other initiatives underway,” assists to advance it.

“The indigenising of legal education in our universities” and “Decolonising the law” are not legal objectives. They are political objectives.

Parliament must not be seen to be endorsing compulsory tikanga

Since my complaint was published by LawNews, I have received communications from some law students. I found that some of the law schools, possibly all, are already doing what the regulations compel. One told me, “We are taught there are three Law systems of New Zealand. The first Law was Tikanga, the second Law is the current “Pakeha” system, and the third Law is the one that is being created with the re-introduction of Tikanga.” The student added:

In a recent workshop we had to discuss the differences between the English and Māori version of the Treaty and identify where in each article of the text the principles of partnership, co-operation etc could be found. After an in-depth discussion of the wording of the texts, we were then told the “obligation of the Crown to consult with Māori” was one of these principles. When I questioned where this could be found in the text, I was told that “at this stage we are looking ‘past’ the actual words”. Now, we can place a looking-glass over an untruth, and dress it up in a pretty dress in order to seduce, but an untruth will remain an untruth. The ‘obligation to consult’ cannot be found in the text and is therefore a lie. We students of the Law are being taught to lie.

Just after LawNews published my complaint, the Dean of a different law school displayed great erudition and showed why she should be the head of a law school and a member of the NZCLE, when she said:

I suppose it was inevitable that one of the old racist dinosaurs would make a pathetic squeal in an attempt to preserve the status quo….

Mr Judd and his “matauranga Maori is not science” friends can go die quietly in the corner…

The Deans of the law schools are members of the NZCLE, ex officio.

My complaint cannot do anything about the activities of law schools or of those in positions of authority, but a resolution — carried by the House — to disallow the tikanga regulations could be the commencement of a wider campaign to demonstrate that we are one people with one democratically elected parliament and that efforts to undermine our free and democratic society are not morally legitimate but an affront to the values New Zealand seeks to uphold.

Disallowing the regulations is critical because the regulations, although not made by Parliament, are made with the authority of Parliament. As NZCLE is acting with parliamentary authority, Parliament will be seen to be endorsing them, unless they are disallowed.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.