Every country needs a set of rules by which it lives – it is called the “Constitution.” Some are written down; some are an accumulation of past practices which have over the years been found to answer the needs of the people. These are generally referred to as “unwritten”. Ours like the United Kingdom Australia and Canada is the latter. Being unwritten there is no text to refer to when problems arise involving the actions of the state and its relationship with the component organs which make it up. It can therefore function only by the exercise of restraint on the part of all concerned and by accepting long standing conventions. This is generally referred to as “comity.” Such is the relationship between the two pillars of our state, the Courts and Parliament. Generally speaking, Parliament makes the laws, and the task of the Courts is to interpret those laws and ensure that they are applied impartially to all citizens regardless of social standing, race or ethnicity. This is particularly vital in a multi- cultural society such as New Zealand has become. If this “comity” breaks down, then the state cannot function, and anarchy ensues. Examples of this are to be seen in Georgia, Vanuatu, and Slovakia at the time of writing.
When judges are appointed, they swear an oath “to do right by all manner of persons without fear or favour, affection or ill will according to law.” That means what it says. They are not free to indulge their personal views or likes and dislikes on any matter which comes before them. Their sole task is to ascertain the law applicable to the case and apply it to the facts as they find them to be from the evidence adduced at the hearing. They are to fear no litigant or treat another with affection or ill will because they don’t like their politics or social mores. In particular they are not there to right perceived historic wrongs claimed by any group or person. This has been so well understood that it was until recently barely worth repeating. That is no longer the case, and a crisis is brewing in the relationship between lawyers, courts and Parliament which unless arrested will surely lead to the demolition of our constitution and result either in the Judiciary losing their vital status and function or alternatively a rule of Judge made law to which Parliament becomes subject. Such a result marks the end of democracy because on the one hand the public will have no established body of law to turn to which the Courts will enforce and the right of the public to choose its Parliament will be fatally compromised. Scare mongering? Sadly, not as the following instances illustrate.
The place of Maori tribal customs in the Common Law
Beginning with the Ellis case in the recent past three of the Judges in the Supreme Court decided to recognise the place of a tribal custom which they labelled Tikanga in order to decide if the appeal before them which had been brought by a Mr. Ellis before he died, could continue. The law was clear – his estate could continue the appeal, but three of the five Judges added that by applying the maori custom of the “mana” of the deceased that also allowed the case to continue. One might think, a lawyer’s quibble, and no harm done. Not so, the idea caught on nurtured by the previous Ardern government and the notion that our laws contain an ingredient of native customs has become popular among some judges in particular but not exclusively in cases involving litigants with some Maori ethnicity. Thus, a High Court Judge recently overturned a criminal conviction involving a part Maori on the grounds that the conviction would damage his “mana.” The Supreme Court in the Smith case allowed a claim to proceed to a hearing in the High Court that the plaintiff’s tribal lands were being damaged by the alleged global warming caused by the commercial activities of the defendants. In addition to inventing a new head of public nuisance based solely on notions of global warming the Court also took comfort from the application of Tikanga. In the High Court and the Court of Appeal, applying considerations of “comity” the Judges had taken the view that such matters must be left to Parliament involving as they do the delicate balancing of public interest considerations. That traditional approach cut no ice with the Supreme Court Justices in deciding that Mr. Smith is entitled to his day in Court.
The intractable problems about this Judicial favouring of one group in our society above all others are plain to see: Nobody knows what the content of Tikanga is until some learned elder comes to the court with an explanation. One, be it noted that can only ever be hearsay evidence of what some ancestor, in the absence of any written language is said to be passed down the generations. Then there is the problem that if the custom is not knowable in advance how can it be called “law.” Added to which do these customs apply to all members of society or only those of Maori ethnicity, and what is the position if a case involves Maoris and non -Maoris or tribes with competing customs? One would have thought these to be insuperable obstacles to any Judge allowing such customs to become part of the law which is common to all citizens. It is a blatant case of the judges making it up as they go along presumably encouraged by their personal views of the need to redress past wrongs alleged to have been suffered by Maori people. Added to which is no doubt the judges personal view of the importance and legal significance of the document signed in 1840 between the Crown and some Maori elders. To date no judge has confronted these problems and no doubt given the matters discussed below they will persist to the point where the law is no longer common to all citizens. When that occurs respect for, and obedience to the law will be fatally compromised.
The role of the law Schools, and the Council of Legal Education
The role of the law schools in the breakdown of the relationship between the Courts and Parliament is becoming ever more apparent. In past the law lecturers educated their students in what the law is not what they might like it to be. We were required to put aside our personal feelings and beliefs about a particular legal principle and simply inform the class the content and place of that principle within the legal framework. It is not for a law lecturer to invent new causes of action or to introduce into the law foreign concepts be they for example from the French Code Napoleon or the Laws of The Meads and The Persians. The introduction of Tikanga is no different. The customs by which the tribes lived in these remote Isles in pre- European times are irrelevant to the management of social interaction in the twenty second century. It should be plain beyond argument that there is no comparison between tribal practices thought necessary for a people to survive in earlier times and to do so today. Yet the Council of Legal Education has been directed by the previous Labour government to ensure that those tribal customs are to be taught in all law schools. Quite how, and by whom these customs are to be collated and written down for the purposes of teaching is beyond comprehension. Not only has this ever happened during the time they were in use, but the insuperable task of knowing which ones to include (Utu, slavery, cannibalism and subjection of women come to mind) but the added problem that customs differed from tribe to tribe-which ones to call law and which to quietly ignore.
I served on the Council of Legal education in the nineteen eighties. It was a sober body chaired in my time by Sir Ivor Richardson an eminent Judge of the Court of Appeal. Its membership included members of the Judiciary, the practising legal profession and some academics. Its sole task was to ensure that the law schools taught only the rudiments of the common law and that any lawyer coming to New Zealand from another jurisdiction understood the law and was safe to practice here. If it was open to any criticism, it would be that it acted as a bit of a closed shop, and I well remember us requiring a gentleman with a Doctorate of Law from a European university to sit some of our elementary exams before being admitted to practice here. This is the body which has been directed by subordinate legislation conceived by the Labour Minister of Justice (who is before the Courts for her driving antics) in the dying stages of the last government to require the Council beginning 2025 to ensure that Tikanga is taught in all law schools. This regulation is so suspect that it has been challenged by the distinguished Kings Counsel Garry Judd as being ultra vires, and that will be the subject of a decision by the Regulations Review Committee. Let’s hope it is dealt with before Mr. Judd finds a comfortable corner in which to die as recommended by M/s Quince who is apparently until further notice a Dean of what was the Auckland Polytechnic law school. Abuse which further demonstrates the depths to which a member of a hitherto respected profession has sunk in pursuit of this demolition of the Common Law.
The Waitangi Tribunal
Into this sorry mix are the recent antics of this Tribunal in summonsing a Minister of the Crown to appear before it and give evidence on a matter touching one of its “enquiries.” The matter related to legislation which the Minister was about to introduce to the house concerning the treatment of disadvantaged children from part Maori backgrounds. As is now well known the Minister refused to comply with the summons with the result the Tribunal took proceedings in the High Court for judicial review, essentially seeking an answer to whether or not the Tribunal has power to issue and enforce such a summons. The High Court decided that as a Commission of enquiry it did have the power but crucially as a matter of “comity” between Parliament and the Courts the Court would not allow the Tribunal to interfere in the business of Parliament in this way. Involving as a it probably would the Minister being questioned by members of the Tribunal and probably the parties. The Judge concluded that this might involve matters which would inevitably touch on Cabinet confidentiality . One would have thought this conclusion so obvious that it is amazing that the Tribunal thought fit to bring the application. Added to that, what is the outcome if this Commission of enquiry can subpoena a Minister of the Crown to give evidence and does it mean that every such Commission can do the same. Not to mention what happens if the Minister simply refuses to attend as did this one. Does the Tribunal issue a warrant for her arrest, and is she taken into custody to be dragged before the Commission, and once there is she subject to the laws of contempt and can be fined or imprisoned for failing to answer question to the satisfaction of the Commissioners or the parties. Although mention of these outcomes was avoided by the trial Judge, he refused the application on the grounds that to force a Minister of the Crown in this way was simply a breach of the “comity” which both Courts and Parliament are obliged to observe in their dealings with each other. Three Judges in the Court of Appeal would have none of this restraint. They were of the view that the Tribunal could demand the presence of a Minister to answer questions because the Tribunal is part of New Zealand’s “Constitutional structure”, and anyway Ministers have attended such hearings in the past. Leaving aside whether they are correct about the standing of the Tribunal, which is highly doubtful, it is the cavalier way in which they dismissed the “comity” argument – accepting that it exists but ruling that to demand the presence of a minister to answer questions is not a breach of this unwritten constitutional convention. One would have thought the Judges would be concerned to lift their sights above Treaty issues and consider the wider implications of their judgment. If left to stand the principle of “comity” is fatally damaged and it will allow Commissions of enquiry and activist Judges, at their whim to interfere in the business of Parliament. Given the matters set out above and the influence of Maori customs both in our law schools and inevitably among practising lawyers (as to which see below) the pool of talent available for appointment to the Courts will certainly contain such persons for whom the oath of office will be no more than a tiresome formality. It is astonishing that the Judges are not aware of these issues and to conclude by saying that “oh well” none of it matters in the instant case because the legislation has been introduced to the house and the courts therefore have no further jurisdiction. That is a recognition of the “comity” which the Court accepts exists between themselves and Parliament, but which apparently does not in their view apply to the formulation of policy before it is introduced as a Bill before Parliament. It is a glaring non sequitur but subject to a further appeal it is now the law.
The New Zealand Law Society and the cricketers
As a footnote to this rending of the Common Law is the pathetic charade of the two cricket mad lawyers who exchange emails on their office computers concerning the organising of a long- standing cricket fixture. In doing so they touched on the matters of cricketing gender. This elicited an anonymous complaint presumably from somebody sympathetic to the “rainbow” community (as they now like to be called.) Not only did the Council of the Law Society accept an anonymous complaint but initiated disciplinary proceedings against the miscreants and did so in a manner shrouded in secrecy concluding that the lawyers had been naughty in their email exchange but decided to take no disciplinary action. When the lawyers asked for a copy of the decision this was declined without giving reasons. They refused to accept this on the grounds it was a clear breach of the principles of natural justice and on the more pragmatic ground that when applying annually for a renewal of their negligence insurance they are required to disclose to the insurer any Law Society disciplinary proceedings taken against them in the previous year. Accordingly, they applied to the High Court for Judicial review of the antics of the Law Society. The High Court Judge effectively said, “nothing to see here” and declined any relief to the lawyers. They appealed to the Court of Appeal which sat three Judges two who are well known to me and who learned their trade before the advent of the sort of unprincipled wokeism at play in this case. They took a serious view of the Law Society’s blatant denial of justice, quashed the decision and exposed the Society, or rather its members to substantial costs. It passes comprehension that a group of lawyers can chastise other practising lawyers and then refuse to give their reason for doing so. Perhaps if it had not been a rainbow case the outcome would have been different.
Conclusion
Most of the foregoing passes under the radar of those who make up the general public. They have more pressing concerns getting through the daily grind, but these trends are capable of irretrievable harm and cannot be allowed to continue to infect our democratic institutions. Fortunately, the whole Tikanga thing can be simply rectified by the addition of one line in the various statutes which govern practice in the courts. That line would simply read. “Maori customary practices or Tikanga are not part of the common law of New Zealand.” Such an amendment is crucial not only in the criminal law but to the continued orderly functioning of the market economy. It is the certainty needed in civil litigation much of which is concerned with commercial relationships between the litigants. To allow some half remembered native custom to intrude into legal relationships, none of which existed at the time the custom allegedly came into existence has the potential to derail the ingredient of certainty crucial to the common law in its civil jurisdiction. As to the antics of the Waitangi Tribunal. If it is allowed to continue its work which is a moot point a simple amendment is needed to the Constitution Act providing that no Minister or other person having charge of proposed legislation may be summoned to give evidence before any Commission of enquiry set up under the Commissions of Enquiry Act. In the case of the Council of Legal Education fiasco which Gary Judd KC has exposed, hopefully the relevant regulation will be found to be invalid. If not, it can simply be revoked.
I have not the slightest doubt that the Attorney General Judith Collins is alive to the danger. She is a former practitioner and president of the New Zealand Law Society. The Minister of Justice is also active in restoring the primacy of Parliament and Parliament’s relationship with the Courts by introducing legislation governing the sentences that should typically be imposed in the case of serious repeat offenders. But they alone cannot carry the day and are reliant on the rest of the Ministers and behind that their Parties and most importantly the leadership of the Prime Minister. The Coalition government has more than enough on its plate putting out the bushfires left by the Ardern government and by any standards they are doing exceptionally well, but these matters are crucial to the survival of our democracy and the Rule of Law. They require urgent attention.