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

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.



Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team.

2,841 views118 comments

118 comentários


As a nation, we are clearly in deep…ah…trouble.

A lack of unity in the centre-right allows the vehement left to slowly but surely gain more sympathetic ears.

BFD, Kiwiblog, B,B&H, RCR, The Platform, National Party, Act Party, NZ First, Muriel Newman, Leighton Smith etc etc. There is no glue between us and until there is, we will continue to lose the high ground to those that actually detest us.


Curtir
Respondendo a

The National Party are part of the establishment and they have been captured.

Curtir

Does anyone really think that the Maori juggernaut will ever be stopped. " NO WAY" that will happen,imagine trying to take back or stop the savages special privileges and the constant flow of billions of tax payers money to the savage elite .We are kidding ourselves if we think that will happen.We will just have to take it now because we didn't act sooner.As Willie Jackson said when asked about He Pua Pua " Don't worry whitey it won't hurt that much,not to much anyway.So when the savage elite can talk openly like that ITS TO LATE imagine if a European poly said that referring to the savages.Good luck New Zealand the very name of our country is being chan…

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winder44
winder44
19 de mai.
Respondendo a

Of course, it with lead to civil unrest, uprising of the affected majority, and possibly civil war.

Right now the silent majority is in the "I'm all right Jack" mode, but that could change very, very, quickly when they find their rights being curtailed.

And that uprising will be very large, quick, and decisive.

Curtir

Imagine the Iwi Elitists outrage and media response if Judd had written those identical words about Quince……?

……Different rules for discrimination and racist abuse!!

TRIBAL IWI ELITE ARE THE MOST BLATANTLY RACIST PEOPLE IN NZ!

It’s time to verbalise Tribal Iwi Elites true description of what they really are!! Wake up NZ and use your voice. Be fearless of the tribal bullies

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janz
janz
18 de mai.

Why are those running the country, pussy footing around this rubbish ? This is nothing more than folk lore, myth, and other shit dreamt up as they go along, for the sole purpose of gaining a little bit more undemocratic control , and at the same time giving the filthy colonisers another slap in the face. There is nothing in the treaty that gives this crap any kind of legal standing. Someone needs to grow some and send this fairy tale stuff back to the marae where it belongs.

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Tiglath Pileser
Tiglath Pileser
19 de mai.
Respondendo a

why..... why.....WHY????? They're all bl**dy SCARED !!! Right up to SC & Cabinet.. blood on their hands before long

Curtir

The tangata Māori chiefs agreed, on behalf of their people to become British Subjects with the same rights as the people of England in the Treaty of Waitangi, so why are we arguing about this now, it was all sorted in 1840. If the judges cannot understand this, then I suggest they read the documents held in the New Zealand, Australian and American Archives, plus the British Parliamentary Papers. It's all there in English! 

"If you think this is wrong, then blame your ancestors who gave away their rights when they were strong". Sir Apirana Ngata.

Curtir
Respondendo a

Great!

Curtir
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