Motions — Professional Examinations in Law Regulations 2008—Disallowance of Provisions

I move, That this House disallow the following provisions of the Professional Examinations in Law Regulations 2008: (a) regulation 1(3), definition of “Tikanga Māori Requirements”, paragraph (a); and (b) regulation 3(1)(a)(ii).

The motion of disallowance that I have filed, which the Business Committee has determined should be debated, is in accordance with the majority decision of the Regulations Review Committee. It is in regards to the Professional Examinations in Law (Tikanga Māori Requirements) Amendment Regulations 2022, which were made by the Council of Legal Education under the delegated authority given to them by Parliament, and which came into force at the beginning of this year.

I will read from the relevant part of the Regulations Review Committee’s report to the House, as the reason for this disallowance motion is ultimately very simple and the report clearly articulates it: “It is the view of the majority of the committee that it was an unusual and unexpected use of the Council of Legal Education’s powers granted to it by Parliament to require tikanga to be taught as a compulsory component of every other compulsory law subject where relevant. There is no precedent for this, and no other compulsory law subject that is not only a stand-alone compulsory law subject, but also a compulsory component of every other compulsory law subject. By definition that is unusual and unexpected, and the majority of the committee is of the view that this aspect of the regulations should be disallowed. For the sake of clarity, the majority does not take issue with the Council of Legal Education using the powers granted to it by Parliament to require tikanga to be taught as a stand-alone compulsory law subject, for the reasons outlined elsewhere in this report.”

Tikanga is increasingly referred to in Acts of Parliament and decisions of various branches of the courts, including the Supreme Court. In fact, a majority of the Supreme Court in the 2022 case of Ellis v R—three judges for and two against—stated that tikanga was the first law of New Zealand and decided that the court should abandon what it called “the colonial tests” for incorporating tikanga into the common law. That is the law of the land, unless Parliament were to determine otherwise, and it is only proper that tikanga is learnt at law school by all law students. All members of the committee were unanimously of the view that the Council of Legal Education had properly exercised the delegated powers that Parliament had given it to require tikanga to be taught at law schools as a compulsory stand-alone subject. The position of the committee differed, however, with respect to making it a compulsory component of every other compulsory law subject.

Some later speakers in this debate may criticise the fact that a majority of the Regulations Review Committee made this decision, rather than it being a unanimous decision. However, I would say that the majority’s decision on this point is an orthodox one intended to uphold the system of precedent and continuity in the history of the regulation of legal education in this country, which the majority has decided Parliament intended when giving the Council of Legal Education delegated powers to regulate the professional examinations in law. It is not unusual for majority decisions to be made on all kinds of issues in this House, including constitutional issues. One of many examples I could point to is the establishment of the Supreme Court itself, which was decided by a 63 to 53 majority vote in 2003.

This disallowance motion follows a complaint that was made to the Regulations Review Committee by Gary Judd KC, latterly joined by Thomas Newman. It is important to note that while the committee gave careful consideration to Mr Judd’s complaint and that of Mr Newman and a number of concerns that were quite properly raised for consideration by them, the committee ultimately did not uphold those complaints. However, a majority of the committee decided that a component of the regulations should be disallowed, albeit on different grounds to the ones that had been advanced by Mr Judd and Mr Newman.

During the time that the complaint was heard and until the time that the complaint was reported back to the House, the Regulations Review Committee was chaired by the Hon David Parker, and I acknowledge his considerable contribution to the consideration of this matter, although we did not in the end agree on all points. The committee recognised that submitters had ongoing concerns about the way that these amendment regulations may be perceived as intending to influence the law, rather than to provide for education on the law, and noted the reference that was made by submitters to speeches given by senior members of the judiciary, which they criticised.

The committee unanimously agreed to refer two examples of the speeches submitters had raised as a concern for consideration by the House, noting that the comity shown by Parliament towards the courts does not mean that the content of extrajudicial speeches, such as those, should not be discussed. It is important to note, however, that those speeches did not form part of the committee’s consideration of whether the regulations were properly made, which was very much focused on whether the secondary legislation complied with the grounds in Standing Order 327(2).

Finally, I would note that real care needs to be taken in the education of tikanga, because tikanga is very personal to whānau, hapū, and iwi, who rightly do not want to risk ceding control over their own traditions and the custody and development of their own tikanga to law schools, the judiciary, or Parliament. My motion of disallowance respects those traditions and leaves it to the discretion of law schools to teach tikanga how and where they deem it appropriate to do so but no longer makes it a compulsory requirement in other compulsory law subjects. Thank you, Mr Speaker.

The question is that the motion be agreed to. Just before I call the next speaker, the Business Committee has determined this will be a one-hour debate with 10-minute calls. I’ll endeavour to distribute the calls across the party, giving precedence to those who are on the committee. If anyone wishes to split a call, please feel free to approach the Speaker, and we can make that arrangement.

Mr Speaker, ngā mihi o te wā Matariki e haramai nei ki a koe.

[Mr Speaker, compliments of the upcoming season of Matariki to you.]

As the chair of the Regulations Review Committee, I present our final report on the Complaint about the Professional Examinations in Law (Tikanga Māori Requirements) Amendment Regulations 2022.

Tikanga Māori is the first law of New Zealand. The report sets out why and is unanimously endorsed by the committee. The only point of contention at the cross-partisan committee that is the Regulations Review Committee, and the reason for Labour’s vote No at the end of this debate, is about the very narrow grounds for whether tikanga Māori was rightly required in compulsory papers studied by students at law schools.

This complaint was brought under Standing Order 327(2)(a), (b), and (c), which relates to whether the regulations are consistent with the empowering Act, whether they unduly trespass on rights and liberties, and whether they involve an unusual or unexpected use of regulation-making powers.

The point of contention is whether the ideas of the majority, that the use of those powers is unusual and unexpected, is worthy of discussion here. But it is in narrow grounds and one that this debate is confined to. Comments from members of the Regulations Review Committee that stray outside of that, into the place of tikanga Māori and the law, or the teaching of any subject by a university or professional body is well beyond the scope of the committee’s inquiry.

The committee did not find the claim under Standing Order 327(2)(a) that the regulations were inconsistent with the enabling statutes to be made out. However, we considered that concerns raised under paragraphs (b) and (c) were appropriate for the committee to examine and report to the House on, and that is what this report does.

The committee heard from the New Zealand Council of Legal Education. They are the professional body that is at issue here. It is a statutory body responsible for setting the professional requirements for entry into legal, professional work. They mainly handle the regulations that apply to young lawyers once they have graduated from their legal degree, except they do have a function to determine what is included in a legal degree that all New Zealand lawyers are required to undertake. The council, in this case, had introduced regulations requiring that all candidates for admitting complete the course, including tikanga Māori. We commend the council for following a multi-year, transparent process, consulting widely with law schools, the judiciary, the New Zealand Law Society, the Bar Association, and student groups. No stakeholder at that point in the consultation process opposed the inclusion of tikanga Māori in the legal education requirements for the degree taught at New Zealand law schools. That is important because the process was careful and thorough and it is useful factual background for the House to understand how deliberately the council engaged in that process of inclusion.

The decision to include the teaching of tikanga Māori in legal education was based on the clear and growing relevance and application of tikanga Māori in New Zealand law. That is uncontentious. They cited not only the legal obligations in Acts such as the Resource Management Act, the Oranga Tamariki Act, and Te Ture Whenua Māori Act but also the approach of our courts. It’s useful to note those cases here: Takamore v Clarke, Trans-Tasman Resources, Ellis v R, and the more recent case concerning the Pouākani Inc., where tikanga is not only symbolic but used in legal reasoning. It applies not only in our courts but here in this House.

The committee accepted that the council made its decision on professional grounds, not on grounds of culture but that all competent lawyers in Aotearoa must understand what the law is, as it is, at the time it is taught. Tikanga Māori is now part of the New Zealand landscape.

I want to be clear on the committee’s intentions in the report. The report is a statement in support of the inclusion of tikanga Māori in legal education. It is certainly not a signal that Parliament should have any role in deciding how and what is taught at universities or in professional education, whether that applies to lawyers, engineers, or doctors. Universities and professional doctors can do—and, where appropriate, should—include tikanga Māori in their curricula. Many already have those requirements and they should not change after today’s debate.

The committee’s findings are narrowly directed at the legal question of whether the council’s delegated powers were used in the way that Parliament expressly contemplated. Our concerns—that is, on the Opposition’s side of the House—relate specifically to the use of the regulation to make what may amount to significant policy decisions, rather than going through legislation.

We will vote No to this motion. Labour supports some of the findings of this report. We do not support the finding of an unusual or unexpected use of the regulation-making power. We also are uncomfortable with the Government’s approach to this issue. We believe that if the Government sought to overturn the council’s decision or to restrict the teaching of tikanga Māori in universities, then the proper path would be to introduce a bill. The Government has that power and it has used its majority in the Regulations Review Committee setting to, effectively, do that: change a policy as it affected law students and their educators. That means engaging with the public, if the Government was going to go down that route, and going through a select committee and being transparent about the policy debate and the rationale for change. That doesn’t happen at the Regulations Review Committee level. While I am an advocate for the function of the Regulations Review Committee, I do not believe that questions of policy should be debated and decided in that forum.

Instead, the Government has chosen to use a disallowance procedure, a mechanism designed to check whether delegated legislation fits within Parliament’s grant of power. It is not a substitute for policy making and it is not intended as a back door to reverse regulatory decisions that were lawfully and transparently made.

To explain this simply: the tension in the system at the Regs Review Committee is that when Opposition members bring a motion for disallowance and they convince the Government of the power of their argument, it is meant to hold in this House; that is not what’s happened here. Government members have done that. Governments have another way of changing the law.

The disallowance mechanism is an important constitutional safeguard, but it should not be used to override the independence of statutory bodies when they are acting within their mandate. In this case, the council made a professional judgment about legal training in response to a legal system that is evolving.

We also heard concerns that requiring students to learn about tikanga Māori infringes on their personal rights. This was roundly rejected by the committee, and that is a non-contentious rejection. Professional qualifications are built on core competencies. Just as students must learn criminal law, contract law, ethics, and public law, they may now also be required to learn about tikanga Māori, not as a belief system but as a body of law relevant to their practice and their understanding as lawyers in New Zealand.

Legal education has always evolved. In the 1990s, ethics became a core requirement. My colleague here the Hon Duncan Webb is a celebrated professor of ethics at the New Zealand law school level. It is appropriate that those things develop when our changing expectations on the profession develop. It is not appropriate for Parliament to tell universities what to teach, even though some of us are experts on that. It is better for universities and professional bodies to make those decisions based on the needs of the students in front of them at the time. It is a core democratic principle that universities act as the critic and conscience in our democratic system and that they are independent from the interference of Parliament.

To conclude, tikanga is law, and this report does not find the regulations improper or unlawful. The committee’s report draws attention to a narrow constitutional issue, not a cultural one. The role of tikanga Māori in our legal and education systems is rightly dealt with by the universities themselves, not through the backchannels of parliamentary disallowance. But I thank the committee members for their thoughtful engagements, the officials for their support, and the submitters for their clear and constructive contributions. Labour votes No.

I rise on behalf of the Green Party of Aotearoa to also oppose this particular motion. Now, let us be really clear about this: this is a gross misuse of the empowering provisions as set out in Standing Order 329 and also the Legislation Act 2019 section 117 in terms of the power that is granted to a member of the Regulations Review Committee to disallow secondary legislation despite all evidence and all advice from the sector which this particular part affects.

Now, let’s unpack what that means, and let’s first unpack the context and the landscape that we’re dealing with in terms of why the tikanga regulations came about. These particular regulations have gone through years of consultation. They come from the fact that common law, which is the fundamental element of our judicial system, has moved on and has developed through the ages to include elements of tikanga as part of this process. It is now an intrinsic aspect of our New Zealand common law and legal system. You cannot distinguish that. You cannot pull that back.

All of this comes from a complaint from people who feel—who know and who have not yet come to terms with the fact—that they are no longer relevant. And if they have an issue with a judgment that has been quoted here—and I’ll come to some of the judgments later—they should take it up with the court, take it up with the people who made those decisions, not disallow the secondary legislation that simply is moving with the time. And they’re moving in the context of what the communities and what the sector is asking for right now.

There are two reasons why this was proposed in the first place, in terms of the tikanga regulations. The first one was the fact that, simply, legislation now includes more references to Te Tiriti o Waitangi—which, by the way, this Government is mostly removing or altering—as well as common law. Now, we have seen cases such as Paki v Attorney-General and Takamore v Clarke—all of these make references to tikanga Māori as an intrinsic aspect of the way we interpret our law and our common law, particularly around torts, in Aotearoa New Zealand. Some of those things are simply not done through legislation; they are done through case law. On top of that, we have seen the member opposite mentioning Ellis v R. Now, in the Ellis case of 2012, heard by the Supreme Court, as a matter of fact, the decision that was made on that case was made after the consultation, and the decision that was made here on the tikanga regulations. So it actually wasn’t even relevant to the regulations that we are disallowing at this stage. That’s just one part of it.

The second part is the need of the sector. The New Zealand Law Society, the New Zealand Bar Association, the New Zealand Law Students’ Association, law schools, and the judiciary—all as experts; every single person who would be affected by the tikanga regulations has spoken and none of them stated a contrary view to the inclusion of the tikanga regulations we are discussing here.

As a matter of fact, the legal counsel has done everything within their power, that is within the correct process of the empowering provisions under the Lawyers and Conveyancers Act, to make this regulation and to make this secondary legislation. They’ve done the work, they’ve done the consultation, and they’ve listened to the needs of the communities, of the sector, and of the ever-changing landscape of common law in Aotearoa New Zealand. All of that—all of that—can be removed by one person; one person from the Regulations Review Committee, who is pandering to the complainant. All of that work, gone. That is what I mean when I say this is a gross misuse of Standing Order 239 and section 117 of the Legislation Act 2017.

But let’s talk about the broader issue that we are seeing here. The member opposite—Joseph Mooney—mentioned a number of times that this is done by majority on the Regulations Review Committee. I think the word “majority” should not be underestimated. For a committee like the Privileges Committee—which is traditionally non-partisan and tries to build consensus decisions—for people, and for the Governing parties to use “majority” as a way of forcing through their political agenda and politicisation is problematic. That’s simply not how the Regulations Review Committee and the Privileges Committee have traditionally operated.

I do have serious concerns about the role of these committees in the future if we have set up a precedent, here, of being able to introduce rulings by majority of the committee to do things like presenting an unprecedented punishment for members of Parliament, and to disallow secondary legislation despite the fact that the empowering provision and the people responsible—who are independently appointed, I might add—have done everything they can to ensure that the regulations that they’ve set out are within the law and within what they’re able to do. I am concerned at the fact that the majority has decided to interpret the unexpected and unusual use of power in the way that they would like to see it being interpreted, not in a way that is in consensus with the committee or with the evidence-based aspect and evidence-based information that we’ve got from the submitters and from the sector. This is a concern.

When we are looking at this, what is the role of tikanga Māori? What is the role of Te Tiriti o Waitangi? It seems like, based on what we’re seeing in the House this week, we are looking at a Government—you know what? Frankly—because of this particular move, the motion that we’re voting on today—we too can politicise it. What we can say is that this is a Government that would hate—hate—to see Māori get ahead. They would hate to see any aspect of Te Tiriti o Waitangi, kaupapa Māori, te ao Māori, or tikanga Māori being respected in Aotearoa. They would hate to see indigenous people in Aotearoa New Zealand get ahead. They would hate to see the fact that we should be able to uphold our international obligations like the United Nations Declaration on the Rights of Indigenous Peoples. This is what you will see. This is what you will continue to see. I’m sure we’ll see a lot more of this going forward. We will be here to hold this Government accountable each step of the way.

Now, even if you’re looking at some of the stats—I mentioned some of the collectives before who did not have any contradictory views about this. In 2023, the law council conducted a survey of students: 85 percent of the students—the majority; more than majority—say that tikanga Māori is important in the understanding that they have of the law of New Zealand, their understanding of common law, and just their understanding of the legal ecosystem that we are currently operating in. The majority on the select committee—i.e., this Government—didn’t take any of that into consideration when they made this decision, when it decided to trigger the disallowance of this secondary legislation.

The members opposite talk about democracy. Now, does democracy mean that we don’t hear the voices of our people despite the overwhelming majority? Does democracy mean that one person can make that decision on behalf of everyone else despite the work that has been put into this? I don’t believe that’s what democracy means.

This is a flippant disregard for the operation of this House and for the process of this House. It’s a blunt tool that we do not need, so the Green Party of Aotearoa New Zealand will not support this motion.

Thank you, Mr Speaker. I’m taking this call on behalf of ACT to support the motion moved by Joseph Mooney which is that this House “disallow the following provisions of the Professional Examinations in Law Regulations 2008: (a) regulation 1(3), definition of ‘Tikanga Māori Requirements’, paragraph (a); and (b) regulation 3(1)(a)(ii)”. Before I talk about the background and also our reasons for supporting this motion and also what ACT believes in, I just want to say to the members—those who just spoke before—that the Regulations Review Committee is not Government. There is a difference between Government and the Regulations Review Committee. That is a decision made by majority, by the Regulations Review Committee. And if there is no consensus, that is how we operate, and it’s better that the member learns that.

What we would say is that we support this motion, but the ACT Party would like to go further than this; that is, to disallow all of the provisions of the Professional Examinations in Law Regulations 2008, introduced by the Professional Examinations in Law (Tikanga Māori Requirements) Amendments Regulations 2022. The ACT Party doesn’t have representation on the Regulations Review Committee, but my ACT Party colleagues and I have been very closely watching the progress of this item on the agenda of the Regulations Review Committee.

Now, coming to the background, I want to commend Gary Judd KC for raising—

Dr Lawrence Xu-Nan: Of course you do.

Dr PARMJEET PARMAR: —this very—of course, yes, I will—important issue, and bringing this issue to the attention of the Regulations Review Committee. I also want to commend all the members of the Regulations Review Committee for working on this. This was in April 2024 when the Regulations Review Committee received a complaint about the Professional Examinations in Law (Tikanga Māori Requirements) Amendment Regulations 2022. The amendment regulations were made under section 278 of the Lawyers and Conveyancers Act 2006 and it amended provisions of the Professional Examinations in Law Regulations 2008.

We note that the amendment regulations were made on 5 May 2023 but had a commencement date of 1 January 2025. So the case that was made by the complainant was that the amendment regulations are not made in accordance with the Act’s intention, because they extend beyond legal work and the provision of legal service, and he stated that tikanga is not law and that the amendment regulations are an unusual or unexpected use of the powers conferred by the Act because, in his view, they are unprecedented.

The members of the committee would have heard his submission and those who were not on the committee like I was not on the committee—I would say that if you listen to the reasoning that Gary Judd KC made, then it makes sense why tikanga should not be a part of this law degree. I would like to quote a bit of his submission. This is a very, very small section from his submission that I would like to read out so that members can see why it makes sense to completely disallow these provisions. I’m reading this section from the submission: “Introducing tikanga is also contrary to the rule of law. Laws must be publicly promulgated, clear, accessible and generally applicable to all persons. They must be prospective, stable and applied consistently and impartially by officials and the judiciary. Tikanga does not satisfy any of these requirements.”

Dr Lawrence Xu-Nan: Just because one person doesn’t understand.

Dr PARMJEET PARMAR: So these were the reasons made by Gary Judd KC—and that is how the process works, Mr Lawrence Xu-Nan. That is how the process works. So the complaint came to the Regulations Review Committee, and the Regulations Review Committee looked into this issue, and that is the conclusion the Regulations Review Committee came up with. But we are saying we would like to go further, as I have said before, because we believe that our legal education shapes the future of our legal system and we want to see that our lawyers have that impartial view towards our justice system. By mixing legal aspects with culture, there is a risk that we will be undermining the legal objectivity that is needed in legal principles.

Mariameno Kapa-Kingi: Utter rubbish.

Dr PARMJEET PARMAR: It’s not rubbish. I would also say this: for the legal profession, it’s very important they uphold the values of justice, fairness, and accountability, and when you bring culture into it, it becomes very challenging to be impartial because that brings in a subjective interpretation. It brings in subjective interpretation, and we do not want that kind of subjective interpretation in our legal system.

In this Parliament, for example, we make laws. We don’t create cultural beliefs. We do not create cultural practices; we make laws here. So there is a clear, clear difference between cultural beliefs and legal obligations. There is a clear difference between cultural practices and laws that we make. We cannot mix two things, because what we want to see is that our legal system sees everybody in the way they should—exactly the same, irrespective of their culture, irrespective of their ethnicity. The justice system should serve all individuals irrespective of their culture, irrespective of their ethnicities. [Interruption] Yes, I know some members have problems with that, but that is what we believe in.

It’s very important that people have trust in our legal system and people will not have trust in our legal system if our legal system starts judging people on the basis of their ethnicity.

ASSISTANT SPEAKER (Greg O’Connor): Just for those members with that continual commentary: the good thing about this debate is everyone has the opportunity to stand up and take a call. I’m having difficulty hearing this member. Also, that includes conversations on my left here, so carry on.

Dr PARMJEET PARMAR: Thank you, Mr Speaker. We also are aware that this is an issue that has not only come from one complainant but there was a submission as well as supporting this complaint, and also there is other correspondence that we have received from a number of people, those who are concerned about this issue. So I actually think that it’s really good that someone has come forward and put this complaint to the Regulations Review Committee, because we received so much correspondence about so many different issues but we don’t see people coming to this level, to select committee, to put their concern forward so that a select committee can examine that concern.

So, in this situation, this concern has been examined and by majority a motion has been moved and, as I said, we support the motion, but we would like to go further in this case and I have explained what we mean by that. And here I want to say this: it’s very important that we maintain the integrity of our legal system; by mixing cultures, we will be risking the integrity of our legal system. Also, it’s not about one culture; we are saying that no culture should be mixed; no culture should be mixed. And cultures evolve—cultures evolve. Cultures are not consistent. So our legal practice should be based on the laws that we have in our country, not on the basis of the cultures and the cultures that evolve and how we are becoming multicultural. It shouldn’t be on that basis. So that’s why it’s very important we keep cultures separate from our legal system.

Hon Member: You might be able to.

Dr PARMJEET PARMAR: I would suggest this to those members there: that by keeping tikanga Māori separate, by keeping it distinct, actually you will be giving it better significance. By mixing it, you’re diluting the significance of tikanga Māori and also compromising the integrity of the legal system. We are very keen to preserve the integrity of the legal system and that is why we support this motion.

I again repeat that we would have liked to go further to disallow all of the provisions of the Professional Examinations in Law Regulations 2008 introduced by the Professional Examinations in Law (Tikanga Māori Requirements) Amendment Regulations 2022. Thank you, Mr Speaker.

I rise on behalf of the New Zealand First Party to speak in support of this motion, and I think it’s important to step back for a moment and get some perspective on what is being debated here. The question that was raised by the Regulations Review Committee was whether these regulations were properly made. They have taken time to analyse those positions, and this is a perfectly legitimate discussion to be having and it is perfectly legitimate for this motion to be brought to this House.

We have had a lot of conflation of issues here, and I think that we should just pause for a moment to clarify that tikanga is not being excluded. Tikanga is still a subject that will be allowed and will continue to be allowed, and its recognition by the committee is noted. This will be an important part, and—to quote the member opposite who said this—it is part of the New Zealand landscape. But we must challenge it in this discussion when we say that it is New Zealand law.

The member who put the motion, Joseph Mooney, was very clear about the fact that we are talking about tikanga, which is personal to hapū, to iwi, and to individuals. This blanket application of tikanga, as if we all agree—as we see in this House, Māori in this House do not necessarily agree. They do not necessarily accept the tikanga that one practises is the tikanga that I will practise. This ownership of tikanga is a conflation of the principles that we’re trying to deal with here.

So, as has been said, this introduction of tikanga as a compulsory subject component is fine, but we have talked about all of the different components of compulsory study that make a law degree. We have talked about all of the different essential study topics that are made into this degree. The purpose of this study programme is to produce competent, qualified experts in law. That is the point of this study programme. So we will produce lawyers who will have tikanga awareness, but inserting tikanga into the compulsory component of every single subject is unnecessary. It’s not relevant. It’s not important, because what we need in a law system is lawyers who understand the complexity of every individual component of law.

When you have a victim who is going through a traumatic process, you want a lawyer who knows exactly the details of the law of that criminal prosecution. If you’re establishing a business or if you are growing a business and you need to take something to court around your business practices about the development that you might be doing, then you need someone who knows all of the intricacies of that law. If you are taking an employment matter and you have an issue to do with your employment rights, you want an expert in the field of law that you are dealing with.

Hon Rachel Brooking: What about a dead body?

Hon CASEY COSTELLO: That is exactly the component—and a dead body was just raised. That’s exactly why the tikanga sensitivities are included in these subject topics. But it does not have to be a compulsory component in every single study topic. This is the part that we’re talking about.

Then we had this whole conflating of Te Tiriti o Waitangi obligations. That is not what is being debated here. What is being debated is this motion, and we want to put all of this emotion in, because then we lose track of what it is specifically we are talking about. We are talking about a motion that asks: were these regulations properly passed? Therefore, we’ve reviewed them and, therefore, the committee has made a recommendation.

What is frightening in this debate is that we have been told yet again by one party in this House—which is the party that doesn’t like profit, and which now does not like majority rule—it now does not like the idea that a majority can make a decision in this country. So every single citizen of New Zealand should be very worried that we are now dealing with a political party that doesn’t want majority rule. So what is the option that is being presented here—that the minority rules? I don’t know if that is a subject that we want to go down, but we hear this a lot. We’ve heard from members across the other side of the House of the tyranny of the majority. Well, I’m not sure if you know this, but majorities don’t do tyranny very well; minorities do tyranny very well, but not majorities.

So let’s bring this back to the point. Tikanga is not law, and let’s be very clear about it. Tikanga might be important to inform your decision making, tikanga might be important to understand the sensitivities of your client base, tikanga might be important to deal with some issues around the end of life—it may be important in a range of subjects. But tikanga itself is not law.

Tikanga is not, as was put forward previously, the first law of this land. Tikanga was—if you go back to those principles—an individual belief system within each iwi and hapū. It was not a collective identity across the country, and, therefore, you choose to select how you promote this position.

Then we come back to what is at debate here. It’s a simple motion. It’s a motion that asks: were these regulations properly made? The Regulations Review Committee has, rightly, analysed this. They’ve taken on board all of the considerations, and they have said no. They have brought this motion to the House to be debated on the basis that there were significant concerns about what was being proposed here, and this is the part that we have to be considering here in the House. This is about how the rule of law applies, and this is exactly the point we’re debating: that the rule of law—the rules in this House, the rules of our democracy, and the laws that we pass in this country—has to be clearly understood, clearly appreciated, and clearly acknowledged so that they can be debated. It’s not the moving, vague target that tikanga can be, but, actually, something tangible that’s written in black and white and that is consistently applied across the country, and this is the part that we’re dealing with here.

This is why it is so important that, yes, tikanga is being recognised. The committee has recognised it. It has said that it is perfectly acceptable for it to be a compulsory component. But to insert it into every single compulsory part of the study programme is just unnecessary and unreasonable, and it goes back to the basic principle that tikanga is not law.

It is important, as we discuss this debate, to consider all of the components, and this criticism of Gary Judd KC—who is a highly experienced lawyer with decades of experience. He has put a logical argument forward for the committee to consider, the committee has considered it, and it has made those recommendations to this House.

It is worrying to me that when we talk about how we are making decisions, and how dangerous it is to have a majority decision—this is not removing anything from the study programme. We have highlighted the fact that it is still a compulsory programme. We can get all emotional and we can debate all the airy things that might or might not happen, but at the core of it, exactly what is being desired is being given. Tikanga will be a compulsory component of this study programme. All that is being removed here under this regulation review is that it will not be a compulsory component of every single study unit.

So in this House, please let us have some perspective on what we’re debating here. Please let us have some perspective on what we are trying to achieve here. This is not a complex issue, and it is not to be conflated with a whole lot of other issues that are causing emotion across the House. This is about a simple recognition that the study programme of law is important to this country, it’s important to moving this country forward, and it’s important that those who study come out of that programme fully competent to practise law. They will have that component that you’re so committed to ensuring is delivered, but in their other compulsory subjects. They will be competent in that particular topic without it being conflated with a whole lot of other surplus information that, again, may be differentiated, depending on where in this country you are from, which hapū you relate to, and which iwi you identify with. This is individual, and, therefore, I have absolutely no hesitation in supporting the motion.

Thank you, Mr Speaker. It’s nice to hear the reckons of various members around the House on what should be in a law degree. I guess I am perhaps well placed to make some comments, having actually taught a law degree for some time. Do you know what I would say? I don’t have reckons on what should be in a law degree; I’m going to leave that to the Council of Legal Education. I think three judges, five senior lawyers, two law students, and all the deans of law are pretty well placed to make decisions about what should be in a law degree. That’s the funny thing here; this is why the Regulations Review Committee has overstepped. The powers are clearly set out there in the legislation and, ultimately, what we have here is that a majority of the Regulations Review Committee, as we heard from Parmjeet Parmar and Casey Costello, don’t like the regulations.

This is why we set up expert bodies. We set up expert bodies because we trust them to make good decisions in their expert area. There is no suggestion that this was outside of their powers. To say that it’s some unexpected use is perplexing to me. I just want to say, in terms of teaching adoption law, I don’t think you can do that in a way that is New Zealand without having an understanding of the tikanga of Māori family dynamics and whāngai. In terms of teaching property law and resource management law, where you have to take into account the local iwi’s interests and customary rights, I don’t think you can do that without having some understanding of tikanga. If you’re going to teach criminal law and sentencing law, where half of our imprisoned population are Māori, and what the appropriate approach to a rehabilitative sentence might be, I don’t think you can do that without some appreciation of tikanga.

The other thing is teaching method. There are two ways to teach a subject: one is by having it put in subject pots, and the other one is called a pervasive method, where you spread it out. The pervasive method is what the Council of Legal Education has adopted, at least in part, here. In terms of how you teach a law degree, not just what you teach but how you teach it, I wouldn’t presume to know better than three High Court judges, five senior lawyers, two law students, and all of the law deans. I think it is arrogant of this House to assume upon itself rule-making power, because the legislature delegated that authority to this expert panel for a reason. It’s disappointing.

Let me, before I close—because I’m only taking a short call—I want to identify the actual clause that party is striking out. This is what the degree course must include. 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 the regulations. And there’s a list of subjects. It’s tikanga relevant to the subject. It’s not that hard. That’s what we’re striking out. That’s what we’re usurping. We’re telling law schools, lawyers, judges, and professors how to do their job. I can’t think of much more arrogance than that. That’s why we won’t be supporting this overreach, this misuse of a disallowance power in this House today.

Kia ora, Mr Speaker, tēnā koe; tēnā tātou e te Whare. I wanted to jump up several times, so I appreciate the ability, the opportunity to take this call, as you might have heard in some of the discussion earlier. Just a teaching moment, if I can, to say this: prejudice plus power. Prejudice plus power equals racism. Prejudice plus power equals racism, which equals arrogance, which equals ignorance. I want to start my discussion with those as teaching moments for the House actually, because when I listen to this—particularly the nonsense on my left—it boggles me just how deep ignorance and racism can run. And it’s so casual, the racism that I often feel on my left.

But I’m going to start like this. When my tūpuna traversed Te Moana-nui-a-Kiwa, arriving in Aotearoa, they brought with them tikanga, the sovereign legal system of our whenua. So there’ll be Māori words there mixed with Pākehā words that—I’m not sure everyone will appreciate those, but they brought the sovereign legal system of our whenua. This system served our people for nearly a millennium prior to European arrival. It is no mistake that in 2022, the Supreme Court affirmed that tikanga Māori is the first law of this land. The first law of this land. Obviously, I don’t need a Supreme Court to confirm that, what I’ve always known to be true, but that affirmation is an absolute necessity for the members of this Parliament who now question the status of tikanga Māori and its place in curriculum. If Parliament’s own institutions can recognise the status of tikanga Māori—notice that there’s a little bit of fuss going on at the moment, particularly through the Privileges Committee—then it should follow, as a matter of simple logic, that its subjects do the same. It is critical that we ensure our law curriculum reflects and aligns consistently with the Supreme Court’s recognition of tikanga Māori as the first law of this land, of our land, of your land, stolen or otherwise. While it would be consistent for the coalition Government to ignore evidence and expert opinion, I implore my cohort across the way to actually consider evidence in their debate this time around.

Tikanga Māori—and I was hearing it expressed in a number of ways, particularly just across in the corner there, and there were some points in there which I could even connect with, up until this expression that tikanga isn’t really a “thing”. It might be a nice, you know, attachment. It might have some good value as a cosmetic, but it has no fundamental use. What that most definitely tells me, is that the level of ignorance—probably, maybe by choice, I’m not sure, but nevertheless—is so fundamentally ignorant. Therefore, when you’ve got that deep level of ignorance, you have what is called an “already, always listening”—you have an “already, always listening”. Therefore, you can’t help where you land, because your ignorance is so fundamental you’re going to land at the place that you were always going to, which is without real understanding and knowing. I picked it up also in the debate when te reo Māori was being used, because without understanding those things, or some understanding or appreciation, or respect and acknowledgment of it, you are also lost. You are lost to the ignorance that you carry quite comfortably, because it keeps you comfortable.

Where to now? Tikanga Māori is the pathway to justice. It is a leading solution to the injustice and inequity that is embedded into the colonial structures imposed upon our whenua. There is no denying the facts: our criminal justice system is institutionally racist and fundamentally unfit for purposes in Aotearoa. Māori suffer unequal outcomes at every turn. We are more likely to be stopped, to be searched, and—I think I heard this expression the other day—charged with “DWB”, or “driving while brown”. Those things are real, and I want to note them at this particular—

Simon Court: No, that is not a real charge.

MARIAMENO KAPA-KINGI: —to be arrested and convicted than any other group in Aotearoa—[Interruption] I’m sorry, there’s a bit of nonsense going over here, so I might ask him to take a break. Though we make up just 20 percent of the population, we represent 37 percent of those that are proceeded against by police, 45 percent of all people convicted, and 52 percent of the prison population. So with all of those numbers, “driving while brown” is a thing.

If we accept the facts, if we know that Māori disproportionately pass through the judicial system, then it becomes essential that those trained to operate within that system—our lawyers—are equipped with an understanding of tikanga Māori. Without such training, our systems will continue to oppress our people and exacerbate the reality that Māori are one of the most incarcerated peoples in the world. That isn’t an accident; that is deliberate, and that is all what I’ve shared before—particularly to the one on my left; don’t know whether he’s listening. At the very least, lawyers trained in tikanga will be better practitioners, attuned to the needs of the people without the shackles that come from operating within a legal framework that has enforced its own version of what is tika since its arrival in this country. To label this and the teaching of tikanga Māori into law as “cultural indoctrination” is hypocritical. It is a disservice to all those who have endured the cultural indoctrination of the current law curriculum, if that’s the way we want to be viewing education. It is a limited way of thinking, it’s backwards, and it’s bad for our health, Joseph, it is bad for our health.

So I guess I just want to say, thank goodness for our mokopuna that are coming. I look forward to it—from both sides of the House—because they will be woke, they will be smart, they will be ready, and they will correct all of the nonsense that’s been imposed and driven through this current Government’s mind-set, which is “Māori are bad. Lock them up. Put them”—oh, and here’s the housing. OK, this is our housing, this is the Government’s housing policy: “Look, we’ve got 200 more beds, but that’s our housing policy. And, oh, they’re houses, they’ve just got bars on the windows.” If that’s your policy, if that’s how you see us, you will suffer for your decisions, and thank goodness for your mokopuna in the House that’ll correct all this nutty, divisive, crazy, racist behaviour. So buckle up, tātou. Kia ora.

I wanted to contribute, just briefly, to speak about the grounds on which this proposed dissolution is purportedly being hung. Good grounds to hang a dissolution are potentially 327(2)(a) of the Standing Orders grounds. That is not something that this committee considered. There was no finding there. Instead, the majority of the committee are hanging this significantly constitutional, important decision only on Standing Order 327(2)(c), “unusual or unexpected use of … powers”.

Let’s make the point about what the committee did not find. It did not find that the regulations were “not in accordance with the objects and intentions of the enactment”. It did not find that the regulations are unlawful. No. So let’s flip that. The regulations are within the scope of the objects and intentions of the Act. The regulations are lawful. The only thing they’re hanging this on is that an “unusual or unexpected use of … powers” has occurred.

So let’s look at that. The committee’s concluding comments suggest the only way to determine whether something is unusual is whether it’s been done before, but my sense is that what is or isn’t unusual should tie not only to what has been done in the past in relation to compulsory programmes but also to the intention and scope of the empowering legislation itself. In short, just because a power hasn’t been exercised in this way before does not mean that the power is an unusual or unexpected way to exercise it.

In many ways, if you were to read regulations in the way that the majority appear to have, this would potentially be limiting the authority of executive decision makers who hold their decision-making powers now. To suggest that their powers should only exist within the boundaries of ways in which their predecessors had exercised those powers—that can’t be the case, particularly when considering secondary legislation that might need to be stood up in response to emergencies or emerging needs. We must, as colleagues have spoken, also recognise that the courts have shown us that tikanga has been recognised in different areas of law over the last several years.

In my last 30 seconds, I would strongly urge the House to be cautious about making a decision to disallow where the committee has not found that Standing Order 327(2)(a) is engaged. This has only happened once before. Since 1989, debates like this have happened, and sensible members of the House have voted against these motions four times—four times. I will be voting against this motion.

The time for this debate has expired.

I declare the House in committee for consideration of the Auckland Harbour Board and Takapuna Borough Council Empowering Amendment Bill.