National Party Dodging Difficult Issue

Too timid (or woke) to act. Too cowardly to say they won't act.

On 17 April 2024 I lodged my complaint about the Tikanga Regulations. On 17 February 2025 I tried again. I believe my further submission was before the Regulation Review Committee on 5 March. The Committee has been silent since it heard oral submissions last October. The Committee is chaired by Labour’s David Parker. It has another Labour MP and three National MPs.

Neither ACT nor NZ First has Committee membership. The Act Party wrote to the Committee supporting my complaint. I believe New Zealand First also supports it but am unaware whether its support has been formally notified to the Committee.

Labour’s Minister of Justice Kiri Allan approved the Regulations in January 2023, so the Labour members of the Committee would not support disallowing them. That means it is up to the National Party majority on the Committee to push through a decision to put a motion before the House to disallow them. Or to cause the Committee to tell me and the country why the Committee rejects my complaint. To do something!

I conclude that the National Party either supports people who want to become lawyers being forced to learn about tikanga whose legitimating source is atua (“gods, ghosts, unexplainable phenomena, and representations of divine beings (usually named and often malign, especially if not treated with due deference”), or it doesn’t but doesn’t want to say so because that might upset people. So they and the Committee just do nothing, like ostriches with their heads in the sand hoping the problem will disappear.

Does the National Party not realize that its unwillingness to commit to anything involving difficult human and political rights

courts unpopularity for itself and its leader and drags the coalition government down with it?

Here is my recent supplementary submission.

17 February 2025

SECOND SUPPLEMENTARY SUBMISSION

concerning

COMPLAINT TO REGULATION REVIEW COMMITTEE

Regarding:

Professional Law Examination Tikanga Māori Requirements Amendment Regulations 2022 (“Tikanga Regulations”)

Introduction

1. I am the complainant. I made a supplementary submission in support of my complaint and gave oral evidence before the Committee.

2. I make this further submission because of developments this year.

3. The High Court’s decision in Dickson v Real Estate Authority, Registrar of Licensed Real Estate Agents, and Associate Minister of Justice [2025] NZHC 50 was delivered on 4 February 2025 in. Janet Dickson was a real estate agent who objected to completing a course titled Te Takano (The Seed), a course focused on Māori culture, language and the Treaty. She refused to take the course, her licence was cancelled, and she lodged an application for judicial review. The 4 February decision dismissed her application.

4. The Dickson decision does not assist the Committee’s deliberations because it does not address the relevant human right. The decision did, however, result in further information emerging in a Ministerial statement issued the same day.

5. On receipt of the judgment, the Associate Minister of Justice, Hon Nicole McKee, issued a statement which revealed that in February 2024 she had sent a Letter of Expectation to the Authority’s Board. The Minister’s 4 February 2025 Statement included:

“I sent a Letter of Expectation to the Real Estate Authority Board in February last year clearly outlining that CPD requirements should be relevant to the job of real estate agents.

“I advised the Board that I did not consider the mandatory CPD topic in 2023 – Te Kākano (The Seed) – to meet my expectation of being relevant to the real estate profession.

6. The quirks of the system meant that a Minister who had not been involved in the development of the requirements in question (which had their origins in 2018) and did not agree with what the Real Estate Authority (REA) had done, found herself opposing Mrs Dickson’s application for review and defending actions of the person who was the responsible Minister in 2018.

7. The third event of 2025 has been the renewed availability of Te Matapunenga A Compendium of References to the Concepts and Institutions of Maori Customary Law.

The High Court’s decision

8. The decision records at paragraph [160] that while Mrs Dickson’s statement of claim asserted inconsistency with both ss 13 and 14 of the Bill of Rights Act, the focus of her counsel’s submissions was on the right to freedom of expression under s 14. The High Court did not consider whether s 13 had been infringed. It considered and rejected the argument that there had been a breach of s 14, the right to freedom of expression.

9. I consider s 13 was the provision relevant to Mrs Dickson’s position. Section 13 states:

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

10. Mrs Dickson’s complaint was that forcing her to undertake the Te Kākano (The Seed) course on pain of losing her licence to work interfered with her right to freedom of thought, conscience, religion and belief, and her right to adopt and to hold opinions without interference. The judgment records at paragraph [2) that “She considers that Te Kākano would not add any value to the performance of her real estate agency work and says the course conflicts with her personal beliefs” (emphasis added).

11. As the decision does not consider s 13 of the Bill of Rights, it does not assist the Committee in relation to my complaint.

Minister’s letter of expectation shows complaint must be upheld

12. The REA is a Crown agent.[1] A Crown agent must give effect to government policy when directed by the responsible Minister.[2] The Minister’s Letter of Expectations complied with the government’s human rights obligations.

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.[3]

13. In compelling real estate professionals to undertake Te Kākano (The Seed), the state through its agent, the REA, had abandoned the neutrality required of it. The REA was not being impartial in relation to all religions or beliefs because it was compelling real estate professionals to be subjected to training in respect of a particular religious or belief system. The Minister was rightly demanding from the Crown’s agent the neutrality, the impartiality demanded of the Crown by s 13 of the Bill of Rights.

14. The Crown should show the same neutrality, the same impartiality, in respect of its citizens who wish to become lawyers as it has shown in respect of its citizens who are Real Estate Agents.

15. To recapitulate the position in respect of lawyers, from 1 January 2025 the Tikanga Regulations require the legal education degree course to include the teaching and assessment of the general principles and practice of Tikanga Māori | Māori Laws and philosophy. There is to be one paper for this subject, the same as for the subjects of contracts, torts, criminal law, public law, property law, land law, and equity and the law of succession. In addition, the Regulations require the inclusion of teaching and assessment of the general principles and practice of Tikanga Māori | Māori Laws and philosophy as relevant to the other subjects (contracts, torts, et cetera) and to the legal ethics course.

16. This is far more invasive than a 90-minute course in Te Kākano (The Seed).

17. The NZCLE is not a Crown entity so it cannot be directed. The government nevertheless has a responsibility in respect of the human rights of those of its citizens who wish to become lawyers.

18. The government actions revealed by the Minister’s 4 February statement, showing as it does a proper regard for the human rights of New Zealand’s citizens in stark contrast to the compulsion of the Tikanga Regulations, demonstrates to this Committee as an organ through which Parliamentary sovereignty is manifested that the grounds in Standing Orders 327(2)(b) (trespasses unduly on personal rights and liberties) and (c) (appears to make some unusual or unexpected use of the powers conferred by the enactment under which it was made) have been made out.

Te Matapunenga A Compendium of References to the Concepts and Institutions of Maori Customary Law[4]

19. This work, published in 2013, was out of print and therefore unavailable to me until its reprint at the beginning of this year. The Introduction explains the principles of construction of the Compendium. The compilers started with a list of terms, concepts, and institutions found to be in use in historical and contemporary Māori discourse. These became titles. They then searched a wide range of records wherein the title word had been used. These records were listed in chronological order, preceded by a preamble containing the standard general meanings for the title, followed by an Entry Guide.[5]

20. The Introduction proposes a definition of “law”:

A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of force or the construction of serious social disadvantage by an individual, group, or agency possessing the socially recognised privilege of so acting.

21. The definition aspires “to comprehend the social foundation of law,” [6] and is not dissimilar to the description of law given in Tikanga is not law, relied on in my complaint.

22. The Introduction cites from the 1608 Case of Tanistry, the concluding sentence of the quotation being, “In brief, custom is a reasonable rule, followed consistently and continuously by the people from time immemorial.” This and other material cited in the Introduction shows that to have legal status a custom as a habitual or usual practice must have become a rule of conduct, a rule which must be obeyed.

23. In terms of the definition adopted by the compilers. a rule must state what its subject must or must not do. This is where the Compendium fails to live up to its title. There may be exceptions but in general the titles are not linked to a rule of conduct. Perhaps in some cases a rule of conduct may be inferred, but to justify the claim that the terms drawn from discourse are “of Māori Customary Law,” the rule must be identified and the linkage shown. This diminishes the Compendium’s utility, but its discussion of the titles is nevertheless of value.

24. One such entry is atua or Atua. It confirms tikanga’s spiritual origins and nature.

25. I append pages 49 and 50 covering the Atua entry. The preamble indicates that the “primary meaning of ‘divine being’ is at the core of [the] term,” and that an atua “is normally invisible but may have visible symbolic or tangible manifestations.”

Thus in the 18^th century the term covered gods, ghosts, unexplainable phenomena, and representations of divine beings (usually named and often malign, especially if not treated with due deference). In the 19^th century (or earlier if the IO cult[7] predates contact with non-Polynesians) the term (spelt with a capital A) was adopted for the Abrahamic concept of God, and in the 20^th century (according to Ryan[8]) adopted, in lower case, to denote ‘virus’.

26. The Entry Guide states that atua were regarded as “the legitimating sources of law and custom (Tikanga [TIK 03]).” TIK 03 is at page 430 which is also appended. It is part of Sir James Carroll’s speech at a hui where he said, “Look at [our ancestors’] customs which weren’t created by the law, they sought them out themselves from divine and human sources and developed them among the numerous tribes.”

27. The same idea is present in the Statement of Tikanga. At the top of page 4 of my complaint, I said:

Tikanga is completely different [from, e.g., contract, criminal law]. Saying that it is law, as the Statement of Tikanga does, does not make it so.

The very commencement of Nature of Tikanga demonstrates that tikanga is not “law”.

It is the law that grew from and is very much embedded in our whenua (land)…. Tikanga Māori came to the shores of Aotearoa with our Māori ancestors, starting with Kupe and those on board the waka (canoe) Matahourua. In some traditions, tikanga merged with that already present.

The Compendium confirms the supernatural origins and nature of tikanga in slightly different terms.

28. As the Tikanga Regulations compel law students to study Māori law and philosophy, they compel law students to engage with the supernatural beliefs of a specific culture. This trespasses on personal rights and liberties and makes an unusual and unexpected use of the powers conferred by the Lawyers and Conveyancers Act 2006.

Conclusion

29. I submit that these further matters provide further confirmation that the case has been made for the Tikanga Regulations to be placed before the House to allow the House to decide whether they should be permitted to remain.

………………………….

Gary Judd KC

17 February 2025

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[1] Real Estate Agents Act 2008, s 11; Crown Entities Act 2004, s 7(1)(a) and Schedule 1, Part 1.

[2] Ibid, ss 7(1)(a), 103, 149K.

[3] Andrew and Petra Butler, The New Zealand Bill Of Rights Act: a Commentary, p 403, 14.5.5.

[4] Compiled, edited and introduced by Richard Benton, Alex Frame and Paul Meredith, Te Matahauariki Research Institute, University of Waikato; Te Herenga Waka University Press, Victoria University of Wellington, First Published 2013, Reprinted 2025.

[5] Pages 11-12.

[6] Page 14.

[7] There is no entry for Io. However, the Encyclopaedia of New Zealand, Traditional Māori religion – ngā karakia a te Māori, refers to debate about whether there was a supreme God in Maori tradition, centred around a God known as Io.

[8] P M Ryan, Reed Dictionary of Modern Māori.