The judicial revolution

An excellent article by Roger Partridge on an analysis by Emeritus Professor Peter Watts KC on the Supreme Court’s actions in Ellis vs R. I recommend you read the whole thing, but a key extract is:

Before Ellis, tikanga’s role in New Zealand law was clearly defined and limited. As Watts shows, courts recognised tikanga within the common law in only two circumstances: cases involving customary property rights and matters intrinsically connected to Māori affairs, particularly aspects of family law involving Māori. Crucially, courts required a specific Māori connection to the facts before them.

As I have argued elsewhere, until Ellis, the legal framework for incorporating tikanga into the common law was equally specific. As established over a century ago in Public Trustee v Loasby (1908) 27 NZLR 801(SC), tikanga could only be recognised as part of the common law if it met longstanding requirements for recognising customs as law. The required features include certainty, antiquity and reasonableness.

Now there is no certainty and no reasonableness.