Revolution by Judicial Decree: A Review of Professor Peter Watts KC’s “Ellis v R, A Revolution in Aotearoa New Zealand, Welcome or Not”

LawNews

Revolutions conjure images of violent uprisings, the storming of institutions, and the forcible overthrow of existing orders. But constitutional foundations can be destroyed through more subtle means. When judges discard long-established constitutional principles and remake the law according to their preferences, they engage in a revolution that may be no less destructive to a nation’s democratic foundations than an uprising in the streets.

In a compelling analysis published this month in the New Zealand Law Review, Emeritus Professor Peter Watts KC exposes how the Supreme Court’s decision in Ellis v R (continuance) represents a revolutionary departure from New Zealand’s constitutional foundations. “Ellis v R: A Revolution in Aotearoa New Zealand, Welcome or Not” exposes how, by declaring tikanga relevant to any issue of common law or statutory interpretation, the Court has up-ended our legal system without a legitimate constitutional mandate.

This article examines Watts’ forensic analysis of the decision’s flaws and its profound implications for legal practice and the rule of law. It then recommends actions Parliament should take in response.

A Narrow Question, A Sweeping Change

Ellis v R reached the Supreme Court on a narrow procedural question: whether an appeal against Peter Ellis’s criminal convictions could proceed despite the appellant’s death. Neither Ellis nor any complainants were Māori, and no party in the proceedings had suggested tikanga (Māori customary law and values) was relevant to this question. Yet the Supreme Court majority, at its own instigation, took it upon itself to consider tikanga.

At the Court’s instigation, the parties arranged a wānanga of experts expressly to discuss and advise on tikanga’s application. A “Statement of Tikanga” from this wānanga was relied upon by the Court and formed an appendix to its judgment. The statement conditionally supported the appeal’s continuation.

Yet, as Watts demonstrates, the majority’s judgment went far beyond using tikanga to resolve the narrow procedural question. The Court effectively declared tikanga relevant to any issue of common law or statutory interpretation that might arise before the courts (Watts, 49). This was a sweeping change made without any jurisdictional connection to the facts before it.

The Traditional Framework

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.

Moreover, as Professor McHugh explains in analysis cited by Watts, beyond claims to aboriginal title, there was “never any question that once New Zealand became a British colony, any continuity of Māori customary law would be limited personally to the Māori population.” (Paul McHugh, The Māori Magna Carta (OUP, Auckland, 1991) at 83-85.)

Watts shows how pre-Ellis case law consistently respected these jurisdictional limits, including requiring a real Māori connection to the particular facts. As he emphasises, “tikanga is law by Māori for Māori.” (Watts, 55)

Watts argues that the older cases on which the Ellis majority relied provide no support for expanding tikanga beyond these traditional limits. He demonstrates how the majority’s reliance on cases like Baldick v Jackson (1910) 30 NZLR 343 (SC) was misplaced. That case, which concerned ownership of a whale carcass, was decided primarily on straightforward common law principles about possession. While Chief Justice Stout added comments about Māori customary rights as a second ground of decision, these were legally irrelevant to the dispute between two Pākehā parties.

A System in Disarray

In analysing the majority judgments, Watts highlights their troubling circularity regarding tikanga’s future role. He points to Chief Justice Winkelmann’s statement that there are an “infinite variety of factual circumstances in which [tikanga] may arise for consideration,” while simultaneously suggesting “there may be circumstances in which tikanga values or concepts have no relevance.” (Watts, 57)

Justice Glazebrook similarly declared that “tikanga will need to be considered where it is relevant to the circumstances of the case” but would not need to be considered where “it is not relevant or where consideration of tikanga will not or cannot assist.”

The judgments provide no clarity about which legal issues might be unaffected by tikanga. Moreover, as Watts points out, it appears from the tenor and outcome of the majority judgments that consideration of tikanga will be appropriate even when its content is consistent with existing common law principles. In other words, it is not necessary to show there is anything particularly defective about existing common law before tikanga becomes relevant.

The practical implications of the Supreme Court’srevolutionary change are profound. First, as Watts shows, it becomes impossible for lawyers to give clear advice when there is no framework for recognising what counts as tikanga for legal purposes. Justice Williams’ acknowledgment that courts “cannot authoritatively declare [tikanga] for general purposes” only compounds this uncertainty.

The cost implications are equally serious. Parties must now consider obtaining expert evidence on tikanga in any case where it might be relevant – which following Ellis could be virtually any case. Given tikanga can vary by rohe, multiple experts may be required. As Watts observes, this creates significant access to justice issues.

Businesses and individuals face particular difficulties in ordering their affairs. The common law has traditionally provided stable rules that allow people to plan their activities with reasonable certainty. But if these rules can be displaced by tikanga principles that courts cannot authoritatively declare, predictability disappears.

The majority’s approach also creates what Watts identifies as fundamental equality problems. When part of the law’s content can be authoritatively determined only by experts from one section of society, the principle of equality before the law is undermined. This problem is particularly acute given tikanga’s content may vary between different rohe.

As Watts explains, the efficiency of the court system itself is also threatened. Without clear principles for recognising and applying tikanga, courts at all levels face the prospect of lengthy arguments about its relevance and content in routine cases. The likelihood of inconsistent decisions is high, with no framework for resolving conflicts between tikanga and common law principles.

Watts observes, “having thrown a cloud over the entire body of existing case law and the entire statute book, what the future holds is somewhat occluded by the majority judgments in Ellis. Blurring of the implications of a radical change comes with the territory of a peaceful revolution.” (Watts. 57)

Built on Sand: The Constitutional Framework

Watts’s meticulous historical analysis reveals that Ellis fundamentally contradicts the statutory foundations of the jurisdiction of the courts in New Zealand. Through careful examination of primary sources, he demonstrates this is not merely a technical flaw but strikes at the heart of our constitutional order.

The foundations were laid in the Supreme Court Ordinance 1841, which expressly conferred on the Supreme Court “jurisdiction in all cases as fully as Her Majesty’s Courts of Queen’s Bench, Common Pleas and Exchequer at Westminster have in England... [and] all such equitable jurisdiction as the Lord High Chancellor of Great Britain hath in England.” When this Ordinance was disallowed by the British government, the Supreme Court Ordinance 1844 swiftly reinstated identical jurisdiction.

As Watts explains, these Ordinances did more than just establish jurisdiction – they made English common law the foundation of New Zealand’s legal system. This was confirmed by the Charter and Secretary of State’s Instructions of 1840, which described English law as the settler’s “birthright.” (See A Mackay A Compendium of Official Documents Relative to Native Affairs in the South Island (Government Printer, 1873).) The English Laws Act 1858 put this beyond doubt, providing that English law “shall continue to be applied in the administration of Justice accordingly.”

While the Act included what lawyers call the “Blackstonian gloss” – permitting adaptation to local circumstances – Watts shows through comparative analysis that courts in other jurisdictions like Australia and Canada applied this provision conservatively. They took English law as their starting point, with departures rare and requiring specific justification. (See W Blackstone, Commentaries on the Laws of England (15th ed, 1809) Vol 1 at 107 and DV Williams, “The Foundation of Colonial Rule in New Zealand” (1988) 13 NZULR 54 at 59.)

This constitutional foundation remained intact through successive legislation. The Supreme Court Act 1860 restated the common law jurisdiction in almost identical terms to the 1844 Ordinance. The Supreme Court Act 1882, Judicature Act 1908 and, most recently, the Imperial Laws Application Act 1988 reaffirmed that English common law “shall continue to be part of the laws of New Zealand.”

The Ellis majority’s claim that English law was merely “presumptively dominant” cannot be reconciled with this legislative history. Justice Glazebrook’s dismissal of the traditional framework for recognising tikanga as “importing notions of judging tikanga” and “operating on mistaken assumptions” ignores Parliament’s clear intent. As Watts observes, Parliament – not judicial preference – made English common law the foundation of our legal system.

Watts’s historical analysis exposes Ellis’s fundamental flaw: the Court has effectively amended foundational constitutional statutes through judicial decree. As Watts explains, “abrogating the continuity of the Supreme Court Ordinance 1841 and the Imperial Laws Application Act 1988 would involve a constitutional moment for Aotearoa New Zealand, both symbolic and substantial. That would quintessentially be a task for the legislature, or a referendum, not the judiciary.”(Watts, 47)

The Need for Parliamentary Action

The Ellis decision highlights an even more fundamental issue: the proper role of courts in our constitutional order.

Reforming the relationship between tikanga and the general law – if reform was needed – was properly a task for Parliament. Parliament can consult widely, consider competing interests, and create clear frameworks for implementation. Courts, by contrast, are limited to the facts of particular cases and lack both the institutional capacity and democratic mandate for systematic reform.

The need for parliamentary intervention is pressing. In my recent report for The New Zealand Initiative, “Who Makes the Law? Reining in the Supreme Court”, I argue that the Ellis decision is a prime candidate for legislative response. The Law Commission’s 2022 Tikanga Study Paper reveals the problems created when the Supreme Court abandoned the Loasby framework without specifying any alternative’ rule of recognition’ for tikanga within the common law.

Parliament has two clear options. First, it can pass legislation reinstating the Loasby approach, requiring tikanga to meet the longstanding requirements for recognising customs as law before it can be incorporated into the common law. This would restore the clarity and certainty that existed before Ellis.

Alternatively, Parliament could introduce a comprehensive statutory framework governing how and when courts should consider tikanga. Such a framework could specify which areas of law tikanga is relevant to, set out principles for its proof and application, and delineate its status in relation to statute and common law. This approach would provide much-needed clarity while still allowing an appropriate role for tikanga, calibrated by Parliament rather than courts.

Watts’s analysis provides compelling evidence that Ellis represents a revolutionary change to our legal system, implemented without a democratic mandate or clear framework. His careful exposition of the historical and constitutional context demonstrates why parliamentary intervention is essential to restore appropriate boundaries and legal certainty. The stability of our legal system and the rule of law itself demand no less.

This column was first published by LawNews on 10 July 2025. To read it on the LawNews website, please click here.