Submission to the Regulations Review Committee
Dated: 21 June 2024
To: Regulations Review Committee
Email: regulations.review@parliament.govt.nz
From: the Asian Legal Network
Email: contact@asianlegalnetwork.org.nz
Introduction
The Asian Legal Network (“ALN”) is a research and advocacy group. Our membership is composed of Asian peoples with a background in law who, as Tangata Tiriti, are committed to navigating Asian identities and furthering justice for Asian communities in Aotearoa.
The ALN would like to thank the Regulations Review Committee (RRC) for the opportunity to submit on the matters raised by Mr Judd KC in his complaint about the Professional Examinations in Law (Tikanga Māori Requirements) Amendment Regulations 2022 (the Tikanga Regulations).
The ALN firmly supports NZCLE’s decision to include tikanga Māori in legal education, which was made after extensive consultation with law schools, the judiciary and the legal profession. We agree with NZCLE that “[t]ikanga is an essential part of legal education given frequent references to tikanga in Acts of Parliament and its acknowledgement by the Supreme Court as part of the law of New Zealand.”
In summary our submissions are that:
a) The Tikanga Regulations are responding to the current legal landscape whereas Mr Judd KC’s complaint is largely a criticism against judicial decisions and the judiciary itself, which is better litigated in court or other legal forums. We are concerned that upholding such a complaint indirectly criticises the judiciary and risks infringing on the principle of comity.
b) Mr Judd KC’s complaints make various unfounded assertions, such as on how tikanga will be taught. We submit that the courts have recognised that tikanga is the first law ofAotearoa and these regulations should be understood in the context of Te Tiriti o Waitangi. Most importantly, these regulations are important for legal education and future lawyers navigating the interplay between tikanga Māori and state law.
c) The Tikanga Regulations remain in line with the purpose of the Lawyers and Conveyancers Act 2006.
Concerns on comity
Our view is that the CLE’s Tikanga Regulations are simply an appropriate response to a legal landscape that is increasingly recognising tikanga as a source of law in New Zealand. Mr Judd KC’s complaint is misplaced. The crux of his complaint is a criticism of the substantive merits of the judiciary’s increasing recognition of tikanga and an overreach of the judiciary. Rather than address these concerns through the appropriate forums, Mr Judd KC has packaged these criticisms in a complaint against regulation on legal education. Upholding this complaint through a legislative mechanism would indirectly be a criticism of the judiciary. If the Committee were to uphold Mr Judd KC’s complaint and strike down the Tikanga Regulation, the effect would be to disapprove of both the Court’s judicial reasoning and the judiciary. We believe this would breach the constitutional principle of comity.
Our Attorney-General, Hon Judith Collins KC, recently made the following observation about comity: [1]
Boundaries are maintained, and our system of government strengthened, by our constitutional actors respecting the roles each other play. This includes giving each other appropriate “constitutional room” within which to play our respective roles. Such a system can only work effectively if the constitutional actors have a shared institutional morality. This shared morality is encapsulated in the concept of comity.
...
We all need to respect the roles each branch plays even when – in fact especially when – it is inconvenient to do so.
Comity also exists between the legislative and judicial branches. We submit that that comity requires individual Members of Parliament to respect the integrity of the judiciary and their decisions. [2] The appropriate avenue for democratic input on the law and developments in law is through the legislative branch’s law-making function. Challenging the integrity of the judiciary is provided for only through constitutional instruments such as the Senior Courts Act 2016. [3]
Much of Mr Judd’s complaint centres on attacking judicial reasoning that recognises tikanga as law, particularly the Supreme Court in Ellis v R. [4] His complaint begins with the extraordinary claim that the Tikanga Regulations are: [5]
... 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...
He then states that “[j]udgments elevating tikanga to the status of law bear the mark of the naked policy preferences of individual judges”. [6] He takes specific aim at the Supreme Court in relation to Ellis, stating that “[t]he majority of the Supreme Court did not even attempt to undertake the exercise [of explaining what law is and why tikanga is within that description]. Had they attempted to do so, they would have failed”. [7] He also implies that Glazebrook J, in her decision in Ellis, stepped beyond Her Honour’s function as a judge, and, impliedly, beyond Her Honour’s judicial oath. [8]
We also understand that Mr Judd KC made a supplementary submission on 3 June, whereby he says that the Tikanga Regulations are part of an advancement of a political agenda of decolonisation and refers to extra-judicial writings of Glazebrook and Williams JJ. [9] On his public blog, Mr Judd KC, states more overtly that: [10]
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.
Mr Judd has also made public statements in relation to this complaint, which have been based on a criticism of the judiciary. When interviewed in March, he discussed the Ellis case, noting that a judge “declared that tikanga was the first law of New Zealand”. The host interjects, “well that’s poppycock, Gary”, to which Mr Judd responds, “I agree with you”. [11]
We submit that these statements display contempt for the Supreme Court and that the public perception of this complaint is a criticism of the judiciary. Crucially, Mr Judd KC disagrees with the substance of the judicial decision, namely whether tikanga is law. These may be Mr Judd KC’s personal views, which he is entitled to express. But these views should not then form the basis of a complaint to a select committee that is not overseeing the substantive legal issue nor reviewing the conduct of the judiciary.
However, if a committee member were to move a motion on the basis of Mr Judd KC’s complaint, they would effectively be accepting the basis of the complaint, namely Mr Judd KC’s criticism of the judiciary. We submit that this infringes on the constitutional principle of comity. If an MP were to express Mr Judd KC’s views, this would be inappropriate and infringe comity. Endorsement of such views, even indirectly, would also undermine the “constitutional relationship of mutual respect that exists between the legislative and judicial branches of government”. [12] Upholding this complaint may also set a dangerous precedent whereby thinly veiled complaints can thwart the intent of Parliamentary processes.
Mr Judd KC’s views amount to litigating whether tikanga is law and his disagreements with various judicial decisions. The appropriate forums for these are at wānanga with tikanga experts, in academic journals, presentations at legal conferences, and in public discussion in the media.
Unfounded assertions in complaint
How tikanga might be taught
Mr Judd also conflates the Statement of Tikanga (which was drafted in reference to the Peter Ellis case) and what the Tikanga Regulations seek to do. He selectively quotes sections of that Statement, and asserts that those sections are what law students would be compelled to learn. [13] However, there is an absence of any meaningful analysis of tikanga in relation to the various compulsory areas of law, and the developments and consultations undertaken across the profession to date. Mr Judd simply asserts that “tikanga is completely different”. Even if that were the case, legislation and court decisions have made tikanga relevant to legal education.
Tikanga as law
Reiterating the above, we submit that the discussion as to whether tikanga is law is not relevant to this complaint. This issue is whether tikanga Māori should be included in legal education, and our position is that, to the extent that legislation and the Supreme Court engage with tikanga Māori, its inclusion is necessary and beneficial.
Notwithstanding this, our position is that tikanga is the first law of Aotearoa. Tikanga existed long before the arrival of tauiwi, and will continue to exist long after the departure of tauiwi. We view tikanga as a system (or systems) already existing in its own right, one that already has power in regulating the behaviour of Māori and tauiwi alike. [14] For instance, when a rāhui is placed over a body of water it is for practical or protection purposes, such as the rāhui following the Whakaari White Island eruptions. [15] We, as a community, understand and adhere to rāhui, even without the sanction of state law. Far from Mr Judd KC’s assertion that tikanga reflects only a particular state or community, we are observing many communities adhering to tikanga Māori. We believe that teaching tikanga in law school merely reflects the reality that tikanga operates as a living, breathing, functional system (or systems) of law that is interacting with the state legal system.
It is crucial that tikanga is woven into the fabric of legal education in Aotearoa. This ensures that legal practitioners are provided insight into the realm of tikanga and Te Ao Māori more generally, and in doing so, promotes a pluralistic perspective of the law. In our view, legal plurality produces more just and equitable outcomes for tangata whenua and tauiwi by fostering a holistic mode of legal thinking.
We also believe humility is necessary when navigating tikanga. While many of us may have little to no experience in tikanga Māori, we owe it to the reputation of the profession that we seek out accurate information and those with the expertise. This is standard practice when engaging with developing areas of law or the interaction of different legal systems. It is no different in the case of the interplay between tikanga and state law.
To this end, there is ample research and analysis undertaken by those with expertise in this area, including by pūkenga such as those who authored the Statement on Tikanga in the Ellis decision, [16] tertiary institutions, [17] research by Te Aka Matua o Te Ture | Law Commission, [18] and comparative analysis with other jurisdictions. [19] To better understand tikanga Māori and its interplay with state law, the legal profession must turn to these experts. We respectfully submit that the complainant has not meaningfully engaged with this large body of research nor consulted the appropriate expertise.
Tikanga is valuable, especially for lawyers. Not only does it expand the set of legal tools that lawyers can draw on to assist people to resolve legal issues, it prompts us to think more critically about the interaction between different legal systems and consequently, deepens our understanding of state law.
Tikanga and Te Tiriti
Te Tiriti o Waitangi did not change the fact that there were legal systems in operation in Aotearoa before 1840. Te Tiriti provided a blueprint of our (tauiwi) living here and in belonging to Aotearoa. As the Waitangi Tribunal concluded in its Report on Stage 1 of the Te Paparahi o Te Raki Inquiry: [20]
...in February 1840 the rangatira who signed te Tiriti did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories. Rather, they agreed to share power and authority with the Governor. They agreed to a relationship: one in which they and Hobson were to be equal – equal while having different roles and different spheres of influence.
Tikanga and Māori customary laws are also a taonga under article 2, obliging the Crown to protect them in good faith. [21]
We strongly believe that the legal profession has a role in navigating this constitutional relationship and the interplay of these legal systems: the interplay between tikanga and state law. Upskilling our law students is an important step to this.
We recognise that incorporating tikanga into our legal education is a stepping stone. We acknowledge the inherent risks of misappropriation, misapplication and misinterpretation but refer to the recommendations of Hinemoana Markham-Nicklin and Toni Wharehoka’s article “Legal education – reflecting on a bi-jural, bilingual and bicultural law degree” when integrating tikanga into our legal education. [22]
Lastly, we believe that Asian communities gain belonging and an understanding of place in Aotearoa when we know our relationship to the land, the indigenous legal systems that are of the land, and the Tiriti-relationship that enabled us to come here. From our members’ experiences, racism and systemic exclusion such as the Immigration Restriction Amendment Act 1920 and the Poll Tax, have challenged our sense of place and belonging to Aotearoa. The Tiriti relationship gives us a sense of place which is not based on assimilation.
In terms of legal education, many Asian peoples have homelands that have been affected by waves of colonisation. The idea that there are legal systems from and on our homelands that existed before colonial systems were imposed is not a new concept. Legal pluralism is often the norm. Recognising this legal pluralism through a Tiriti framework is an important aspiration that is in the interests of Asian communities, as we gain belonging and sense of place in Aotearoa.
No grounds for complaint
Mr Judd KC’s complaints are based on Standing Orders 327 (a), (b) and (c). We submit that none of these grounds have been made out.
These regulations are in line with the “general objects and intentions” of the Lawyers and Conveyancers Act 2006, namely the Act’s purpose. By ensuring our future lawyers are aware and capable of engaging with these ongoing developments of law, particularly tikanga Māori, this protects consumers of legal services, and ensures a “more responsive regulatory regime in relation to lawyers”. [23] The fact Mr Judd KC goes at length to criticise a judgment from the Supreme Court highlights that the matter is a real, ongoing legal issue of the highest judicial importance, which law students should engage with in their legal education. Many other areas of law also interface with tikanga - as shown by recent decisions of the Employment Court - [24] and was thoroughly canvassed by Te Aka Matua o te Ture | Law Commission in its research paper He Poutama. [25] By learning about these developments, this gives future lawyers a practical base knowledge.
Rights and liberties are not undermined. It is unclear how this is the case. Individuals exercise a choice whether to undertake a law degree, with the prospect of joining the legal profession. This requires a legal education that is in step with the current development of the law, in order to uphold basic duties of a barrister and solicitor of the High Court. At present, tikanga Māori is - and we contend, always has been - a necessary facet of practising in Aotearoa. To the extent that any New Zealand Bill of Rights 1990 issues are raised, namely s 13, we submit that there are demonstrably justifiable limits, under s 5, in this context where the New Zealand Council of Legal Education is empowered under the Lawyers and Conveyancers Act to set requirements of those who wish to be admitted as lawyers to undertake and study various aspects of the law.
Lastly, and in light of the above, these regulations are not unusual or unexpected, but are part and parcel of ensuring our legal education is fit for purpose.
Opportunity to address the Committee
We thank the Committee and staff for this opportunity to make this submission.
If we can be of further assistance to make oral submissions, we are happy to do so if requested.
FootnotesHon Judith Collins KC “Speech to the Law Association” (13 June 2024).This is a long standing tradition. See, for instance, Attorney-General Margaret Wilson Criticising the Judiciary (Beehive Press Release, 12 September 2003).Senior Courts Act 2016, s 134.Ellis v R [2022] NZSC 114.Mr Judd KC’s Complaint at 1.Mr Judd KC’s Complaint at 2.Mr Judd KC’s Complaint at 3.Mr Judd KC’s Complaint at 5.New Zealand Council of Legal Education Submission (11 June 2024) at [50]. While Mr Judd KC’s specific claim here relates to a political purpose being an usual or unexpected use of power conferred under the Lawyers and Conveyancers Act 2006, in breach of Standing Order 327(2)(c), we submit it is a concerning trend to reference the extra-judicial writings of sitting Supreme Court justices to support this point, in light of all other statements in his complaint.10 Gary Judd “Tikanga Regulations advance a political agenda” (14 June 2024) <www.garyjuddkc.substack.com>.Interview on The Conversation “Gary Judd KC on New Tikanga Māori Requirements for Law Students” (14 March 2024).Standing Orders 116(3)(b).Mr Judd KC’s Complaint at 4.Natalie Coates "How can we protect the integrity of tikanga in the lex Aotearoa endeavour? Inaugural Downie Stewart Law and Society lecture 2022" (2022) 17 Otago LR 223.Māmari Stephens “Rāhui, mana, and Peter Ellis” (26 July 2020).Ellis v R [2022] NZSC 114. The Statement of Tikanga was authored by Tā Hirini Moko Mead and Tā Pou Temara, both pre-eminent scholars in tikanga Māori who have written extensively. See also Hirini Moko Mead Tikanga Māori: Living by Māori Values (2016, Huia Publishers, Wellington).See for instance Ngā Pae o te Māramatanga’s project Inspiring National Indigenous Legal Education for Aotearoa New Zealand's Bachelor of Laws Degree, supported by all six law schools. See other research from Te Awanuiārangi, Te Wānanga o Raukawa, Te Herenga Waka | Victoria University of Wellington, Waipapa Taumata Rau | University of Auckland and Ōtākou Whakaihu Waka | University of Otago. See also research by Ani Mikaere, Dr Carwyn Jones, Professor Jacinta Ruru, and Dr Moana Jackson.Te Aka Matua o te Ture | the Law Commission He Poutama (Pūrongo Rangahau | Study Paper 24, September 2023).See, for instance, research by Professor Val Napoleon and Professor John Borrows on the Canadian Jurisdiction.Waitangi Tribunal Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at xxii.Natalie Coates “The Recognition of Tikanga in the Common Law of New Zealand” [2015] NZ Law Review 1 at 39-40, citing the Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 3 where the Tribunal stated: “In our view, the Crown’s guarantee of te tino rangatiratanga is meaningless if the tikanga that sustain and regulate the rangatira and hisrelationship to the people, and the land, are discounted and undermined. Indeed, we go further. We say that in order to properly fulfil the role of Treaty partner, and actively protect the cultural foundation of what it is to be Māori, the Crown must itself be schooled in the essentials of tikanga.”Hinemoana Markham-Nicklin and Toni Wharehoka, “Legal education – reflecting on a bijural, bilingual and bicultural law degree” [2021] 7 Māori Law Review.Lawyers and Conveyancers Act 2006, ss 3(1)(b) and (2)(b).See GF v Comptroller of the New Zealand Customs Services [2023] NZEmpC 101 and Pact Group v Robinson [2023] NZEmpC 173.Te Aka Matua o te Ture | Law Commission He Poutama (Pūrongo Rangahau | Study Paper 24, September 2023).
Download the full submission here.