TO: Hon. Chris Bishop, Prime Minister Luxon, and Ministers,
Further to my earlier submission , I wish to restate the constitutional position with clarity and precision.
When Māori chiefs willingly, voluntarily, and without coercion signed the Treaty of Waitangi in 1840, they “ceded FOREVER the ENTIRE SOVEREIGNTY of their country” to the British Crown. In return, they were granted “the rights and privileges of British subjects”, which necessarily placed all inhabitants of New Zealand under British law, which became the law of New Zealand.
This arrangement leaves no constitutional space for a parallel or competing legal system unless expressly created by Parliament. Parliament has never enacted tikanga as law. Therefore, tikanga cannot have legal force within New Zealand’s constitutional order.
1. Tikanga Cannot Operate as Law Under the Treaty Framework
The Treaty’s cession of sovereignty and the extension of British subject rights established a single, unified legal system. Tikanga, whatever its cultural significance, is:
2. Judicial Elevation of Tikanga Is Constitutionally Improper and Ultra Vires
The recent judicial trend of treating tikanga as if it were a source of binding law is not merely an interpretive overreach — it is an exercise of public power without lawful authority.
Under New Zealand’s constitutional framework, all public power must be authorized by statute or recognized prerogative. There is no statutory or prerogative authority permitting courts to elevate tikanga to the status of law.
Accordingly, such judicial actions are ultra vires — beyond jurisdiction, beyond power, and beyond constitutional limits.
Automatic Constitutional Consequences of Ultra Vires Judicial Action
When a court acts without lawful authority:
3. Structural Bias in Cases Involving Māori and Non‑Māori Parties
The constitutional concern becomes even more acute in cases where one party is Māori and the other is not. The judicial importation of tikanga into legal reasoning creates an inherent risk of structural bias, because:
Equal citizenship requires that all litigants be judged under the same law.
Tikanga‑based reasoning violates that principle.
4. Judicial Accountability and Constitutional Safeguards
Judicial immunity protects individual judges from personal liability for decisions made in their judicial capacity. However, this does not mean that ultra vires judicial conduct is without consequence.
5. The Attorney‑General’s Constitutional Duty
As Attorney‑General, you have a constitutional obligation to uphold the rule of law and protect the lawful boundaries of judicial power. I therefore respectfully request that you:
1. Tikanga Cannot Operate as Law Under the Treaty Framework
The Treaty’s cession of sovereignty and the extension of British subject rights established a single, unified legal system. Tikanga, whatever its cultural significance, is:
- not codified
- not stable or consistent across iwi
- not democratically accountable
- not enacted by Parliament
- not capable of meeting the requirements of legal certainty
2. Judicial Elevation of Tikanga Is Constitutionally Improper and Ultra Vires
The recent judicial trend of treating tikanga as if it were a source of binding law is not merely an interpretive overreach — it is an exercise of public power without lawful authority.
Under New Zealand’s constitutional framework, all public power must be authorized by statute or recognized prerogative. There is no statutory or prerogative authority permitting courts to elevate tikanga to the status of law.
Accordingly, such judicial actions are ultra vires — beyond jurisdiction, beyond power, and beyond constitutional limits.
Automatic Constitutional Consequences of Ultra Vires Judicial Action
When a court acts without lawful authority:
- its reasoning has no constitutional validity
- its conclusions are void for want of jurisdiction
- any alteration of rights or duties is legally ineffective
- it breaches the separation of powers
- it undermines parliamentary sovereignty
- it destabilizes the rule of law and legal certainty
3. Structural Bias in Cases Involving Māori and Non‑Māori Parties
The constitutional concern becomes even more acute in cases where one party is Māori and the other is not. The judicial importation of tikanga into legal reasoning creates an inherent risk of structural bias, because:
- tikanga is a normative system belonging to one group
- the opposing party does not share or consent to that system
- Parliament has never enacted tikanga as law
- the court is effectively applying a culturally‑specific framework to only one side
Equal citizenship requires that all litigants be judged under the same law.
Tikanga‑based reasoning violates that principle.
4. Judicial Accountability and Constitutional Safeguards
Judicial immunity protects individual judges from personal liability for decisions made in their judicial capacity. However, this does not mean that ultra vires judicial conduct is without consequence.
- The decisions themselves can be declared invalid.
- Parliament may legislate to correct or reverse ultra vires reasoning.
- Persistent disregard for statutory limits may constitute judicial misconduct.
- Under the Constitution Act 1986, Parliament may remove a judge for misconduct or incapacity.
- Lawyers who misstate the law or promote unauthorized legal theories may be disciplined by the Law Society.
5. The Attorney‑General’s Constitutional Duty
As Attorney‑General, you have a constitutional obligation to uphold the rule of law and protect the lawful boundaries of judicial power. I therefore respectfully request that you:
1. Publicly reaffirm that only Parliament can make law in New Zealand.
2. Clarify that tikanga is not a structured legal system and has no inherent legal standing.
3. Issue guidance to government agencies and Crown prosecutors preventing the unauthorized use of tikanga as law.
4 Support legislation restoring constitutional certainty and preventing judicial overreach —- if not ‘activism’.
New Zealanders expect — and deserve — one law for all, made by elected representatives, NOT created through judicial discretion.
Swift action is required to protect the constitutional order and uphold the democratic foundations of our nation.
Sincerely,
Hugh Perrett
Hugh Perrett, a member of the New Zealand Business Hall of Fame, is the former managing director of Foodstuffs and founder of the Pak n' Save discount grocery chain.
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