The Complaint

A debate about Tikanga and the Law

This is an extended version - a Director’s Cut if you will - of an article that I wrote and which has been published in Law News for 10 May 2024. The introduction makes it clear what prompted it but I was interested in tracing the legal and procedural steps that were applicable to the complaint that Mr. Judd KC made. I have also gone into some detail about the complaint and the backlash in an effort to bring the contending points of view together - something that mainstream media with space constraints is unable to do.

Introduction

Law News Issue 14 for 3 May 2024 published an article by Gary Judd KC. It was an edited version of a complaint to Parliament’s Regulations Review Committee. The complaint is about a regulation making the study of tikanga Maori compulsory for law students.

In this article I shall set out the legal context and trace the legal foundation for making a complaint through the labyrinth of legislative instruments and the powers that the New Zealand Council of Legal Education has to make rules that have legal effect. This involves some rather complicated concepts so I hope to try and explain them clearly.

I shall then consider the complaint that Mr Judd KC has made and which has been published not only in Law News but on Mr. Judd’s Substack “Thoughts from the North.”

I shall then discuss some of the backlash that has occurred and some of the comment that Mr. Judd’s complaint and article have attracted and in the interests of fairness and completeness I shall consider Mr. Judd’s response.

The Legal Context

Legal education is overseen by the New Zealand Council of Legal Education. It has been around for some time but its powers and functions are set out in Part 8 of the Lawyers and Conveyancers Act 2006.

Among its functions is setting the qualification and educational requirements for candidates for admissions as barristers and solicitors of the High Court and to

“define, prescribe, and approve, from time to time and as it thinks fit, the courses of study required to be undertaken by candidates for admission as barristers and solicitors.” (Section 274(b) Lawyers and Conveyancers Act 2006).

The Council has the power to make regulations that are necessary or expedient in respect of any course of study and the practical training and experience of candidates for admission as barristers and solicitors of the court. (Section 278(1)(a) Lawyers and Conveyancers Act 2006).

The Council may not make regulations under section 278 unless the Minister (of the Crown responsible for the administration of the Act) has approved them. (Section 278(3) Lawyers and Conveyancers Act 2006)

Regulations made under section 278 are secondary legislation. (Section 278(4) Lawyers and Conveyancers Act).

Secondary Legislation

Secondary legislation is, curiously enough, secondary legislation. In a masterpiece of statutory drafting secondary legislation is defined as

“an instrument (whatever it is called) that—

(a)          is made under an Act if the Act (or any other legislation) states that the instrument is secondary legislation. (Section 5 Legislation Act 2019)

Thus the regulations made under section 278 of the Lawyers and Conveyancers Act 2006 are secondary legislation – why? Because section 278(4) says that they are.

Part 5 of the Legislation Act 2019 provides for Parliament’s oversight of secondary legislation. Given that regulations may be made without Parliament’s approval this form of oversight is necessary as a safety mechanism. The purpose of Part 5 of the Legislation Act is to support Parliament in overseeing and controlling the use of delegated powers to make legislation.

The relevant Minister must present secondary legislation to the House of Representatives but there are exemptions. Regulations made under section 278 of the Lawyers and Conveyancers Act are exempt from presentation requirements.

However, all secondary legislation is subject to disallowance, although there are limited exceptions as set out in section 115 of the Legislation Act 2019. Section 116 of the Legislation Act 2019 give the power to the House of Representatives, by resolution, to disallow any secondary legislation, or any provision of secondary legislation. The matter comes before the House if “a member of the Committee of the House of Representatives responsible for the review of secondary legislation gives notice of a motion to disallow it” (Section 117 Legislation Act 2019).

The Regulations Review Committee, to whom Mr. Judd KC has sent his complaint, is a Select Committee of Parliament. Its functions are set out in Standing Order 326. The Standing Orders of Parliament may be found here.

On its homepage its duties are stated as follows:

To keep New Zealand running efficiently, law making powers are often given to bodies that are not Parliament. These bodies make rules about common things like ACC fees, industry standards and civil defence responses that can have a nationwide impact. The Regulations Review Committee makes sure that all these rules have been made fairly and are used consistently.

Thus the Committee has oversight of secondary legislation such as regulations. That is made clear from a reading of its functions (SO 326).

It can draw the special attention of the House to secondary legislation upon the following grounds that the secondary legislation—

(a)       is not in accordance with the general objects and intentions of the enactment under which it is made:

(b)       trespasses unduly on personal rights and liberties:

(c)       appears to make some unusual or unexpected use of the powers conferred by the enactment under which it is made:

(d)       unduly makes the rights and liberties of persons dependent upon administrative decisions which are not subject to review on their merits by a judicial or other independent tribunal:

(e)       excludes the jurisdiction of the courts without explicit authorisation in the enactment under which it is made:

(f)       contains matter more appropriate for parliamentary enactment:

(g)       is retrospective where this is not expressly authorised by the enactment under which it is made:

(h)       was not made in compliance with particular notice and consultation procedures prescribed by applicable enactments:

(i)       for any other reason concerning its form or purport, calls for elucidation. (SO 327)

Where a complaint is made by a person aggrieved at the operation of secondary legislation “the complaint must be placed before the committee at its next meeting for the committee to consider whether, on the face of it, the complaint relates to one of the grounds on which the committee may draw secondary legislation to the special attention of the House.” (SO 328)

The Committee is chaired by the Hon David Parker and members of the Committee are Ryan Hamilton MP (Deputy Chair), James Meager MP, Joseph Mooney MP and Jenny Salesa MP.

 The sittings of the Regulations Review Committee are made available on the website here. I am writing this section of this article on 8 May 2024 and there is a sitting of the Regulations Review Committee today starting at 3:30  pm and concluding at 5:45 pm. There are complaints that are being entertained about  the Education (Early Childhood Services) Amendment Regulations (No 2) 2023. It is unclear if Mr. Judd KC’s complaint has been considered or is yet to be considered.

The Complaint

Mr. Judd has invoked Standing Order 328 in bringing his complaint. His complaint is about the Professional Examinations in Law (Tikanga Maori Requirements) Amendment Regulation 2022. The regulation commences and has effect from 1 January 2025.

The effect of the Regulation is that the teaching and examination of Tikanga Maori Requirements is compulsory.

Tikanga Maori Requirements means:

“(a)  the requirement in regulation 3(1)(a)(ii) that the degree course includes teaching and assessment of the general principles and practices of tikanga Māori | Māori laws and philosophy relevant to the subjects set out in regulations 3(1)(b) and 3(1)(d)

(b) the requirement in regulation 3(b), that the subjects of examination shall include tikanga Māori | Māori laws and philosophy

 (c)  the prescription of the subject of examination which is tikanga Māori | Māori laws and philosophy, as prescribed in the First Schedule.”

The regulations were made by the New Zealand Council of Legal Education, comprising three judges, six [actually, it is five not six] appointees recommended by the New Zealand Law Society who presumably are lawyers, the deans of the law schools and two people recommended by the New Zealand Law Students’ Association.

Mr. Judd KC opens his complaint with the observation that the regulation is

“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.

In doing so, they flout or aid and abet the flouting of the twin pillars of New Zealand’s constitution, the “continuing commitment to the rule of law and the sovereignty of Parliament” (s 3(2) of the Senior Courts Act 2016).

The problem is not the recognition of aspects of tikanga for specific purposes, for example customary title to Māori land. The problem is the holus-bolus adoption of tikanga as if it were part of the common law developed by the courts incrementally over the centuries, case by case.”

Mr. Judd then goes on to argue that tikanga is not law. He has argued this point in two previous articles “Tikanga is not Law” and “Tikanga is not law #2”.

In addition to the issues raised in those articles he refers to the Supreme Court’s judgment in the Peter Ellis (continuance of the appeal) case (Ellis v R [2022] NZSC 114). That case concluded with a lengthy statement of Tikanga running to some 20 pages or 108 paragraphs. It dealt with a number of key components of tikanga. What was perhaps significant was that although it was based on an affidavit of Sir Hirini Moko Mead and Pou Temara it involved a collective assessment of tikanga Maori.

However, apart from the status of those involved in the collective assessment, there is no reference to any documented authority. It is perhaps unfortunate that the decision was delivered before the publication of He Poutama a detailed Law Commission Study Paper covering some 298 pages on the topic of Tikanga which was released in September 2023.

The appendix to the Ellis decision asserts that tikanga is the first law of New Zealand. That is picked up by the majority of judges who accepted that proposition.

Indeed, as Mr. Judd points out

“To the extent there are customs which have matured into a form of law for the people whose customs they are, it may be appropriate that they should regulate the lives of those people. The Supreme Court goes further by stating that tikanga can form part of New Zealand’s general laws. Ellis exemplifies this. Peter Ellis was not Māori. Nor were the complainants. The case had no Māori connection whatever. Yet the majority judges held tikanga to be relevant.”

This thinking, according to Mr. Judd, is reflected by the Council of Legal Education’s decision to promulgate the tikanga regulations.

He went on to observe that

Judgments elevating tikanga to the status of law bear the mark of the naked policy preferences of individual judges.

He went on to cite the remarks of Justice Glazebrook in Ellis who said:

[114] The requirements for custom to exist as a general custom and to be certain and consistent do not accord with the nature of tikanga. Traditional legal systems tend to be more focused on values and principles rather than rules oriented. Further, one of the essential strengths of tikanga is its ability to adapt to new conditions and to have local variations as appropriate. These tests for certainty and consistency, being contrary to the very nature of tikanga, are therefore clearly inappropriate.

 [115] In a similar vein, the requirements for a custom to be reasonable and not repugnant to justice and morality were based on colonial attitudes that are artefacts of a different time. They import notions of “judging” tikanga and operate on the assumption of the superiority of Western values and a view that the common law inherited from the [114] The requirements for custom to exist as a general custom and to be certain and consistent do not accord with the nature of tikanga. Traditional legal systems tend to be more focused on values and principles rather than rules oriented. Further, one of the essential strengths of tikanga is its ability to adapt to new conditions and to have local variations as appropriate. These tests for certainty and consistency, being contrary the United Kingdom should be presumptively dominant. I therefore do not consider these requirements for the recognition of custom have any place in the contemporary common law of Aotearoa/New Zealand. In any event, they are very narrow restrictions and are unhelpful for courts where they need to consider the role of tikanga in modern conditions.

There are necessary elements of a legal rule that they be certain, consistent, general and reasonable as well as not being repugnant to justice and morality. Mr. Judd suggests that these elements are

“all thrown out as necessary requirements because tikanga cannot pass those tests. This turns legal reasoning on its head. If tikanga cannot pass those tests, it means tikanga does not satisfy the requirements for recognition as law. It does not mean the tests must be abandoned. The requirements are not “artefacts of a different time”. They are hallmarks of a sound legal system and are as relevant today as they were in colonial times.”

He goes on to note that the tikanga regulations will mean that students will be taught that tikanga takes precedence over certainty, consistency and reasonableness and may even by repugnant to justice and morality. That, claims Mr. Judd, is what the Supreme Court has said.

“Tikanga is given supremacy to override these principles and values of the common law. The only overt reason for doing so is the claim that it is “first law”. If judges are to rule that tikanga must be imported into the common law of New Zealand because it is the “first law” of New Zealand, they must first explain what “law” is, and then explain why tikanga is within that description. Unless they do so, they cannot say they are giving a full exposition of the reasons for judgment. The majority of the Supreme Court did not even attempt to undertake the exercise. Had it attempted to do so, it would have failed.”

Mr Judd states that the regulation will have the effect of compelling law students

“to learn “all of the values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct,” “the right Māori way of doing things,” “what Māori consider is just and correct”.

Why should law students be required to do that? Should they also be required to tune in to the norms of other communities forming part of our multicultural society? The answer is, of course, that law students should not be compelled to do any of this.”

Mr. Judd suggests that the tikanga described in the Statement of Tikanga does not satisfy the minimum requirements of the Rule of Law. The Supreme Court cannot endorse tikanga as “first law”, and therefore as law, without endorsing a system which does not conform with the rule of law.

Thus the tikanga regulations will compel law students to be taught that a system which does not conform with the rule of law is nevertheless law which should be observed and applied.

What I have set out is a summary of Mr. Judd’s discussion but it is important to understand it because it sets the scene for his complaint.

In his complaint he asserts that

The tikanga regulations are not in accordance with the general objects and intentions of the 2006 (Lawyers and Conveyancers) Act because they go outside the province of legal work and the provision of legal services, and they require law students to learn about so-called laws which are inconsistent with the rule of law.

The tikanga regulations trespass unduly on the personal rights and liberties of law students and those members of the public who might wish to become law students were they not to be subject to the requirements of the regulations.

The tikanga regulations are an unusual and unexpected use of the powers conferred by the 2006 Act.

He then makes some comment on what he sees as procedural deficiencies in the way that the Regulations were passed.

As I have noted regulations must have the approval of the minister. The regulations were approved by the Minister, Kiri Allen, by letter dated 30 January 2023.

Thus, without that approval Mr. Judd suggests that the Regulations could not have been lawfully made. The approval is the only communication that the Council had with the Minister but after 30 January 2023 the regulations were made, the Council did not send them to the minister of the day to enable them to be presented to the House.

It may be a procedural shortcoming but it is nevertheless a statutory provision which does not appear to have received compliance.

What Mr Judd did was to publish his complaint on Substack as well as making it available to the Law Association’s weekly newsletter, Law News. There has been a backlash against both Mr. Judd and the Law Association. This backlash has implications for the freedom of expression and it also demonstrates, as I shall show, the willingness of educated people to buy into discredited historical theories.

The Backlash

The article and its publication has attracted criticism and comment.

A discussion on LinkedIn has been informative. I shall shortly discuss the contribution of one commentator who began the thread but the following comments are examples of the differing points of view.

A Selection of Comments

It is fortunate that freedom of expression allows them to challenge, agree and dispute the propositions raised by Mr. Judd. Some, however, seem reluctant to accord him that right. Whatever happened to reciprocity?

One comment read as follows:

Mr Judd KC is entitled to have and express his opinions , or political puff pieces , and have them published ,but for the Law Association to publish them under the appellation of “ senior Kings Counsel “ there being no such rank , is questionable unless its shorthand for having been admitted for a long time. For my part I am more inclined to rely on the views of the Chief Justice and young lawyers like [Barrister X] who are the future of the profession. Walking backwards into the future as Mr Judd would have us do , does not commend itself to me.

Another expressed the view that

“Mr Judd's complaint is perhaps the best evidence of why this change needs to happen. Whatungarongaro te tangata, toitū te whenua.”

Yet more

“Reading that article was like reading a rambling historical artefact adamant that the earth is, in fact, flat.”

By way of comment, the “Doctrine of Discovery” discussed below is an historical artefact, misinterpreted and falls into the grab-bag of flat earth theory as well. More on that later.

And

“Really disappointing the Law Association has chosen to repeatedly (they have done this before) give a platform to very thinly veiled anti-Maōri sentiment.”

On the other hand

“Wouldn't a better position to take be that it's healthy to have a robust debate about tikanga, its increasingly elevated status from the Courts and NZCLE's decision? The Law Association have done no more than publish a genuinely held opinion, parts of which mirror concerns that many in the legal profession share. As lawyers we should support both (1) critically examining issues and (2) robust debate.”

Along with

“Personally I think tikanga, is a step too far, as is the reification of many Indigenous concepts around the world. They have their own place as part of a cultural story but they're out of place in a rational, science based, secular, multicultural , multi-ethical society.

This debate sounds to me analogous to the free speech or antisemitism debate embracing the world at present. Many argue antizionism, including many Jewish people, is not antisemitism. This has extensions to indigenous debate.

I believe equal opportunity is the cornerstone of all social justice. Indigenous peoples everywhere need affirmative action to give equal opportunity and compensation for past injustices. But that very principle, equal opportunity, demands affirmative action end at a point in time. We haven't reached it, but we must acknowledge it.”

Back to the critique

“Tikanga Māori is the founding law of Aotearoa NZ and the Law Association’s position is utterly bizarre.

They could be describing colonisation itself: ‘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.’

And

“Interesting that this KC is providing his expert opinion on something he obviously has no idea about”

I might observe that social media and good grammar are uncomfortable bed mates as that post demonstrates. “About which, obviously, he has no idea” would have been better.

And finally

“The author - like our government - appears to believe that our laws and legal institutions are culturally neutral and inclusion of Tikanga creates bias. He has an absolute (chosen) blindness to the dominance of western (largely English) cultural norms, assumptions and frameworks and the colonial suppression of matauranga Maori. I hope Justice Joe Williams takes him on”

Barrister X’s Approach

What is of interest in this sample taken from the thread is the criticism of the Law Association and Law News for publishing Mr. Judd’s article in the first place. This aspect was raised by the first commentator whom I shall refer to as Barrister X, who started the thread and posted the following on Linkedin

“I am disappointed that the Law Association published this article and made it the cover page of its weekly newsletter. It further emphasises a very unhelpful commentary about tikanga being incapable of being law. This reminds me of the doctrine of discovery and the notion that indigenous peoples were so uncivilised that we were incapable of having legal systems.

I support free speech, but I hope for greater leadership in the current anti-Maori climate. For example, some law students I have heard from are being harassed and threatened harm by white supremacists about their cultural spaces on campus. They will be emboldened by this.”

There are two issues that arise from this post. Despite Barrister X’s stated support for free speech he fails to recognize the difference between the message and the messenger.

The Law Association and Publicity

Clearly Barrister X’s disappointment should be directed not to the Law Association and Law News but to the substance of Mr. Judd’s article. But no. His concern is that the article was published in the first place.

In so saying he ignores a principle that underlies the freedom of expression which is known as content or viewpoint neutrality. The concept comes from US First Amendment Law. It stands for the principle that when government actions implicate speech rights those actions must be done in an even handed way.

Underlying the concept is the importance of maintaining the right to free expression without necessarily endorsing the message of that expression – just as long as an equal platform is afforded to contending points of view.

The concept translates into a number of other contexts apart from government actions and it is here that the role of Law News and the Law Association comes into the picture. The fact that Law News published the article by Mr. Judd does not automatically mean that it endorses or supports his point of view. It merely provides a neutral platform – something that is misunderstood in many debates about freedom of expression.

But I don’t think Barrister X is suggesting that the Law Association endorses Mr. Judd’s viewpoint. He goes further and expresses disappointment that the article was published in the first place. Thus, he suggests that Mr. Judd should be deprived of a platform. That has implications for Mr. Judd’s freedom of expression and the freedom that others have to receive his point of view.

If indeed that is Barrister X’s position – and I hope it is not – then the conclusion to the suggestion is that The Law Association should act as some form of censor in determining what it should and should not publish.

Admittedly, editorial decisions arrive at a similar result but the suggestion that a point of view should be censored, banned or otherwise redacted because some readers may be disappointed amounts to a stifling of the debate that freedom of expression fosters.

The Doctrine of Discovery

Barrister X also suggests that Mr Judd’s view reminds him of the Doctrine of Discovery. Perhaps Barrister X would benefit from reading Professor Paul Moon’s discussion of the so-called Doctrine in his article “The Doctrine of Discovery in New Zealand: A Fresh Historical Conspiracy Theory”

Professor Moon points out that

“The ‘doctrine’ itself derives from a sentence contained in a Papal Bull issued in 1493 by Pope Alexander VI. The Bull’s purpose was to support Spain’s wish to assert exclusive rights over certain territories discovered by Christopher Columbus the previous year. The Bull set out the specific locations (one hundred leagues west of the Azores and Cape Verde Islands) that would be assigned solely to Spain, and imposed a prohibition on other Catholic states approaching those territories without Spanish approval. The Vatican’s view was that any territories outside of Europe that were not inhabited by Christians were open to claims of ‘discovery’ (and implicitly, some form of sovereignty) by whichever Catholic power reached these territories first. This is the essence and extent of what later became known as the Doctrine of Discovery.”

He goes on to observe that the 1493 Bull

“did not influence intervention in the New World by Catholic nations so much as respond to incursions that were already well underway. It was descriptive of what was already taking place, rather prescriptive in terms of colonial policy and ideology. Recent scholarship on the Bull confirms that the Vatican exercised very little authority over the foreign policy of Catholic states at this time. Indeed, so ineffective was this Bull that its provisions were superseded the following year by the Treaty of Tordesillas – an agreement that similarly aimed to determine exclusive areas of colonial activity, but that was signed directly by the colonial powers concerned, without any regard to the Vatican’s pronouncements. And if any suspicion remained that the Bull still retained some influence, this was eliminated in 1537, when Pope Paul III issued his Sublimis Deus – a Papal Bull which explicitly forbade Catholic nations engaging in wars of conquest in potential colonies, and which effectively superseded the 1493 Bull. The 1494 Treaty of Tordesillas, along with this 1537 Papal Bull, ended any faint influence that the 1493 Bull may have exercised over European colonisation in this era.”

What has happened since, according to Professor Moon, is that lawyers have resuscitated the idea that the Doctrine of Discovery guided European colonization for four centuries but as Professor Moon suggests this is a claim that is preposterous to anyone familiar with the way in which various European states – especially Britain – developed their colonial policy in the eighteenth and nineteenth centuries.

Britain’s colonization of New Zealand was never based on the principles of assertion of territorial sovereignty over a colony and the subjugation of indigenous populations.

It is argued by adherents of this discredited Doctrine that Captain Cook and Governor Hobson emerge embodied the desire to claim New Zealand as a possession and rule over Maori.

Professor Moon points out that Britain knew about New Zealand’s location from the late 1640s, but only sent an expedition to the country in 1768. It was not until 1840 that Britain (only reluctantly) asserted sovereignty over its people living in the territory.

This lethargy is hardly the behaviour of an avaricious colonial power, intent on devouring territory to rule over.

Although Hobson’s proclamation of May 1840 - ‘I…assert…on the grounds of Discovery, the Sovereign Rights of Her Majesty over the Southern Islands of New-Zealand’ – looks like proof of the Doctrine of Discovery in action it is not because it ignores the context surrounding the making of the Proclamation. Professor Moon states

“By May 1840, Hobson was still unaware how many chiefs had signed the Treaty, and was becoming increasingly apprehensive about the threat that the New Zealand Company posed to his rule and the colony’s stability. This Proclamation was issued as a pre-emptive measure against the Company, and not part of any attempt to ‘claim’ the South Island by relying on the Doctrine of Discovery. Contemporaneous correspondence makes this indisputable, but as further evidence, Hobson explicitly continued to seek consent from South Island chiefs to the Treaty (which would have been redundant if he was applying the Doctrine of Discovery), and by June 1840, a total of 56 chiefs from the South Island had signed the Treaty. Moreover, the Treaty did not give (and Hobson’s administration never claimed) control either over any Māori land in the South Island or over its indigenous inhabitants. So by every measure, the Doctrine of Discovery did not apply to Britain’s colonisation of New Zealand through this Proclamation.”

Professor Moon cites a number of other reasons which expose claims that the Doctrine of Discovery (if it ever existed) affecting New Zealand’s colonization was fabricated. In summary these are:

·         By the time that Britain commenced colonising New Zealand, it had severed any ties with the Catholic Church for centuries, and any Catholic influence was actively repudiated.

·         Britain’s imperial expansion in the eighteenth and nineteenth centuries lacked adherence to any doctrine. The Empire was acquired ‘in a fit of absence of mind’, as John Seeley famously observed in 1883. Moreover, the motives behind the Doctrine of Discovery were religious and territorial. British colonisation, on the other hand, was largely secular, and focussed primarily on trade instead of territory.

·         The Doctrine was devised for a specific region, of which New Zealand was not a part, for a colonising power which never had any territorial claim to New Zealand, and at a time when New Zealand’s existence was unknown to Europe.

·         Even for Catholic nations in Europe, the 1493 Bull had carried little authority at the time, and by the eighteenth century was no longer adhered to at all.

·         There is no mention of the Doctrine of Discovery in any British Government document relating to New Zealand’s colonisation – neither directly nor implicitly – and neither did its precepts form part of British policy in this period.

·         In the approximately two years leading up to New Zealand’s cession of sovereignty in 1840 via the Treaty, British policy on the territory was developed on principles that contravene the central tenets of the Doctrine of Discovery. This is especially important because it negates the argument that somehow, the general sentiment of the Doctrine embedded itself in British colonial policy in the nineteenth century as a precursor to New Zealand’s colonisation.

Had Barrister X omitted a reference to the discredited Doctrine of Discovery, his assertion might have carried more weight in that it was well known that indigenous peoples had their own rule-based systems and lore by which they ordered their communities and their affairs.

Dr Jane Kelsey’s View

One critic of Mr Judd’s complaint is Emeritus Professor of Law Dr Jane Kelsey. In an article in the Herald for 8 May 2024 she said:

“Mr Judd is about the same vintage as me. The Treaty warranted one class in my entire law degree, and that was the English version. Thankfully, we now have a more informed curriculum that reflects our history, colonial and Māori, which has fed through into a more informed jurisprudence.”

It is a minor matter but Mr. Judd was ahead of me at Law School and when I finished, Dr. Kelsey hadn’t started. Not a big beef, but the comment she makes about the teaching surrounding the Treaty (or lack of it) is correct.

Dr. Kelsey went on to say that  she found students embraced learning about the Māori ethical and spiritual relationships encompassed in tikanga and it provided valuable perspective.

“I found my students embraced the richness of that approach. It is now reflected in our courts as well, recognising that tikanga is not just another system of law but one that Te Tiriti said would continue to operate alongside the common law.”

Dr. Kelsey told the Herald it had taken New Zealand more than 40 years to get to the point where tikanga Māori can be accepted as part of a law education in this country.

However, she did wonder if the move to make tikanga a compulsory part of the New Zealand law curriculum was being pushed through too hastily.

“The problem is that Te Tiriti and tikanga as it is taught are still often viewed through a Pākeha lens”

“The latest moves by the Council of Legal Education are well-intentioned and seek to enhance those foundations, although personally, I feel they are rushing it and the groundwork, including understanding among legal academics of the complexities and nuances of tikanga and how it relates to Te Tiriti and to common law, is not quite there.

“It needs a couple more years. But the last thing we need is for senior counsel and senior politicians to take us back to the infamous days of the Wi Parata case in 1877 that said Māori were not civilised enough to have a system of law. That needs to remain in the dustbin of legal history.”

Dr Kelsey’s measured, well reasoned – some might say moderate – approach contrasts with that of Professor Khlyee Quince, Dean of AUT Law School

Dean Khylee Quince’s Comment

Hers was a more impassioned critique. She stated on social media:

“I suppose it was inevitable that one of the old racist dinosaurs would make a pathetic squeal in an attempt to preserve the status quo…. Mr Judd and his “matauranga Maori is not science” friends can go die quietly in the corner…”

Ms. Quince has been criticized for her intemperate outburst. One commentator suggested that

“the mindless abuse by Dean Quince of Mr Judd is something you might expect from an excitable first year law student, not the Dean of a Law School.”

I think if I were to critique Mr. Judd’s article I would rather approach it from the basis that he is wrong and then set out to prove why he is wrong.

Having said that I must say that Ms. Quince is entitled to express her point of view and in whatever terms she wishes. That is what freedom of expression is all about. By the same token “racist dinosaurs” squealing “in an attempt to preserve the status quo” are entitled to express their point of view as well.

And Law Talk is entitled to publish both of those points of view (although Ms Quince prefers social media as her platform of choice) without endorsing or subscribing to the content of the point of view.

Mr Judd’s Response.

As may be expected Mr. Judd came out swinging in response to Professor Quince’s comment. In an article on The Platform he asked

“What sort of lawyers will be produced by a law faculty led by someone who resorts to petty abuse instead of engaging in rational argument?

Why did she not explain why tikanga is law? Why did she not explain why a body of law built up over centuries for the purpose of testing whether a custom should be accorded the status of law must be jettisoned because tikanga cannot meet those standards? Why did she not answer other matters raised in my complaint to the regulations review committee. Responses like those could have been expected from a person holding a privileged leadership position. As it is not the response given, the inference may be drawn that she does not have answers which support her position.”

Clearly Mr. Judd was looking for a rational argument – a considered answer. What he got was abuse. He then went on to consider Professor Quince’s position as Dean of AUT Law and how that related to the Council for Legal Education.

The law school deans are members of the Council for legal education. Ms Quince became interim dean in 2021. Presumably that means she was one of those responsible for this breach of the human rights of potential law students. Whilst compelling those who wish to be lawyers to have sufficient knowledge of criminal law, the law of contract, torts and so on is a limitation on their freedoms, it is a limitation which can be demonstrably justified in a free and democratic society. If a person wishes to engage in the practice of law, they must be possessed of adequate competence in the core legal subjects. It is a quite different thing to compel them to receive indoctrination in a system of beliefs and values held by one section of the community.

He returned then to her rather personal comment by saying

Ms Quince has such absolute conviction in the rightness of her position that she will happily employ compulsion instead of reason and those who disagree must “go die quietly in the corner.”

To those wishing to take up law, I say try to find a university with a faculty whose leadership has greater respect for the tradition of law as a reasoning discipline.

Somehow I don’t think that this will be the last word on the subject.

Conclusion

There is a certain elegance in legal processes. Tracing through the various authorities for rule making powers and the steps that can be taken to challenge them is one of those journeys through a legal labyrinth that makes me realise why I love this thing called law.

But there is more to it than just personal gratification. What this study shows is how the Rule of Law is so fundamental to the democratic process and how the democratic process is part of the Rule of Law. Parliament gives a body the power to make regulations or secondary legislation.

This means that the particular organization which will have some expertise in the area to be regulated relieves the House of Representatives or the responsible Minister from having the devise the Regulations themselves. That is what the delegation of a rule making power is all about.

But that delegated power is not absolute. There are checks and balances. The regulations must be referred to the responsible Minister. In many cases the Regulations must be tabled. Thus Parliament retains a supervisory power.

But what is truly beautiful and marvellous about all this is that the Standing Orders of Parliament have constituted the Regulations Review Committee as a Select Committee of the House exercising a supervisory and recommendatory power over regulations. And what is further wonderful is that the supervisory power of the Regulations Review Committee is not engaged by 50,000 signatures on a petition or a hikoi from one end of the country to the other but can be engaged by the complaint of one individual.

And all of this is provided for by a written clearly expressed (albeit labyrinthine) set of statutory provisions and rules. There are no customary processes present. There is no lore sitting behind this law. It is clear. It is certain. It is consistent. It applies to everyone. It is expressed in writing so that there is a record of what is required to be done and what is more it is just and it is fully in accord with the democracy within which we live. It is unequivocally law.

But there are other democratic elements in play in this story and the most important one is the freedom of expression. That is Mr. Judd’s freedom to express his point of view and our freedom to receive his point of view. Freedom of expression in the New Zealand Bill of Rights Act 1990 is a two way street – for the speaker and for the listener or the reader.

What is truly concerning is that a number of the commentators would rather Mr. Judd were silenced than debate his ideas. And although they may sound old fashioned what lies behind those ideas is sweet reason and they should be answered similarly.

Finally, what freedom of expression allows is for us to be able examine the ideas expressed. Barrister X may have fallen into a trap in suggesting that the Law Association should act as a censor, and possibly misunderstands the discredited “Doctrine of Discovery”. Perhaps in a subsequent article – which he might like to publish in the viewpoint neutral Law News – he can explain in some detail where Mr. Judd has fallen into error.

The other advantage that freedom of expression gives us is the opportunity to make an assessment of the quality of the ideas expressed by the speaker. Readers may reach their own conclusions about those of Ms. Quince. (See Mathew 12:36 – 37.)