National MP for Southland Joseph Mooney. Photo / Mark Mitchell
National MP for Southland Joseph Mooney. Photo / Mark Mitchell
A National MP, backed by governing parties, has used a parliamentary motion to change the rules around compulsory tikanga components at law schools.
It comes after Parliament’s Regulations Review Committee heard complaints about the mandatory courses from lawyers Gary Judd, KC, and Thomas Newman.
The committee rejected complaintsthe tikanga courses were an “undue trespass on personal rights and liberties” or had advanced a political agenda.
But the committee members agreed by majority that the rules made “unusual or unexpected use” of the Council of Legal Education’s powers to make tikanga a compulsory component of other compulsory law subjects like torts or property law.
On Wednesday, National MP and committee member Joseph Mooney moved a motion of disallowance in the House to repeal the mandatory tikanga component of compulsory law papers.
The committee did not have an issue with tikanga being taught as a stand-alone compulsory law subject.
Rules around the compulsory teaching of tikanga Māori components at law schools are at the heart of the issue.
This means universities are able but not required to have a tikanga component in their compulsory law papers, like criminal law, property law and torts. They are still required to have a stand-alone tikanga paper.
Motions of disallowance are essentially a repeal. As lawyer Graeme Edgeler explained, any MP can move a motion of disallowance but they are much more powerful when done by a member of the Regulations Review Committee, whose job it is to review the regulatory-making powers given to professional bodies like the New Zealand Council of Legal Education.
Mooney, the National MP who moved the motion, said the committee unanimously agreed the council 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.
Prime Minister Christopher Luxon and Southland MP Joseph Mooney in Queenstown. Photo / Derek Cheng
Committee members differed on the matter of making it a compulsory component of every other compulsory law subject.
“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.”
He said the changes would leave it to the discretion of law schools to teach tikanga how and where they deemed it appropriate to do so.
Labour MP and chairwoman of the committee, Arena Williams, said during the debate the committee’s report was a statement of support of tikanga in legal education.
Labour MP for Manurewa Arena Williams. Photo / Mark Mitchell
“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.”
Labour voted no to the motion and the party’s committee members did not support the “unusual or unexpected use” finding.
“We also are uncomfortable with the Government’s approach to this issue,” Williams said.
If the Government wanted to overturn the council’s decision or restrict the teaching of tikanga Māori in universities, then the proper path would be to introduce a bill, she said.
“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.”
Williams said such mechanisms were not substitutes for policy-making or intended as “a back door” to reverse regulatory decisions that were lawfully and transparently made.
“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.”
The motion passed with the Government parties National, Act and NZ First in favour and the Opposition, Labour, Greens and Te Pāti Māori against.
Edgeler, a barrister and legal commentator, said professional bodies like the New Zealand Council of Legal Education were given the power to introduce regulations, also known as secondary laws, to remedy technical details in their industries – the types of issues Parliament would not have time to address.
During the pandemic, the Covid-19 rules for essential and non-essential businesses were passed in the same way, Edgeler said.
Unlike legislation passed by Parliament, rules like those made by the New Zealand Council of Legal Education can be challenged by taking a complaint to the Regulations Review Committee, or the body that made it can change it.
Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.
