The Tikanga Challenge for Law Schools, the Rule of Law – and Parliament

Roger Partridge
Insights Newsletter
17 May, 2024

Barrister Gary Judd KC’s complaint to the Regulatory Review Committee has sparked a fierce debate about the place of tikanga Māori – or Māori customs, values and spiritual beliefs – in the law.

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.

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