Karakia in judicial proceedings

In a comment to my Substack, It never rains, but it pours, it was suggested that I should write to the Attorney-General and the Minister of Justice. That was a good idea, and I have done so. On 30 March 2025 I emailed a letter to the Chief Justice (Dame Helen Winkelmann), the Attorney-General (Hon Judith Collins) and the Minister of Justice (Hon Paul Goldsmith). I copied the letter to the Prime Minister, the Leader of New Zealand First and the Leader of the ACT Party.

I have yet to have an acknowledgement, but the legal publication, LawNews, to whom I sent a copy of my letter sought comment from the Chief Justice's office. The LawNews article included this:

A spokesperson for Winkelmann’s office said the Whangārei proposal was a local initiative and there was no plan to expand its use more broadly.

“The Chief District Court Judge is currently gathering information on the nature of that [Whangārei] initiative and will be discussing it with the Chief Justice,” the spokesperson said in a statement.

“For clarity, there is no contemplation that courts will be required to begin and end court sittings with karakia.

“Karakia are sometimes said in courtrooms. This is generally at the request of the parties and agreed to by the judge once the lawyers for both parties have agreed.”

My letter included as a Schedule the communication from the District Court, Whangarei. Anyone reading it can see that it does indeed contemplate that courts — at least those in the North — will begin and end court sittings with karakia.

The impression given that information needs to be gathered by the Chief District Court judge is rather surprising. The communications between the Whangarei office and a practitioner included the provision of a copy of the karakia that would be read. The words of the Court officer and the image sent to the practitioner follow.

“What I should have said in my email and I apologise that I didn’t, is that the karakia is not tied to any religion or belief and is part of our cultural uplift. I attach the karakia below for which also has the translation,

Readers will see the handwriting at the bottom appears to be “Heemi Taumaunu et al.”
This seems to indicate that the karakia was composed by the Chief District Court Judge Heemi Taumaunu, plus others.

The practitioner's response to the Court officer included his comments on the claim that the karakia is not tied to any religion or belief. He said:

I accept that karakia is not tied to any particular religious denomination or belief but to the extent that any karakia includes animism then it would be peculiarly Maori. An example would be karakia developed for Matariki. The fundamental point is that karakia is religious expression. Lines such as 'Proceed into the present day, Behold it is the living world, Behold it is the world of light' have no meaning other than spiritual. It is Maori religious expression both in form and content: that is why the karakia in court is a Te Ao Marama initiative and that is how it provides 'cultural uplift'.

I agree with him.

My letter follows.

Dear Chief Justice, Madam Attorney and Minister

Karakia in judicial proceedings

1. On 26 March last, an email was sent to many Northland law practitioners. A copy is scheduled to this letter. The following extracts indicate what it concerned:

If you have had the opportunity to observe or partake in a Te Ao Mārama criminal or family court, you would’ve noticed court sittings open and close with Te Ao Mārama karakia. The purpose and intent of karakia tīmatanga is to bring everyone together and focus their minds on the kaupapa ahead, with the hope that everything flows smoothly and respectfully. We are looking to expand karakia tīmatanga to court-sitting event types that are deemed suitable by the Judiciary….

Once the judicial officer has been brought into the courtroom, the court would open with the karakia. In most cases, the karakia would be recited by the court registrar.

· The karakia will be recited in te reo Māori & English.

· Once the final matter of the day has finished, the registrar (or other person) would close the court session in karakia.

· Large prints of the karakia will be installed in each courtroom for all those present to use to read along to.

2. Counsel engaged in at least the first matter before the court must be present when the judge enters. Counsel engaged in the last matter for the day cannot walk out before the judge leaves the bench. Other participants in the process and members of the public involved in cases before the court are also affected.

3. As you will each well know, s 13 of the New Zealand Bill of Rights Act 1990 provides

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

4. In commentary on s 13, Andrew Butler and Petra Butler, in their work The New Zealand Bill of Rights Act a commentary, 14.5.5, p403, state:

The acknowledgement of an individual’s freedom of religion and belief and the consequential pluralism of beliefs, thought, and religion demands neutrality from the state and tolerance from its citizens. State neutrality means that it renounces any claim to knowing the truth and is impartial in relation to all religions or beliefs.

5. The neutrality demanded of the state is sadly lacking in what appears already to be in place in some Northern courts and is now proposed to be extended in the manner indicated in the scheduled email. I have been told that it or something similar is also already operating elsewhere in the country.

6. That this is an obvious contravention of the NZBORA is confirmed by leading authority, the Privy Council’s decision in Commodore of Royal Bahamas Defence Force and others v Laramore [2017] 3 LRC 645, [2017] UKPC 13.

7. The Bahamas Constitution provided:

22 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this Article the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

8. It is therefore very similar to s 13 of the NZBORA. In particular the requirement that "no person shall be hindered" correlates with "the right to adopt and to hold opinions without interference," because interfere means to interpose in a way that hinders or impedes.

9. The facts as summarised in the headnote (here broken into paragraphs) were:

Colours parades had been a tradition in the Royal Bahamian Defence Force since its creation. From 1993 to 2006, members of religious beliefs other than Christianity were given the opportunity to excuse themselves by falling out during the prayers and falling back in immediately thereafter.

On 9 November 2006, [these arrangements were changed and new arrangements] stated that, effective immediately, all personnel were to remain present for the conduct of prayers (which were always Christian in form) during ceremonial parades and morning and evening colours parades, that parade commanders and duty officers were to give orders for 'Parade off Caps' and 'Parade on Caps' before and after prayers during parades, and that members of the Defence Force who were not Christian would no longer be permitted to fall out during the prayers and fall back in when they had been said.

In 2007, the plaintiff [Mr Laramore], a petty officer in the Force who was a Muslim, requested to be exempted from all Christian activity in the Force and some days later he left a parade during colours ceremonies when prayers were about to take place. He was charged with disobedience, but before the resulting disciplinary proceedings were concluded, he brought proceedings in the Bahamas Supreme Court challenging the constitutionality of the 2006 Memorandum and claiming damages. …

The plaintiff contended that he was 'hindered in the enjoyment of his freedom of conscience' under art 22(1) of the Constitution of The Bahamas, ('the Constitution') which included his 'freedom … of religion' and freedom 'to manifest … his religion' in public and in private, by having to stand on parade during Christian prayers when in his view doing so breached his religious faith.

The Chief Justice upheld the plaintiff's claim on the ground that the 2006 Memorandum violated the plaintiff's freedom of religion, contrary to art 22 of the Constitution, and made the declaration sought. The Chief Justice also awarded the plaintiff $B10,000 damages for the breach of his constitutional rights. The defendants' appeal to the Bahamas Court of Appeal was dismissed.

They appealed to the Privy Council, contending that art 22 protected freedom of conscience only in a limited manner, that there was nothing in the arrangements for Christian prayers during colours parades that impinged on or affected the plaintiff's personal inner freedoms, that judged objectively there had been no hindrance 'in the enjoyment of his freedom of conscience', and any hindrance of the plaintiff's freedom of conscience was 'reasonably justifiable in a democratic society' under art 22(5) of the Constitution because it was in the interests of maintaining good order and discipline in the Defence Force that there was uniformity of behaviour.

10. The Defence Force's appeal to the Privy Council was dismissed. It was held (again per the headnote here again broken into paragraphs):

Freedom of conscience was in its essence a personal matter and whether there had been a hindrance of a person's enjoyment of freedom of conscience was to be judged by reference to his particular subjective beliefs rather than by what a particular religion prescribed.

A requirement to take part in an activity could be incompatible with a particular person's conscience, however much his internal beliefs were otherwise unaffected and unchallenged. It was not what the Islamic religion said that mattered; what mattered was the person's religiously-based beliefs and conscience and whether they were hindered by a restriction on his freedom of religion.

'Hindrance' was not the same as being prevented or forbidden because of a religious belief from taking part in a certain activity. The 'caps off' order could not be understood as a mere gesture of respect towards Christians, for whom it would have a deeper significance.

Having actively to participate in a Christian ceremony, in a way to which he in conscience objected, hindered the plaintiff in the enjoyment of his freedom of conscience, for the purposes of art 22 of the Constitution, because it was against his conscience to take part in the prayers which were part of regular colours parades and it hindered his enjoyment of his freedom to live, by his words and conduct, in a way which was compatible with his Muslim conscience ….

11. It is of note that the Chief Justice of the Bahamas, the Bahamas Court of Appeal and the Privy Council all affirmed Mr Laramore’s human right to freedom of conscience and its breach. It is of great concern that here in New Zealand a system has been established or is being set up which must inevitably infringe upon the conscience and beliefs of some people.

12. This is unprecedented. New Zealand’s judicial system has always, until now, operated with complete neutrality in relation to matters of conscience and belief. An example of the system’s respect for a person's enjoyment of freedom of conscience is the ability of a witness to confirm that the witness will tell the truth by either oath or affirmation (s 77 of the Evidence Act 2006).

13. The karakia proposal is an egregious departure from the tradition of neutrality. It is in conflict with the judicial branch's duty to uphold NZBORA rights and freedoms and consequentially it is also a breach of the rule of law. These circumstances call for the Chief Justice to take steps to put a stop to it as our judges cannot be permitted to engage in activities which are in contravention of the NZBORA. Judicial independence does not extend to non-judicial functions that are in contravention of the law.

14. The Attorney-General has a special responsibility for maintaining the rule of law. Because of its constitutional purpose of affirming, protecting and promoting human rights and fundamental freedoms in New Zealand, this special responsibility is especially potent in relation to the NZBORA. Whilst perhaps having no direct responsibility for the activities of either the Judiciary or the Ministry, the Attorney nevertheless has a vital role to play as the guardian of the government’s adherence to the highest of principles and ideals.

15. The Minister’s Ministry is implementing a proposal which should not be permitted in a free and democratic society which adheres to the rule of law. His responsibility to uphold the law demands that he instructs the Ministry to dismantle the structures already in place and to make it clear that further activities of this sort will not be tolerated.

Yours sincerely

Gary Judd KC

Schedule

From: Knight, Avala <Avala.Knight@justice.govt.nz>
Sent: Wednesday, 26 March 2025 10:06 am
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Subject: Te Ao Mārama Karakia - update

Tēnā koutou,

Te Ao Mārama continues to enlighten and enhance justice for all in our region. We seek to look at improving our ways of service to ensure all court participants feel seen, heard, understood and able to meaningfully participate in their court hearings.

If you have had the opportunity to observe or partake in a Te Ao Mārama criminal or family court, you would’ve noticed court sittings open and close with Te Ao Mārama karakia. The purpose and intent of karakia tīmatanga is to bring everyone together and focus their minds on the kaupapa ahead, with the hope that everything flows smoothly and respectfully. We are looking to expand karakia tīmatanga to court-sitting event types that are deemed suitable by the Judiciary.

We have identified some court hearings where the karakia would not be used, they are:

• Jury trials

• Pre-trials

• Registrars list

• Tribunals

• Judge alone trials

What would this look like:

Once the judicial officer has been brought into the courtroom, the court would open with the karakia. In most cases, the karakia would be recited by the court registrar.

• The karakia will be recited in te reo Māori & English.

• Once the final matter of the day has finished, the registrar (or other person) would close the court session in karakia.

• Large prints of the karakia will be installed in each courtroom for all those present to use to read along to.

When:

• Once we have worked through the feedback stage & any other actions, we would like to implement this change in time for Matariki.

Seeking your feedback:

The next step for us is to seek your feedback about the above, what court events you think should / shouldn’t include the karakia & if you have any thoughts about the roll out of this change. My apologies if I have missed anyone, please do share wider if needed.

You can provide your feedback to me directly & we would seek to have it by 25 April 2025.

Thank you very much for your attention to the above & we look forward to hearing from you.

Ngā mihi, nā

Avala

Avala Knight

Service Manager – Civil & Family

Whangārei District Court | 105-109 Bank Street

DX AX10087 | Whangārei

Ministry of Justice | Tāhū o te Ture

DDI: +64 9 983 5570 | Ext 55570 | Mobile: 027 211 2722

Website: www.justice.govt.nz