Parliament’s Regulations Review committee has agreed to proceed with a complaint made by Gary Judd KC about a regulation making the study of tikanga Māori compulsory for law students from next year.

Committee chairman David Parker has written to Judd KC, saying the committee accepts that, on the face of it, his complaint relates to two of Parliament’s standing orders and the committee has decided to send copies to NZLS and the Council of Legal Education, asking for written submissions. The Law Association is also likely to make submissions.

The two relevant standing orders are SO 327(2)(b) – that a regulation trespasses unduly on personal rights and liberties – and SO 327(2)(c) – that the regulations appear to make unusual or unexpected use of the powers conferred by the enactment under which they are made.

The committee has jurisdiction to investigate complaints about secondary legislation. It can draw these matters to the attention of the House and recommend that the secondary legislation be disallowed under the Legislation Act 2019.

The regulation at issue is the Professional Examination in Law (Tikanga Māori Requirements) Amendment Regulations 2022, made under s 278 of the Lawyers and Conveyancers Act 2006.

No compulsion

Judd KC’s complaint, which has sparked high levels of controversy, was considered by the committee’s 1 May and 8 May meetings.

Judd KC’s complaint is now being treated as evidence and made publicly available on Parliament’s website. It can be read here.

In his complaint, Judd KC says: “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….

“The problem is not the recognition of aspect 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.”

Judd KC explicitly says he is not opposed to the teaching of tikanga to law students per se. He is, however, opposed to it being made compulsory and woven into other subjects such as tort and contract law.

Strong opposition

Not surprisingly, Te Hunga Roia Maori/the Māori Law Society is vehemently opposed to the complaint. Its response can be read here.

President Tai Ahu says the courts’ recognition of tikanga Māori as law may be “an intimidating prospect” for some lawyers, particularly those with little or no knowledge or experience of tikanga Māori.

“However, any debate about the place of tikanga Māori in our legal systems and in our law schools needs to be informed by accurate debate.”

Ahu says he considers Judd KC’s views to be “outdated and incorrect”.

Relegating tikanga to mere “beliefs and values” is reminiscent of the remarks of Chief Judge Predergast in the Wi Parata case – that Māori “were found without any kind of civil government or any system of law”, he says.

“This view is antiquated, unsophisticated and inconsistent with several court decisions.”

Ahu says Te Hunga Roia Māori “stands firmly in support” of the decision to make tikanga Māori compulsory subject for law students, saying the decision was made after a long period of consultation with lawyers and legal academics from our law schools, both Māori and non-Māori. ■