Gary Judd KC: Regulation Review Committee's tikanga decision

The Committee probably went as far as it could

What the Committee did

The Regulation Review Committee decided (1) that making tikanga a compulsory subject for law students did not unduly trespass on personal rights and liberties, but (2) requiring tikanga to be incorporated in the other compulsory subjects was an unusual or unexpected use of the powers conferred on the New Zealand Council of Legal Education.

The Committee had three National Party members and two Labour Party members. Decision (1) was unanimous. Decision (2) was the decision of the National Party majority, with the Labour members opposed.

A decision by the Regulation Review Committee does not of itself do anything; it must be implemented by a resolution of the House following the moving of a motion by a member of the Committee. I hope that when the Committee reports to the House, probably next sitting day which is Tuesday, a member of the Committee will move a motion proposing that the regulations are disallowed to the extent necessary to remove the requirement for tikanga to be incorporated in the other compulsory subjects.

Bill of rights

The Standing Order governing the Committee’s consideration of complaints such as mine sets out the grounds on which the Committee may act. The Standing Order expresses one of those grounds as unduly trespass on personal rights and liberties. Although the Standing Order does not expressly reference the New Zealand Bill of Rights Act 1990, that is the statute which affirms, protects, and promotes human rights and fundamental freedoms in New Zealand. Liberty and freedom are synonyms.

The scheme of the NZBORA is that certain rights and freedoms are affirmed. Obligations are imposed on the legislative, executive, and judicial branches of the government, and on persons or bodies performing public functions or powers conferred on that person or body by or pursuant to law. The NZCLE gains its powers from legislation and is therefore subject to the NZBORA.

The rights and freedoms affirmed by the NZBORA are not absolute. Section 5 provides that the rights and freedoms affirmed “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This place the onus for justifying a breach on the organ which is breaching the right.

Section 13 states that “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.”

I argued that compelling law students to learn tikanga infringed the right conferred by s 13. In the introduction I said

The Tikanga Regulations are symptomatic of a dangerous trend which has emerged within some sectors of New Zealand society, where those with the power to do so seek to impose the beliefs and values of one section of society upon the community as a whole. They do so in this instance by pretending that tikanga is law and therefore it is fitting to compel law students to learn about it.

Had I been preparing my complaint now, with the benefit of the year which has passed since I lodged it, I would have adopted an analytical framework which

* Demonstrated that s 13 was infringed, and

* Argued that the infringement cannot be justified as being a reasonable limit demonstrably justified in a free and democratic society (this is the context where the pretence that tikanga is law may be relevant) and

* Argued that it was not for me to show that it could not be justified, but for the NZCLE to demonstrate that it is justified.

The last point should have required the NZCLE to satisfy the Committee that tikanga is law with a status like the law of contracts, torts, crimes, et cetera, so that making it compulsory was a justified limitation on students’ rights and freedoms.

Analyzing the complaint in that way is unlikely to have made any difference because the NZCLE did rely on s 5, although it is unclear whether the Committee itself relied on it. It concluded by saying: “We do not consider that these amendment regulations trespass on the rights to freedom of thought, conscience, religion, or belief.”

Comity

The doctrine of comity embodies the convention that each branch of government will respect the other’s role within the constitutional framework.

This is particularly potent in the relationship between the executive and the legislative branches on the one hand and the judicial branch on the other.

The Executive may not trench on the judicial branch. It is in the Cabinet Manual. Standing orders of the House severely restrict MPs ability to debate matters subject to judicial decision. See SO 116.

As the Supreme Court has stated that tikanga is part of New Zealand’s law, is its “first law,” the Committee was severely constrained in its ability to deal with my claim that tikanga is not law, and did not engage with it.

The Committee’s report suggests that the majority was concerned not to breach the comity convention. It quoted the extra-judicial comments of Justices Glazebrook and Williams, noting they could do so because they were extra-judicial.

I have previously observed that these pronouncements show the justices embarking on a political crusade in favour of decolonisation. They took their personal political views through to their performance on the bench, when they declared that tikanga was part of New Zealand’s law.

I can say that’s what they did, but most Parliamentarians would consider that they cannot. I would add that the courts, especially the Supreme Court, have so egregiously exceeded their constitutional role and ignored the comity principle, that the time has come for Parliament to assert its supreme authority.

Specifically in this issue, what is required is for Parliament to grasp the nettle and to overrule the Supreme Court’s assertion that tikanga is part of New Zealand’s law. This is part of the wider issue of the Supreme Court’s autocratic approach, which has been the subject of previous criticism from Jack Hodder KC, New Zealand Initiative chairman Roger Partridge, academic Prof James Allan and me.

Parliament should not need to do this. The fault lies with the Supreme Court in assuming a power it does not have to trench upon Parliament’s exclusive authority to make law. The courts may *for the purpose of deciding a case* consider whether existing settled law may need clarification or extension, but they exceed their constitutional remit and trample the comity principle when they take it upon themselves to declare that a body of lore (not law) is part of New Zealand’s law.

Can anything be done about it?

The Committee’s report records that the Green Party did not support decision (2). It, like the Labour Party, would have dismissed the complaint entirely.

The report also records that the ACT Party, which did not have representation of the Committee, urged the Committee to make a recommendation to the House that the whole of the regulations be revoked. New Zealand First’s view is not recorded in the report, but it has been reported that “Deputy Prime Minister Winston Peters supported Judd’s complaint and said teaching tikanga was “cultural indoctrination”.”

I applaud the Committee for deciding that the regulation ought not to have required tikanga to be included in other compulsory subjects. When I first read the report, I was disappointed that law students would be compelled to be educated in tikanga. I still am, but I understand how constrained the Committee was by the comity principle.

The Committee’s finding that requiring tikanga to be included in the other compulsory subjects was an unusual or unexpected use of the NZCLE’s regulation making power is a principled rebuff to the NZCLE which does not offend the comity principle. The Committee probably went as far as it could. We should be grateful to the members of the majority for doing so.

In the Schedule to this post, I refer to a decision of the Ontario Court of Appeal which shows a proper approach to attempts to interfere with the thoughts, conscience, religion and beliefs of others. Applying that approach there can be no doubt that s 13 is infringed.

As I say, Parliament should declare that tikanga is not part of New Zealand’s law. It should then revoke the regulation in its entirety. Will it do so? Probably not, but the report’s finding that incorporation of tikanga in the other subjects was an unusual or unexpected use of the NZCLE’s powers implies that the standalone tikanga course is in the same category. It is saved by the Supreme Court’s declaration that tikanga is part of New Zealand’s law and the comity principle.

People who are concerned about the abuse of the human right involved can continue to advance the cause of freedom from interference with matters of conscience. The Committee’s primary reason for thinking that s 13 is not engaged is that it “does not mean that they must then practise tikanga in their personal lives or agree with all concepts in te ao Māori.”

Freedom of conscience and belief is not something which one may have just in one’s personal life outside areas where we interact with members of the community. Its meaning is real only when we are interacting with members of the community. Although not necessarily the most important right or freedom (the ones which protect life and liberty are more important), it is nevertheless the most fundamental which should never be compromised.

Schedule

In Freitag v. Penetanguishene, (1999) 125 O.A.C. 139, the Ontario Court of Appeal, dealt with a claim of contravention of s 2(a) of the Canadian Charter of Rights and Freedoms, which provides that “Everyone has the following fundamental freedoms: (a) Freedom of conscience and religion…

A Town Council and its Mayor had the practice of commencing meetings by asking councillors to rise and recite the Lord’s Prayer. The issue was whether that infringed the appellant’s Charter right to freedom of conscience and religion.

In paragraph [19], the Court of Appeal approved this statement:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of 'the tyranny of the majority.

It is usually the majoritarian group which attempts to impose its views on others. But the principle applies equally where there is an attempt to impose a minority’s views on what may be a majority.

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.