US 27848 v2a

Learner’s Guide

LEGAL STUDIES

Unit Standard 27848

Version 2 | Level 2 | Credit 4

Explain a law
making process

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About this
Learner’s Guide
Learning Purpose & Outcomes
In this guide, you will learn about four processes used to make law.
• the law reform process
• Judge-made law
• status of the Treaty of Waitangi
• law based on religion.
For each of these law making processes, you will complete a case study that focuses on the
development of a specific law.
A glossary containing difficult or technical terms has been provided at the end of this guide.
These words are highlighted the first time they appear in the main text.

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Contents

Law reform 2
What is law reform? 3
Law reform process in New Zealand 4
Alcohol law reform in New Zealand 7

Judge-made law 19
What is judge-made law? 20
Process of developing judge-made law 23
Case study: Judge-made law in relation to what it means to act ‘dishonestly’ 25
Cases that highlight the development of law relating to theft in New Zealand 27
Viewpoints 31

Treaty of Waitangi 33
What is the Treaty of Waitangi? 34
The Waitangi Tribunal 37
Law making process and the Treaty of Waitangi 39
Case study: The Māori Language Act 41
Differing viewpoints 45

Law from religion 47

What is law from religion? 48
Religion in New Zealand 49
Case Study: Marriage Law 52
Differing viewpoints 58

Glossary 61

References 62

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LESSON 1:

Law reform

Learning Objectives
In this lesson, you will learn about the law reform process. By the A space has been left
end of the lesson, you will be able to explain: on the right of every
page for you to make
what law reform is notes about what
the law reform process in New Zealand. you are learning.
You will also complete a case study on alcohol law reform. In
particular, you will study the following in relation to alcohol law reform:
• history
• Sale and Supply of Alcohol Act
• reasons for the law change
• process involved
• differing viewpoints.

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LESSON 1: Law reform

What is law reform?

Law reform is the analysis of an existing law with the aim to improve
the law. Many different organisations or people may be involved in
the law reform process. These include:
• law commissions
• political parties
• individual Members of Parliament
• lobby groups
• concerned citizens.
Law reform occurs in all areas of the law. Our laws are constantly
changing to better reflect the needs and goals of society (or, some
would say, the dominant members of society).
Each organisation or person involved in the law reform process
wants their own values or ideals to be made into law. For example,
big businesses may want laws that protect the environment to be
relaxed so they can have more freedom to participate in economic
activities. Environmental groups, on the other hand, may want
environmental laws strengthened so it is harder for businesses to do
things that may potentially affect the environment.

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LESSON 1: Law reform

Law reform process in

New Zealand

Stage 1
The first stage in the law reform process is the time where evidence
for a change in law is collected. The evidence may be collected by
the following.
a) The Law Commission
The Law Commission is a crown entity that is independent from
the government. It reviews areas of law that need updating
and then it makes recommendations to Parliament. These
recommendations are published for the public to review.
Parliament does not have to follow the recommendations that
the commission makes, but it should take them into account.
b) Lobby groups
In New Zealand, there are various non-governmental lobby
groups that pressure Members of Parliament about legislative
changes that need to be made. They may conduct research or
survey the public and present this information. An example of
one lobby group is the Sensible Sentencing Trust. This Trust
lobbies for harsher sentencing of criminals. It does this by:
• making press releases about the sentences that various
offenders have received
• making submissions to select committees
• writing to various Members of Parliament (MPs) to encourage
them to vote a certain way.
Lobby groups can only influence political parties to:
• submit a bill
• vote for a bill a certain way.
The do not have any specific power to create reform themselves.
c) Political parties
Political parties themselves have their own policies about
changes to laws that need to be made. The only political party
that is able to fully implement its policies is the party that has
been voted into government. Other political parties can only use
member’s bills to reform laws.
d) Members of Parliament
Members of Parliament are able to create draft law and have
these laws heard by Parliament. The option to have these bills
heard is somewhat limited because they have to be drawn from
a ballot. Once the bill is drawn from the ballot, it enters the
second stage of the process.

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LESSON 1: Law reform

Stage 2
Once it has been decided that a law needs to be changed, it follows
the Parliamentary law making (or amending) process. This process is
as follows.

Step Description

A bill is a proposed law. The bill either comes

Introduction from a government minister or a private member.
of bill It may be based on information from the Law
Commission or specific lobby groups.

During the first reading, the bill is first discussed

First reading
and voted on by Parliament.

The bill is then heard by a Select Committee

which is made up of Members of Parliament and
Select
subject-matter experts. Members of the public,
Committee
including lobby groups, are invited to submit their
opinion.

Second The bill, with changes by the Select Committee, is

reading again heard by Parliament and voted on.

Committee
If the bill passes the vote, it is then debated by all
of the Whole
in Parliament.
House

Third reading The bill is summed up and then voted on for the
and final vote final time.

If the bill passes its vote, it will signed off by

the Governor-General (who is the Queen’s
Royal assent
representative). It then becomes an enforceable
piece of legislation.

It is important to note that as the process is going on, lobby groups

and other concerned members of the public are actively trying to
influence Members of Parliament to vote a certain way. The media is
used by these lobby groups and commentators to present different
viewpoints about the possible effects of the changes.

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LESSON 1: Law reform

Try it for Write a description of the roles that the following people
Yourself have during the law reform process.

Lobby groups

Members of Parliament

The Select Committee

Political parties

The Governor-General

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LESSON 1: Law reform

Alcohol law reform in New Zealand

In this section, you will complete a case study on the alcohol law
reform in New Zealand. In particular, you will learn about the process
that was followed in the creation of the Sale and Supply of Alcohol
Act 2012 and subsequent amendments.

History
Many legal changes have been made to the sale and consumption
of alcohol in New Zealand over the past 150 years. Throughout the
history of New Zealand there have been laws that have restricted
when, where, and by whom alcohol can be consumed.

Why do you think alcohol laws have been constantly

Try it for reviewed? Why do people think it is important to put
Yourself restrictions on the sale of alcohol?

One of the earliest laws relating to the sale of

alcohol in New Zealand was the Licensing Act
1881. This law required all people who sell alcohol
to have a licence. The law also contained a
minimum age of purchase. These requirements are
still in place today.
The Act also contained many features that people
would find strange today. Restrictions were
placed on what people could do on premises,
that were licensed for alcohol consumption.
At some premises dancing, listening to music,
and eating were banned. These activities were
banned because it was believed that pleasurable
activities would encourage people to drink more alcohol. It also
required all bars to be closed by 6pm.

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LESSON 1: Law reform

In the early 1900s, there was a much stronger resistance to alcohol

consumption than there is today. In fact, in 1919 New Zealand came
close to banning alcohol completely!
In 1945, a Royal Commission on alcohol licensing was established.
The role of the commission was to look at the possibility of alcohol
reform. The aim was to create law to establish a range of drinking
facilities and to increase competition between these facilities. The
commission heard a range of submissions about alcohol reform.
Although the commission recommended that bars should be
allowed to stay open past 6pm, the public were against this
proposal. In 1949, a public referendum was held and it was voted
that the 6pm closing time should remain. The 6pm closing time
remained until 1967.
Since the 1980s, there have been a number of other law changes
that have eased restrictions on alcohol consumption. For example:
• The Sale of Liquor Act 1989 made it easier for people to get
licences to sell alcohol.
• The Sale of Liquor Amendment Act 1999 allowed
supermarkets to sell beer.
• The Sale of Liquor Amendment Act 1999 lowered the
drinking age from 20 to 18.

Why do you think alcohol laws have been constantly

Try it for reviewed? Why do people think it is important to put
Yourself restrictions on the sale of alcohol?

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LESSON 1: Law reform

Sale and Supply of Alcohol Act

In 2012, the Sale and Supply of Alcohol Act was made into law. It
was one of the biggest changes to alcohol related legislation in New
Zealand in over 10 years.
The law made a number of changes to existing alcohol legislation.

1. Local authorities are now able to create Local Alcohol

Policies (LAPs). Local authorities can create rules about the
approval of alcohol sale licences. This helps communities be
in charge of how alcohol is sold in their own communities.
2. Under previous legislation, a person under 18 could be
supplied with alcohol if they were with their guardians. This
requirement has now been restricted. Now alcohol can only
be supplied to minors with a parent present if it is being
served in a ‘responsible manner’.
3. The idea of having a split system where 18 year olds could
purchase from a bar, but not from a store, was raised.
However, this was rejected. It was decided to keep the
drinking age the same.
4. Restrictions were made in relation to advertising alcohol.
Alcohol related advertisements must not be aimed at, or
have appeal to, minors. Also, advertisements relating to
discounts are restricted.
5. Special licenses for one-off events were also altered.
Parties can now apply for either an on-site, or an off-site
one-off license instead of just a ‘one-off licence.’

Although this was the final outcome of the law, there were many
other recommendations about what should be included in the law.
These included:
• increasing the price of alcohol through tax increases in order
to reduce consumption
• increasing the alcohol purchasing age to 20
• restricting opening hours for shops that sell alcohol
• reorganising the system to help people with alcohol problems.

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LESSON 1: Law reform

Reason or need for the law reform

Before you read the next section: Why do you think the
Try it for changes were made to the alcohol-related legislation?
Yourself Write your ideas in the space below.

One of the key reasons given for the law reform was to reduce
alcohol-related harm. The Minister initially in charge of the Bill,
Simon Power, argued that it was the first time in two decades that
Parliament has acted to restrict alcohol laws, rather than relax them.
The laws that Parliament had made to relax alcohol laws had not
worked and changes had to be made.

New Zealand needs a safe and responsible drinking culture.

Excessive drinking and intoxication contributes to our crime rate
and our injury rate, and affects our general health. It impacts
on workplace productivity and contributes to family violence
and child abuse. The direct cost to the Government of alcohol-
related harm in New Zealand has been put as high as $1.2 billion
per year. The costs to New Zealand society are significantly
greater. But we must achieve a balance. Addressing harm
must be weighed against the positive benefits associated with
responsible drinking. The Government’s approach is, therefore, a
considered, integrated, and balanced package that targets harm
without penalising responsible drinkers.1

Note: At the start of the law reform process, the Bill was known
as the Alcohol Reform Bill. However, it was split into the three
bills during the Committee of the Whole House stage. The
alcohol reform legislation now has three Acts.
• Sale and Supply of Alcohol Act 2012
• Local Government (Alcohol Reform) Amendment Act 2012
• Summary Offences (Alcohol Reform) Amendment Act 2012
These new laws replaced the Sale of Liquor Act 1989.

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LESSON 1: Law reform

Try it for Answer the questions that follow based on your own
Yourself knowledge.

1. What is alcohol-related harm?

2. What does striking a sensible balance mean in relation to this case study?

3. Why do you think that people would argue the bill does not go far enough?

4. Do you think alcohol causes harm to society? Why? Why not?

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LESSON 1: Law reform

Process followed
The typical law reform process was followed in this situation.

Stage 1
Firstly, the Law Commission produced a report on laws relating to
alcohol. The report was called Alcohol in Our Lives: Curbing the
Harm.’2

The commission made a number of recommendations on how

laws relating to alcohol should be changed in New Zealand. These
recommendations included:
• increasing the price of alcohol through tax increases in order
to reduce consumption
• regulating advertising of alcohol more strictly
• increasing the alcohol purchasing age to 20
• restricting opening hours for shops that sell alcohol
• putting greater regulations on parents’ ability to buy alcohol
for those under 18
• allowing local authorities to have a say on licensing decisions
• reorganising the system to help people with alcohol
problems.
The National Government then created a proposed law (bill).
The proposed law adopted most of the Law Commission’s
recommendations. However, some important alterations were made.

Stage 2
At the second stage, the Bill went through the Parliamentary
process. There was a lot of debate about the Bill at this stage. Some
people or organisations thought the bill went too far. Others thought
it did not go far enough.

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LESSON 1: Law reform

Step Description

Introduction
of bill The Alcohol Reform Bill was introduced to Parliament.
8/11/10

Simon Power, the Minister of Justice, stated:

‘This is a large Bill, but its objectives are simple. It zeroes in on alcohol-related
harm, crime, disorder, and public health problems, especially where our young
First reading
people are concerned’.3
11/11/10
Other members of Parliament disagreed with Power by saying that the Bill
did not go far enough and that the report from the Law Commission was not
followed properly.

Over 7,000 people made submissions on the Bill. Most people supported
the intent of the Bill but wanted more restrictions on the sale of alcohol. The
Select Government adopted all 130 of the Select Committees recommendations.
Committee
These included:
18/2/11 -
• only allowing supermarkets to display alcohol in one, non-prominent area
25/8/11
of the store
• prohibiting convenience stores from selling alcohol.

At the second reading, Simon Power outlined the changes that were adopted
by the select committee. Other Members of Parliament were able to make
submissions about these changes.
Second Lianne Dalziel, from the Labour party, stated:
reading
‘I have to say that this Bill is a travesty, because it does not even begin
13/9/11 to address the challenges that were posed by the evidence that the Law
Commission has put in front of the Government of New Zealand and that
should have been the basis for a bill that was introduced into the House. The
bottom line is that this Bill ignores what the people said they wanted’.4

At this stage, the whole Bill was debated by those in Parliament. Many
Committee different aspects of the Bill were discussed including the new drinking age
of the Whole requirements and the effects that the law could have on different members of
House society. Members of Parliament submitted Supplementary Order Papers with
30/8/12 - suggested amendments to the law.
6/12/12 Also, given the size of the Bill it was decided to split it into three different bills.
One of these bills was called ‘the Sale and Supply of Alcohol’ Bill.
Continued on next page...

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LESSON 1: Law reform

The changes made during the Committee of the Whole House stage was
outlined and then voted on.
Third reading
and final vote Gareth Hughes, a Member of Parliament for the Green Party stated:
11/12/12 ‘As I said, the Green Party will be voting in support, but we lament that the
measures in this legislation are not going to be the most effective that they
could be’.5

The three Bills were passed into law by the Governor-General.

These became the:
Royal assent
• Sale and Supply of Alcohol Act 2012
18/12/12
• Local Government (Alcohol Reform) Amendment Act 2012
• Summary Offences (Alcohol Reform) Amendment Act 2012.

Summarise the process that was followed to

Check Your create the alcohol reform law. You may write in
Understanding note form/bullet points.

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LESSON 1: Law reform

Using the information in the previous pages, write a

Try it for summary for each of the following sections in relation to
Yourself the Sale and Supply of Alcohol Act 2012.

Area Summary
Reasons or
need for the
law

Key features
or steps
involved in the
creation of the
law

People or
organisations
involved in the
creation of the
law

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LESSON 1: Law reform

Differing viewpoints
As you have already seen, there were a wide variety of opinions
about the Sale and Supply of Alcohol Bill and the effect that people
thought it would have. Read what the following people/groups said
could be the effect of the alcohol reform on the community.

The Law Commission:

‘We believe our package of policy
recommendations will help reduce the levels of criminal
offending in New Zealand. We note that reducing the harm from
alcohol is one of the four priority areas for cross-government
action in addressing the drivers of crime. The policies will
relieve the heavy burden carried by the New Zealand Police,
and should also improve the nation’s health.’6

Judith Collins (The National Government)

‘One of the key concerns of communities has
been the impact of alcohol on young people.
The new Act will have a special focus on this
vulnerable group. We know that heavy drinking is
not the exclusive domain of the young, but young
drinkers—particularly those under 15—suffer
significantly more alcohol-related harm than older
drinkers.’7

Lianne Dalziel (The Labour Government)

‘The real winners are the Food and Grocery
Council, which has actually continued its ability to
sell dirt-cheap alcohol through our supermarkets,
thereby driving down the cost of takeaway alcohol
that is drunk away from supervised premises,
where there is no host responsibility beyond the
door. So as soon as somebody walks out the door
with the bottle of whatever, the host responsibility
goes out the door with them.’8

Doug Sellman (Christchurch National Addiction Centre)

‘Aiming measures primarily at youth while avoiding anything
substantial that would reduce heavy drinking among adults is
scapegoating young people for the country’s heavy drinking
culture and fails to address the main issue.’9

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LESSON 1: Law reform

Andy Dickerson (Canterbury District Health

Board)
‘Every year the Canterbury District Health Board
spends tens of millions of dollars on both treating
alcohol addiction and treating patients injured
in violent attacks, sexual assaults, domestic
violence and motor vehicle accidents directly or
indirectly resulting from alcohol abuse. Alcohol is
also the leading cause of violent attacks on our
nurses, doctors and other healthcare workers.
If the Government was serious about cutting
unnecessary public expenditure and reducing
violent crime it would have comprehensive alcohol
reform at the top of its agenda. Instead, it has
passed legislation that, in my opinion, is timid.’10

Professor Jennie Connor (Alcohol Action NZ)

‘The Government have not articulated why they would pass
a non-reform bill in the face of scientific evidence, popular
support and expert advice. They haven’t explained why they
are opting for the status quo, with all of its misery and waste
and a five billion dollar a year price tag.
The only explanation that makes sense is that this National-
led government is pandering to the alcohol industry, as part
of an economic ideology that favours the private gains of big
business over the public good and well-being of ordinary
citizens. In this case, the product is no ordinary commodity,
but a major public health menace. The alcohol industry has
huge capacity to finance its sophisticated marketing strategies,
which include influencing policy makers. This government has
not had the backbone to stand up to them.’11

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LESSON 1: Law reform

For each of the viewpoints on the previous page,

Try it for highlight the effect that the organisation or person
Yourself thought the change to the law would have.

Case What effect do they think the law change could have?
National party

Labour party

The Law
Commission

Christchurch
National
Addiction
Centre

Canterbury
District Health
Board

Professor
Jennie Connor
(Alcohol
Action NZ)

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LESSON 2:

Judge-made
law

Learning Objectives
In this lesson, you will learn about judge-made law. By the end of
the lesson, you will be able to explain:
what judge-made law is
judge-made law in New Zealand
the process of making judge-made law.
You will also complete a case study on judge-made law in relation to
what it means to act ‘dishonestly’. You will look at:
• section 217 Crimes Act 1961
• reasons for the changes to the definition
• the process of changing the law
• differing viewpoints.

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LESSON 2: Judge-made law

What is judge-made law?

So far, you have learnt that law comes from legislation that is
developed by Parliament. However, law is not developed by
Parliament alone. Judges in New Zealand also have an active role in
developing and refining law.
Judges develop law to cover areas where the legislation is not
sufficient. If a case goes to court, a judge has to make a decision
in relation to the law. However, there are times when legislation
may not adequately cover the case that is before the courts. For
example, the courts may be hearing a case that deals with new
technology and legislation may not cover this. In such cases, judges
will need to develop or refine law themselves.
The way that judges make law is very different to the way that it is
made by Parliament. Parliament can make almost any law it wants
- as long as it has the support of the House of Representatives.
Judges, on the other hand, can only refine and define statute law.
Judges refine law by hearing a case and then making a decision
on it. For each decision, they will make comments about their
interpretation of the statute law or traditional legal principles.
The higher the level of the judge, the more weight that the decision
has. Over time, other judges (who are a lower level) follow the
decision that the higher level judge has made. Lower level judges
will refer to the decisions of higher level judges when they are
deciding cases.

Judge-made law in New Zealand

Judge-made law in New Zealand was adopted from the judge-
made law in the Courts of England. However, as New Zealand
has progressed as a country, it has dealt with cases that relate
specifically to New Zealand and the values of New Zealand society.
The interaction between statute law and judge-made law is
interesting. In the past, there was not as much statute law as there is
now. This means that judges had to rely more on the legal principles
that had been developed through judge-made law.
These days, statute law in New Zealand covers a wide range of
areas. However, this does not mean that it covers all areas. In
situations where there is ambiguity in the statute law, or the statute
law does not cover the situation, then judge-made law must be
applied.

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LESSON 2: Judge-made law

At times, new statutes will be made by the Government so that

judge-made law is stopped. This was most obvious in the case of
Ngati Apa, which caused widespread controversy throughout New
Zealand.

The Ngati Apa decision

Eight Māori iwi failed to be awarded rights to farm mussels on
the west coast of New Zealand. In 1997, they took the case
to the Māori Land Court claiming that the land was Māori
customary land and therefore they should have rights to
farm it. The Māori Land Court said that they did not have the
jurisdiction to make a decision on it because it was not Māori
customary land.
The case progressed to the High Court. In the High Court, it
was ruled that when the dry land beside the foreshore had
been purchased by the Crown, the foreshore and seabed
was also purchased. It was therefore owned by the Crown in
common law.
In 2003, however, the
Court of Appeal overturned
this decision and decided
that the Māori Land Court
could determine whether
the foreshore and seabed
could be regarded as Māori
customary land.
The ruling caused a lot of controversy with the public. Many
people thought that this would prevent them from having
access to the foreshore and seabed. Many claimed that if the
Māori Land Court had the jurisdiction to hear claims, then
pockets of beach around New Zealand may not be accessible
to all New Zealanders.
As a result, the Government made a law called the Foreshore
and Seabed Act 2004. In this law, it was stated that all the
foreshore and seabed was the property of the Crown. This
effectively meant that iwi could not apply to the Māori Land
Court about claims relating to the foreshore and seabed.
In 2011, the Foreshore and Seabed Act was repealed and
replaced with the Marine and Coastal Area (Takutai Moana) Act
2011. This Act tries to resolve the issue of preventing Māori
applying to the Court to have their customary rights recognised.
Although it allows iwi to do this in some limited situations, it still
does not give iwi the unrestricted right to do so.

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LESSON 2: Judge-made law

Try it for
Answer the questions that follow.
Yourself

1. What is judge-made law?

2. How does judge-made law interact with statute law?

3. What did the Court of Appeal decide in the Ngati Apa case?

4. What did the Government do as a response? Why did the Government do this?

5. Do you agree with the Government’s decision to go against the judge-made

law? Why? Why not?

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LESSON 2: Judge-made law

Process of developing
judge-made law

The process of developing judge-made law is very different to the law

reform process. The law reform process has a set series of steps that
need to be followed for a proposed law to become law. However, for
judge-made law, a judge only needs to do the following.
STEP 1: Make a declaration in a court case that the law has been
interpreted in a certain way.
STEP 2: Specify the reasons why the law has been interpreted that way.
Although this may sound like a simple way for law to be made,
it is much more complex than it seems. Judges need to take a
lot of information into account when they make decisions. This
is especially the case if the decision is controversial or goes
against already established judge-made law. When a judge makes
a decision on a case, they refer to legislation and to previous
decisions that judges have made that are relevant. Then, they have
to explain in detail why they made a certain decision.
Look at the excerpt from a decision from a case where a person
(Pope) was charged with excess blood-alcohol. Pope claims that he
had not been drinking and the alcohol reading was due to his using
an asthma inhaler. The judge said the following:11

[12] Furthermore, when it came to Mr Pope’s evidence, whilst

his evidence in chief clearly sets out his use of the inhaler prior
to the first test, that evidence was not challenged in cross-
examination. Section 92 of the Evidence Act 2006 requires a
party to cross-examine the opposing party’s witness on key
matters. This does not mean that cross-examining counsel is
required to slavishly put all aspects of the prosecution case
to the defendant. But where the rejection of a defendant’s
evidence will be pivotal to the outcome of a defended hearing,
fairness requires the prosecution to challenge that aspect of
the defendant’s evidence by cross-examination. This principle
of fairness, which is based on the need for the Court to have a
reasonable opportunity to assess the evidence properly, is well
settled and has been applied before and following the passing
of the Evidence Act. See R v Soutar [2009] NZCA 227 at [27]
and R v Dewar [2008] NZCA 334 at [44], for decisions under
the Evidence Act. For decisions under the common law, see
Gutierrez v R [1997] 1 NZLR 192 (CA); and Transport Ministry v
Garry [1973] 1 NZLR 120 (SC).

Continued on next page...

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LESSON 2: Judge-made law

[13] Garry is particularly relevant. The appellant had been

convicted of driving with an excess blood alcohol level. At his
defended hearing, he called an expert witness whose evidence
provided him with a defence. The witness was not cross-
examined.
[14] This Court found that the absence of cross-examination
meant the expert’s evidence was unchallenged. Haslam J
recognised that there were occasions when the omission to
cross-examine was not fatal to the outcome of a case.
But in the case before him in the lower Court, the Magistrate
had made no findings on the expert’s evidence that would have
entitled the Magistrate to reject the expert’s evidence on that
basis. Accordingly, the prosecution’s failure to cross-examine
the expert was fatal to its case against the appellant. The
appeal was allowed and the conviction was quashed.12

As you can see, the judge has used different sources to make his
decision. He has used:
a) relevant legislation (The Evidence Act 2006)
b) previous relevant cases (R v Soutar, R v Dewar, Transport Ministry
v Garry).
In the future, this case may also be used to support the decisions
that judges will make on other cases, especially if this case makes a
new statement on the law.

Check Your How is the process of making judge-made law

Understanding different to the process of law reform? Explain.

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LESSON 2: Judge-made law

Case study: Judge-made law in

relation to what it means to act
‘dishonestly’

In this section, you are going to look at how the meaning of the term
‘dishonestly’ in relation to theft has developed under judge-made law.

Try it for
What does the concept ‘acting dishonestly’ mean to you?
Yourself

The Crimes Act 1961

Firstly, it is important to understand what the legislation says it means
to act ‘dishonestly’. This is because legislation is primarily what
judges have to refer to when making a decision on the law.

Section 217, Crimes Act 1961

dishonestly, in relation to an act or omission, means done or omitted
without a belief that there was express or implied consent to, or
authority for, the act or omission from a person entitled to give such
consent or authority

Although the legislation highlights what it means to act ‘dishonestly’,

it is still not clear how this should be applied in specific situations.
Judge-made law narrows down how the term ‘dishonestly’ may be
interpreted. This has not happened in one case alone. It has taken a
number of different cases for the law to slowly evolve from meaning
one thing, to meaning another.
When judges have ‘gone too far’ with their interpretation, Parliament
has made law that has further refined the meaning.

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LESSON 2: Judge-made law

Read through the section of legislation on the previous

Try it for page carefully. In your own words, explain what the
Yourself legislation says it means to act ‘dishonestly’.

Need for law

The need for judge-made law in this area is important. Although
the term ‘dishonestly’ is relatively clear in meaning, the specific
situations where behaviour may or may not be considered dishonest
is not so clear.
This is especially true in relation to the introduction of new
technology. Situations relating to internet usage or electronic
banking have appeared and these were never considered by the
original law. This means that judges need to further define the
law so that it can cover these areas. Eventually, it may lead to the
Government making legislation so that the decisions of judges are
put into statute law.

Can you think of any specific situations where a judge

What do may need to define the term ‘dishonestly’ more than it is
You Think? written in the act? Describe.

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LESSON 2: Judge-made law

Cases that highlight the

development of law relating to
theft in New Zealand

In this section you are going to look at how the meaning of the term
‘dishonestly’ in relation to theft has developed under judge-made law.

R v Coombridge [1976] 2 NZLR 381 (CA)

Schindler owned two houses in the town of Newton. He asked
Coombridge to take care of the properties for a while. As part
of looking after the properties, Coombridge was required to
collect rent from the tenants who were living in the property.
With the money collected, Coombridge was then required to
pay Schindler’s mortgage.
Coombridge discovered that Schindler had moved to Australia
and was not planning on returning to New Zealand. As Schindler
owed Coombridge a lot of money, Coombridge decided to keep
the money from the tenants for himself. Coombridge was charged
with theft under s222 of the Crimes Act 1961.
In order for Coombridge to be found guilty, he had to have
acted dishonestly. In the Court of Appeal there was an in
depth discussion about whether Coombridge’s actions were
dishonest. It was decided that Coombridge had done nothing
dishonestly (ie he honestly believed that what he was doing
was justified and he did not try to hide this). He therefore was
not guilty of theft under the Crimes Act.

R v Ghosh [1982] QB 1053

Ghosh was a surgeon at a hospital in Great Britain. He asked
a patient to pay him directly for an operation. All fees for
operations were normally paid directly to the hospital.
The patient paid the fee to Ghosh. Ghosh was subsequently
charged with theft. At his trial, Ghosh argued that he did not
act dishonestly because the money was legitimately payable to
him as ‘consultancy fees.’ In this case, the judge asked the jury
to consider the meaning of honesty. He said that the jury needs
to ask themselves two questions.
a) Was the defendant’s conduct dishonest according to the
standards of a ‘reasonable and honest person’?
b) Did the defendant know what he was doing was dishonest
(according to the standards of a reasonable person)?
Continued on next page...

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LESSON 2: Judge-made law

If both questions can be answered as ‘yes’ then Ghosh would

be considered guilty. It was decided by the jury that Ghosh did
act dishonestly. He was found guilty of theft.

R v Hayes [2008] NZSC 3

Hayes was in a car accident and suffered injuries. Hayes
received ACC for these injuries. She had to submit declarations
signed by her in order to receive weekly compensation
payouts. She received these payouts from 1997–2004.
About one year after the accident, Hayes started working on
her own business related to farming. She received payments
from ACC while she was working on her business. This was
against ACC rules. Hayes was then charged with taking and
dealing with documents with intent to defraud.
The case went to the Supreme Court. In the Supreme Court,
Hayes argued that she had not acted dishonestly. She believed
that the declaration she was making was that she could not
work in her old profession (as a school teacher), not that she
could not work in any job at all. Hayes argued that she did not
think that running a business was being ‘employed.’ She also
argued that she was not intelligent enough to understand the
form – and got evidence from a doctor to prove it!
The judges did not follow previous decisions, such as the
decision made in R v Ghosh. In Ghosh, the judges stated that
the following question needs to be asked:
Was the defendant’s conduct dishonest according to the
standards of a ‘reasonable and honest person’?
The judges in Hayes said that this question is no longer valid.
They said that the law created by Parliament does not state
‘reasonable’ at all in relation to the term ‘dishonestly’. It
therefore doesn’t matter what a reasonable person thinks or
would do. All Hayes has to do is prove that she believed that
she was not acting fraudulently.
A new trial was ordered on the basis of this legal reasoning.

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LESSON 2: Judge-made law

Try it for For each of the three previous cases above, describe
Yourself how the meaning of ‘dishonestly’ was developed.

Case How the meaning of dishonestly was developed

R v Coombridge

R v Ghosh

R v Hayes

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LESSON 2: Judge-made law

Using the information in the previous pages, write a

Try it for summary for each of the following sections in relation to
Yourself section 217 of the Crimes Act 1961.

Area Summary
Reasons or
need for the
law

Key features
or steps
involved in the
creation of the
law

People or
organisations
involved in the
creation of the
law

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LESSON 2: Judge-made law

Viewpoints

Differing viewpoints
As you have already seen, the meaning of ‘dishonestly’ in relation to
New Zealand law has been discussed in detail by the courts.
Here are some different viewpoints that were held:

Judgement from R v Ghosh (Court of Appeal)

‘Now, finally dishonesty. There are, sad to say, infinite
categories of dishonesty. It is for you, jurors in the past, and
jurors in the future to set the standards of honesty. Now it
is your turn today, having heard what you have, to consider
contemporary standards of honesty and dishonesty in the
context of all that you have heard. I cannot really expand on
this too much, but probably it is something rather like getting
something for nothing, sharp practice, manipulating systems
and many other matters which come to your mind.’13

The Crown’s argument in R v Hayes (NZ Supreme Court)

‘Even if New Zealand were out of line, the statutory
definitions of dishonestly and claim of right introduced in
2003 have no reasonableness criterion. It would not be
appropriate for the courts to read one in.’14

Judge’s decision in R v Hayes (NZ Supreme Court)

‘It is therefore clear that New Zealand is not out of line
and, in any event, we now have statutory definitions of
‘dishonestly’ and “claim of right”. They are both directed to
the accused’s belief. Section 228 does not require the use of a
document to be “objectively” dishonest. It is the user’s state of
mind which will determine whether his use was dishonest.’15

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LESSON 2: Judge-made law

For each of the viewpoints on the previous page,

Try it for describe the opinion that each person or organisation
Yourself had about what it means to act ‘dishonestly’.

Agent Opinion about what is means to act ‘dishonestly’

Judgement
from R v Gosh

The Crown’s
argument in R
v Hayes

Judge’s
decision in R
v Hayes

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LESSON 3:

Treaty of
Waitangi

Learning Objectives
In this lesson you will learn about the Treaty of Waitangi and how it
is involved in the law making process. By the end of the lesson, you
will be able to explain:
what the Treaty of Waitangi is
the Waitangi Tribunal
law making process and the Treaty of Waitangi
the status of the Treaty of Waitangi in relation to the Māori
Language.
You will also complete a case study on the Māori Language Act 1987
(which was fundamental to the enactment of the Māori Language Act
2016). As part of the case study you will learn about:
• reasons for development of the law
• process involved
• differing viewpoints.

You have probably studied the Treaty of Waitangi at

Try it for school, or heard it talked about in the news. What do
Yourself you already know about the Treaty of Waitangi? Write
some notes in the space below.

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LESSON 3: Treaty of Waitangi

What is the Treaty of Waitangi?

The Treaty of Waitangi is New Zealand’s founding document. It was

signed in 1840 between the British Crown and various Māori chiefs
throughout the North Island of New Zealand. Prior to this time, a
large number of Europeans had arrived in New Zealand and created
problems with their lawless behaviour. The French also attempted
to take over New Zealand. Māori asked the British Government for
protection. This eventually resulted in the two groups signing the
Treaty of Waitangi.
The Treaty has three articles.
• Article 1 established the British as the Governor of New
Zealand, responsible for the operation and running of the
country.
• Article 2 recognised Māori ownership of their lands and other
properties.
• Article 3 gave Māori rights as British subjects.
There have been many problems with
the Treaty of Waitangi because the Māori
version and the English version are very
different from each other. Some of these
differences include the following.
1. In the first article, the English
version says that Māori leaders
promise to give the Queen ‘all
rights and powers of sovereignty’
over their land. However, the Māori
version says that ‘government
(kawanatanga) over land’ is given.
2. In the second article the English
version says that Māori were
given ‘exclusive and undisturbed
possession of their lands, estates,
forests, fisheries and other
properties.’ However in the Māori version, Māori were given
‘unqualified exercise of their chieftainship over their lands,
villages, and all their property and treasures’.

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LESSON 3: Treaty of Waitangi

1. Write down what each of the three articles of

Check Your the Treaty of Waitangi says. You can write your
Understanding answer in note form.

Article 1:

Article 2:

Article 3:

2. What are some of the key problems with the Treaty of Waitangi?

Effects of the Treaty

The Treaty prevented anyone except the Crown from buying land
from Māori. Although this worked to the benefit of both parties in
the beginning, as the tribes’ willingness to sell land decreased, the
Crown used more dubious methods to buy land from Māori. For
example, although Māori owned land in collective groups, people
appointed to buy land for the Crown would not get consent from
the whole group or tribe before buying the land. This caused a lot of
conflict about the validity of certain sales.

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LESSON 3: Treaty of Waitangi

Eventually, the unfair purchase of land

led to the New Zealand Wars. The New
Zealand Wars occurred from 1845 to
1872, between about 18,000 British
troops and about 4,000 Māori warriors.
It resulted in extensive areas of the
Waikato and Taranaki being confiscated
by the British.
After this time, the Native Land Court
was set up. This Court alienated more
Māori from their land. In 1860 Māori
held over 80% of all the land in the
North Island. By 1939, they only had
9% of the land.
The importance of the Treaty and the promises made in it to Māori
were gradually forgotten by the New Zealand Government. In
fact, the Treaty was never ratified by the British and it had no legal
force for over a century. One famous New Zealand case in 1877
established that the Treaty was a ‘legal nullity’ and the Courts or
government did not have to follow the terms of the Treaty.16 This
situation, unfortunately, continued in New Zealand until the 1970s.

According to British law, land was something that

What do could be owned by a person or small group of people.
You Think? According to Māori law (tikanga) land is something that
cannot be owned, it can only be cared for. What issues
do you think these beliefs about land ownership caused
between the two parties?

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LESSON 3: Treaty of Waitangi

The Waitangi Tribunal

In the 1960s and 1970s, Māori were involved in a series of protests

against the New Zealand Government. Although there had always
been some elements of protest towards the Government, this was
the first time that the protests were seriously listened to by the
Government.
The protests focused on issues that were important to Māori, such
as land rights, language rights, and other cultural rights. Having the
Treaty of Waitangi ratified was particularly important for Māori.
One outcome of the protests was the establishment of the Treaty
of Waitangi Act 1975. This law created a ‘Waitangi Tribunal’ where
Māori would be able to raise grievances. However, one key problem
with this law was that Māori could not raise grievances that had
happened in the past.
In 1985, the Treaty of Waitangi Act was amended so that the
Tribunal could investigate past grievances. This meant the Tribunal
was a much more effective tool in helping to create positive change
for Māori.

What is the Waitangi Tribunal?

The Waitangi Tribunal is an organisation that is established
under the Treaty of Waitangi Act 1975. It can hear claims from
Māori in relation to the breaches of the Treaty by the New
Zealand Government. The Tribunal investigates the claims
and then passes on recommendations to the New Zealand
Government. The Government does not have to follow the
recommendations made by the Tribunal.
The Tribunal is not like a traditional court. It is more flexible
than a court and it follows some Māori protocol. Evidence is
heard according to Māori tikanga (this may not necessarily be
accepted in a traditional court room).

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LESSON 3: Treaty of Waitangi

Check Your Answer the questions that follow.

Understanding

1. Why did Māori protest in the 1960s and 1970s?

2. What law was made in response to the protests? What did the law establish?

3. Why was the law initially seen as a failure?

4. How was the law altered?

5. What is the role of the Waitangi Tribunal?

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LESSON 3: Treaty of Waitangi

Law making process and

the Treaty of Waitangi

The Treaty of Waitangi is unable to make law on its own. However,

it still plays a key part in the law making process. The Treaty of
Waitangi plays an important role in:
a) law reform
b) judge-made law.
The Treaty of Waitangi may influence law reform and judge-made
law in a number of different ways. These include:

Recommendations from the Waitangi Tribunal

The Waitangi Tribunal may investigate a claim that has been raised
by Māori. They will produce a report on the claim. If the Government
accepts the recommendations it will create a bill and process this
through the Parliamentary law making process.
You will study how the Waitangi Tribunal influences law in the case
study in this lesson.

Cases brought to the courts by Māori

Cases may be brought to the courts about a specific Treaty-related
injustice or issue. Judges will make a decision which may redefine the
status of the Treaty of Waitangi and give Māori greater rights. One of
the key roles of the Courts has been the development of the Principles
of the Treaty of Waitangi. These principles have been developed as
general ‘themes’ from the Treaty and have been used by judges to
decide on cases that affect Māori. These principles include:
• the duty for Māori and the government to act in ‘good faith’ and
‘partnership’
• the responsibility of the government to actively protect Māori
interests
• the requirement of the government to make informed decisions
• the need for the government to remedy past grievances
• the right of the government to govern New Zealand.

Example: An example of how the Treaty has been used by

the Courts to influence the law is in the Ngati Apa decision.
In 1997, eight Māori iwi claimed in the Māori Land Court that
they should have the right to farm mussels on the seabed. The
Māori Land Court said that they did not have the jurisdiction to
decide whether the foreshore or seabed was Māori land. The
Court of Appeal, however, decided that under the Treaty, Māori
could have rights to the seabed.

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LESSON 3: Treaty of Waitangi

Public lobbying and protests

The New Zealand public may also use the Treaty of Waitangi to
protest areas where Māori are not given rights, or areas where
injustices have occurred. These protests will place pressure on the
government to make law changes based on the status of the Treaty
of Waitangi. The government, in order to keep peace, may then
make or amend law through the Parliamentary process.

Example: On 25 May 2009, a hikoi (protest) of 500–700 people

was held in order to protest the structure of the Auckland
super city. Protesters opposed proposed legislation that would
exclude Māori from having seats on the Auckland council.
In response to the protest (and other public disapproval), the
law was altered. The final law allowed for unelected Māori
representation on the super city council.

Check Your Describe each of the three ways that the Treaty of
Understanding Waitangi is involved in the law making process.

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LESSON 3: Treaty of Waitangi

Case study: The Māori

Language Act

In 1987, the Māori Language Act was established. This Act gives
the Māori Language (te reo Māori) official language status in New
Zealand, equal to English. It also created the Māori Language
Commission. This Commission has the role to promote the Māori
language throughout New Zealand.

This law has since been replaced by the Māori Language Act 2016,
which focuses on further developing the status the Māori Language.
It is important to analyse the formation of the Māori Language Act
1987 as this Act was essential to the development of the Māori
Language Act 2016.

Reason for the development of the law

The Māori Language Act 1987 was created for a number of reasons.
Most importantly, it was developed in order to meet the promises
made in the Treaty of Waitangi. In article 2 of the Treaty of Waitangi,
it says that Māori will have their taonga (treasures) protected. The
Waitangi Tribunal stated that the Māori Language is considered
a taonga to the Māori people. The Act was therefore created to
preserve the language as a taonga for the Māori people.
The Act was also created because the Māori language was facing
possible extinction. In 1975, less than 5 percent of all Māori school
children could speak the Māori language. Māori and the New
Zealand government both knew that if efforts were not made to
increase the number of te reo Māori speakers, the language may not
be spoken at all in a few generations.

What do Do you think it is important for te reo Māori to be

You Think? recognised? Why? Why not? Explain.

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LESSON 3: Treaty of Waitangi

Process of development
There are a number of key steps that led to the development of the
Māori Language Act 1987. These include:

Protest and changing attitudes

During the 1960s and 1970s, there was a lot of discussion and protest about
1st stage the status of the Māori language in New Zealand. Many Māori were concerned
about the low number of Māori language speakers. Many believed that it was
the role of the government to help Māori protect the Māori Language.

Claim with the Waitangi Tribunal

A claim was brought to the Waitangi Tribunal by two Māori organisations.
These organisations claimed that the Māori language should be given official
recognition. The claimants argued that the government had failed to protect
the Māori language as required under article 2 of the Treaty of Waitangi.
The claimants argued that Māori should have the right to use the Māori
language in all parts of society, including the courts, Parliament, and
government departments.
The Tribunal agreed with the claims, stating that the Māori language was a
2nd stage
taonga (treasure) and needed to be protected. They recommended to the
government that legislation be introduced that:
• allows people to use the Māori language in court or with government
departments if they choose to do so
• creates an organisation that promotes the use of the Māori language
• allows Māori to learn in the Māori language if they want to.
However, the Tribunal did not recommend that Māori be made a compulsory
subject in schools or that all documents must be translated into Māori. They
stated ‘we think it more profitable to promote the language than to impose it’.

Government decision to make legislation

3rd stage The Labour government put the Māori Language bill before Parliament. The bill
took the recommendations of the Waitangi Tribunal into account. The government
used the Welsh Language Act (from Wales) as inspiration for the Act.

Bill becomes law

4th stage
After following the Parliamentary process, the bill became law. It was given
royal assent by the Governor-General on 20 July 1987.

Note: In this assessment, you must refer to an existing law. it is

therefore important that you refer to both the Māori Language Act
1987 (repealed) as well as the Māori Language Act 2016 (the law
that replaced the 1987 Act).

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LESSON 3: Treaty of Waitangi

In your own words, explain each of the following

Check Your steps in the process of making the Māori
Understanding Language Act 1987. Explain the importance of the
Treaty of Waitangi in your answer.

Protest and
changing
attitudes

Claim with
the Waitangi
Tribunal

Government
decision
to make
legislation

Bill becomes
law

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LESSON 3: Treaty of Waitangi

Using the information in the previous pages, write a

Try it for summary for each of the following sections in relation to
Yourself the Māori Language Act 1987.

Area Summary
Reasons or
need for the
law

Key features
or steps
involved in the
creation of the
law

People or
organisations
involved in the
creation of the
law

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LESSON 3: Treaty of Waitangi

Differing viewpoints

Most New Zealanders have been supportive of the development

of the Māori language. Many see it as important - not only for
Māori, but for all New Zealanders. In the 1980s, some Māori
were prohibited from saying ‘kia ora’ (hello) to customers in the
workplace. However, these days it is common for people, both
Māori and non-Māori, to say ‘kia ora’ to each other.
Read below some of the viewpoints that different people have
had about the Māori language since the Māori Language Act
was established in 1987. These types of viewpoints have been
fundamental to the creation of the Māori Language Act 2016.

Pita Sharples from the Māori Party

‘Te reo Māori is a gift from our ancestors, for
us to share with all New Zealanders. The public
celebration of Māori language and culture
during the Rugby World Cup shows most New
Zealanders are ready and willing to accept the gift,
and acknowledge its value to our national identity.
Our education policy recognises that te reo Māori
is the birthright of all Māori children, it is an official
language of this land, and its value is greatly
enhanced if all New Zealanders can speak Māori.
It is appropriate for the education system to reflect
Te Tiriti o Waitangi (The Treaty of Waitangi) to
support the revitalisation of te reo Māori.’17

Professor Ghil’ad Zuckermann

‘Just look at the percentage of Māori children
who can speak Māori, it’s extremely low. We need
to aim to have 100 per cent of Māori children
speaking it natively.
Loss of language is far more severe than loss of
land. It’s a loss of culture, of intellectual sovereignty,
autonomy, self-identity. If you lose the land, at least
it’s still there. You can look at the mountain and
you can look at the lake, but when language is lost,
there’s nowhere to look. That’s it.’18

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LESSON 3: Treaty of Waitangi

University of Otago
‘In recognition of the status of te reo Māori as a taonga
(treasure) protected under the Treaty of Waitangi, and within the
spirit of the Māori Language Act 1987, the University of Otago
will endorse the right of students and staff to use te reo Māori,
including for assessment.’19

All the comments in the previous section were made

Try it for after the Māori Language was made an official language
Yourself of New Zealand. What do each of the people think about
the Māori language? What effect do they believe the
Māori Language Act has had?

Name of agent What effect do they think the law change could have?
Pita Sharples

Professor
Ghil’ad
Zuckermann

University of
Otago

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LESSON 4:

Law from
religion

Learning Objectives
In this lesson, you will learn about law from religion. By the end of
the lesson, you will be able to explain:
what law from religion is
the impact of religion in New Zealand in relation to the law.
You will also complete a case study on religion in relation to marriage
law. As part of the case study you will learn about:
• Marriage (Definition of Marriage) Amendment Act 2013
• reasons for change
• process involved
• differing viewpoints.

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LESSON 4: Law from religion

What is law from religion?

The laws of all societies are influenced by the religions that the
society follows or has followed in the past.

What do What is religion?

You Think?

The extent that a country is influenced

by traditions or religion will depend
on the status of the government. For
example, a country like Saudi Arabia in
the Middle East is strongly influenced by
Islam because Saudi Arabia is officially
an Islamic absolute monarchy. On the
other hand, a country like Japan is not
as influenced by religion as it is officially
a secular state. This does not mean,
however, that it is not influenced by religion at all. The legal systems
of all countries to a greater or lesser extent are influenced by their
past and this includes religious influences. However, in a secular
state, religion will not be an official deciding factor when new laws
are being made.

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LESSON 4: Law from religion

Religion in New Zealand

New Zealand is officially a secular country. This means that the

government is required to be neutral (have no opinion) on matters of
religion. The laws that the government makes should not be based
on any religion.
However, although New Zealand is considered to have no official
state religion, this does not mean that religion has played no part
in the development of law in New Zealand. Many of New Zealand’s
laws have been influenced by Christian ideals. Laws have been
influenced by Christianity because early Pakeha settlers in New
Zealand followed the Christian faith and British law was adopted in
New Zealand after the Treaty of Waitangi was signed.
Examples of laws that have been influenced by Christian traditional
values in New Zealand include the following.
• Laws relating to public holidays. We have public holidays at
Easter and Christmas because of the Christian faith.
• Laws relating to how people interact with each other in daily
life. For example, common law relating to negligence has been
influenced by religion. The religious idea of ‘love your neighbour
as yourself’ from Christianity has been applied to negligence law.
• Laws relating to marriage (such as who a person can and cannot
marry).
• Laws relating to crimes – ie what is and isn’t considered a crime.

Māori Spirituality
To a lesser extent, New Zealand law has also
been influenced by traditional Māori religion and
spirituality. For example, according to the Resource
Management Act 1991, Māori spiritual concerns
must be taken into account in certain situations.

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LESSON 4: Law from religion

Can you think of any other laws or areas of law in New

What do Zealand that have been influenced by either Christianity
You Think? or Māori spirituality? Note these laws down in the space
below.

How religion is involved in the law making process

As New Zealand is a secular state, religion is not officially involved
in the law making process. Although some countries may say, ‘the
Bible (or Qur’an) says this, so we should follow it in our law’, New
Zealand does not make decisions about new laws this way.
However, because many of New Zealand’s laws have been based on
religious concepts, and many people in New Zealand still have some
kind of religious faith, religion still plays a role in the law making
process. People of all faiths (Christian, Muslim, Hindu etc) are able
to be involved in the law making process and are able to make
submissions based on their own faith.

Lobbying for changes in legislation

Many religious organisations in New Zealand have a goal of helping
those in society who are in need. As part of this outreach, some
organisations lobby the government for changes in legislation that
would better help these people.

Reacting to proposed legislative change

Religious organisations also play a role in reacting to legislative
change that is proposed by the government. Many religious groups
submit media releases highlighting what their view is in relation to
proposed law changes.

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LESSON 4: Law from religion

Select committee submissions

Religious groups also make submissions to select committees about
changes to various laws. They present their view of how the law
should be, based on their religious faith. These views are then taken
into the account by the select committee.
For example, in 2018 a number of Christian groups have submitted
submissions to the select committee for the End of Life Choice Bill,
a bill that would permit people to choose to die through euthanasia
if enacted. Dr Stuart Lange of the New Zealand Christian Network
states, ‘The Justice Select Committee needs to hear from thinking
members of the public. The reality is, if people do not make a
submission, silence is interpreted as assent.’

Search through some online newspapers based in New

Zealand (such as www.nzherald.co.nz or www.stuff.
Research co.nz Find a situation where a religious group has given
Task their opinion on New Zealand law. Explain what the
opinion was about.

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LESSON 4: Law from religion

Case Study: Marriage Law

In this section, you will learn how religion has been involved in the
formation of marriage law. In particular, you will look at the role that
religion played in the creation of the Marriage (Definition of Marriage)
Act 2013.

Marriage is an institution that is based on religion and

What do tradition. What religions and/or traditions is marriage in
You Think? New Zealand based on?
Note: You only need to note down what you know
about the topic at this stage. You do not need to give a
researched answer.

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LESSON 4: Law from religion

History of marriage law in New Zealand

Marriage in New Zealand has traditionally been a voluntary union
between one man and one woman. The purpose of marriage has
been for the couple to build a life together and, in most cases, to
also have and care for children.
Marriage law in New Zealand came from British law. Although Māori
had their own system of customary marriage, the form of marriage
that has been recognised by the New Zealand government is
marriage based on British law.
The marriage law that New Zealand imported from Britain was
largely based on Christian principles.
The Bible includes verses such as:

“Haven’t you read,” he replied, they are no longer two, but one.
“that at the beginning the Creator Therefore what God has joined
‘made them male and female,’ together, let man not separate”.
and said, ‘For this reason a man
will leave his father and mother
Matthew 19:4-6
and be united to his wife, and the
two will become one flesh’ ? So

“.... each man should have his own him alone but also to his wife. Do not
wife, and each woman her own deprive each other except by mutual
husband. The husband should fulfil his consent and for a time, so that you
marital duty to his wife, and likewise may devote yourselves to prayer.”
the wife to her husband. The wife’s
body does not belong to her alone but 1 Corinthians 7: 1-4
also to her husband. In the same way,
the husband’s body does not belong to
“Wives, submit to your husbands, as
is fitting in the Lord. Husbands, love
your wives and do not be harsh with
them.”
“Marriage should be honoured by all,
and the marriage bed kept pure, for
Colossians 3:18-19
God will judge the adulterer and all
the sexually immoral.”

Hebrews 13: 4- 7

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LESSON 4: Law from religion

Examples of how Biblical values have been historically applied

include:
• making polygamous marriages (marriages between three or
more people) illegal
• making the husband the head of the household
• prohibiting divorce between couples
• having laws against adultery.
Although these biblical requirements have provided a basis for
marriage law in Britain, and subsequently New Zealand, it is
important to note that these laws have changed over time to reflect
the attitudes and needs of society.

Marriage Law in New Zealand

There have been a number of changes to marriage law in New
Zealand since the 19th century. These changes largely reflect the
changing attitudes of society, including changing attitudes towards
religion. In many ways, marriage has moved from being an institution
that is strongly based on religion, to an institution that exists to meet
the current needs of society, based on human rights.
For example, originally boys aged 14 and girls aged 12 were
permitted to get married provided that they had the consent
(permission) of their parents. However, in 1933 the minimum age
of marriage was changed to 16 years old. This law was probably
introduced because boys and girls were getting a better education.
There was no need for them to get married at such a young age.
Likewise, another example of changes to marriage law is in relation
to divorce. In 1898, divorce was only legal if one of the couples was
involved in an adulterous relationship or if one party left the other.
The situations where one party could divorce another was eventually
added to. The Matrimonial Proceedings Act 1963 contained a long
list of different situations where a husband and wife could divorce
each other. These included reasons such as drunkenness, neglect of
domestic duties, cruelty, and so on.
In 1980, divorce was fundamentally changed. Under the Family
Proceedings Act 1980, ‘no fault’ divorce was introduced. Instead
of looking at which spouse was at fault, the new law focused on
helping a failing marriage come to an amicable end.

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LESSON 4: Law from religion

Write some notes that highlight the main points

Check Your that were covered in this section. Make sure you
Understanding highlight the influence that religion and tradition
has had in relation to marriage law.

Same-sex marriage in New Zealand

A recent change to marriage law in New Zealand relates to same-
sex marriage. In 2013, the Marriage Act 1955 was amended. The
amendment changed the definition of marriage to enable couples of
the same sex to get married.
The law now states:
‘marriage means the union of 2 people, regardless of their
sex, sexual orientation, or gender identity’

Reasons for the change

The main reason for the change in the law was in relation to human
rights. Many people argued that two consenting adults should have
the right to marry each other, regardless of their gender.
Another reason for the law change was the changing attitudes in
society. Many people in society affirmed that couples in same-
sex relationships were no different to couples in heterosexual
relationships. Couples in same-sex relationships should therefore
have the same rights as heterosexual couples in relation to marriage.

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LESSON 4: Law from religion

Process followed
The process to change the law was the same as any other law
amendment process in New Zealand. First, the Bill had to be drawn
from the ballot, then it had to go through the parliamentary process
of three readings, a Select Committee stage, and royal assent.
The key difference for this law was the public interest in the
amendment. Normally, laws pass through Parliament with only
key stakeholders commenting. This law, however, was different.
Because marriage is based on religion and tradition, many people in
society had an opinion on the change in definition.
One key step in the process was the Select Committee stage.
During the Select Committee stage 21,533 individual submissions
were received. 220 people gave oral submissions in front the Select
Committee. According to Chris Auchinvole from the National Party,
submissions had three main themes.
1. The new law would be disastrous to society. It would start a
slippery slope and would affect all aspects of New Zealand
society.
2. The new law interferes with religion. Many marriage celebrants
expressed concern at being forced to perform marriages for
same-sex couples, even if this was against their personal
morals.
3. Marriage is an institution that is always changing to reflect
society. Allowing same-sex marriage is a necessary change to
reflect society’s current values and human rights.20
Another key step in the process was in relation to the actions
of various lobby and religious groups. Many groups tried to get
the public to support their viewpoint on the bill. For example,
the conservative Christian group ‘Family First New Zealand’ sent
brochures to the New Zealand public highlighting the possible
negative effects of allowing same-sex marriage. Many press
releases were also made by the group. Groups that were pro same-
sex marriage also made press releases informing the public why
same-sex marriage should be legalised.
It is important to note that the change in law was a conscience
vote for many Members of Parliament. A conscience vote occurs
when Members of Parliament make a personal decision based on
their own beliefs and morals. They did not have to follow the official
policies of the political party that they belong to. This meant that
lobby groups and the New Zealand public could target specific
Members of Parliament in order to try to get them to change their
vote.

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LESSON 4: Law from religion

Outline the key steps in the process of making

Check Your the law. Explain the role that religion played in this
Understanding process.

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LESSON 4: Law from religion

Differing viewpoints

This change in law caused a great deal of controversy. Some

sectors of society claim that marriage should stick with its religious
and traditional roots. They argued that changing marriage would
destroy the institution of marriage. Others argued that a change to
marriage was essential. They stated that it was a human right for
people in same-sex relationships to be treated equally. Some also
used religious arguments saying that an overall theme of the Bible is
to love others and treat others as equals.
Read the following viewpoints of different people involved in the law
change process.
Louisa Wall is the Member of Parliament who submitted the
Marriage Amendment bill. She is a member of the Labour party. In
her first reading of the bill to Parliament, Louise stated the following:

‘That sexual orientation is a ground of unlawful

discrimination is not a matter of dispute. In 1993
we as a country amended the Human Rights
Commission Act 1977 to outlaw discrimination
on a wider variety of grounds, including sexual
orientation. This is what we must always
remember when we discuss this issue. This issue
will make all citizens and people of New Zealand
equal under the law, given that, currently, same-
gender couples cannot obtain a marriage licence
from the State.’21

Tim MacIndoe is also a Member of Parliament. He is a member of

the National Party. He responded to Lousia Wall’s submission with
the following comments:

‘New Zealand may, indeed, be a secular society,

but marriage has historically been a religious
institution for Christians and for most of the many
other religions now represented with followers
in New Zealand. For that reason, this matter is
causing huge distress to many, and it is quite
wrong to say that changing the definition of the
word will not affect anyone else. Christians, for
example, believe that marriage was instituted of
God himself, signifying the mystical union between
Christ and his Church.’22
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LESSON 4: Law from religion

Many lobby groups from around New Zealand had strong opinions
on the legislative change.
Family First New Zealand, a conservative Christian lobby group,
strongly opposed the changing of the definition of marriage. Bob
McCoskrie, the director of Family First, stated the following:

‘Throughout history and in virtually all

human societies, marriage has always
been a union between men and women.
Marriage predates both the organised church and state. The
State should not presume to re-engineer a natural human
institution….Allowing only same-sex marriage on the basis of
love and commitment would open the door for polygamous
marriages’.23

The lobby group Marriage Equality, formed from various pro same-
sex marriage organisations throughout New Zealand, had the
opposite opinion. They believed that it was extremely important for
the definition of marriage to change to include same-sex partners.

Marriage Equality’s arguments were as follows.

• In our society, marriage is governed by civil law and not by
biblical values, for example we allow marriage between people
of different faiths or no faith. We also allow divorce although
some churches are against it. Using the religion argument
against LGBT couples is a double-standard.
• Some Christian churches currently solemnise LGBT marriages
and are discriminated against because the Government doesn’t
recognise these marriages in the same way it recognises the
opposite-sex marriages performed in other churches.24

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LESSON 4: Law from religion

For each of the viewpoints described above, highlight

Try it for the effect that the person (or lobby group) thought the
Yourself change to the law (to allow same-sex marriage) would
have.

Name of agent What effect do they think the law change could have?
Louisa Wall
MP for Labour

Tim MacIndoe
MP for National

Family First NZ
Lobby group

Marriage
Equality
Lobby group

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Glossary

adulterous a sexual relationship between a person who is married and a person who
is not their spouse
alienated transfer ownership of property to another person or group
amicable friendly
analysis examination, research
ballot the act or process of voting
claimant a person or organisation who makes a claim
commissions a group of people entrusted by a government or other official body with
authority to do something
confiscated taken away
consent giving approval
Crown Entity an organisation that is operated by the government
dominant having power to influence others
dubious not to be relied upon, suspect
extinction reduced to zero
founding first, original
grievance a complaint
heterosexual a person who is sexually attracted to people of the opposite sex
legislative legal
LGBT acronym for Gay, Lesbian, Bisexual, Transgender
lobby to influence a law maker
Members of a person who represents Parliament
Parliament
neutral having no opinion
nullity void, of no importance
ratified make officially valid
referendum a general vote by the public on a single political question
secular not connected with religion or spiritual matters
solemnise perform a ceremony for marriage
Supplementary proposed changes to a bill
Order Papers
te reo Māori the Māori language
tikanga Māori law and custom
validity having basic logic
voluntary done by a person’s own freewill

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References

Websites and court cases referred to in the text are included below.
Some websites may not be accessible at the time of publishing.

Alcohol Law Reform - First Reading

1 http://www.parliament.nz/en-nz/pb/debates/debates/49Han
sD_20101111_00000704/alcohol-reform-bill-%E2%80%94-first-reading

Alcohol in Our Lives: Curbing the Harm

2 http://www.lawcom.govt.nz/project/review-regulatory-framework-sale-and-supply-
liquor/publication/report/2010/alcohol-our-lives

Alcohol Law Reform - First Reading

3 http://www.parliament.nz/en-nz/pb/debates/debates/49Han
sD_20101111_00000704/alcohol-reform-bill-%E2%80%94-first-reading

Alcohol Law Reform - Second Reading

http://www.parliament.nz/en-nz/pb/debates/debates/speeches/49Han
4
sS_20110913_00000641/dalziel-lianne-alcohol-reform-bill-%E2%80%94-second-
reading

Sale and Supply of Alcohol Bill - Third Reading

5 http://www.parliament.nz/en-nz/pb/debates/debates/50Han
sD_20121211_00000024/sale-and-supply-of-alcohol-bill-local-government-alcohol

Alcohol in Our Lives: Curbing the Harm

6 http://www.lawcom.govt.nz/project/review-regulatory-framework-sale-and-supply-
liquor/publication/report/2010/alcohol-our-lives

Sale and Supply of Alcohol Bill - Third Reading

7, 8 http://www.parliament.nz/en-nz/pb/debates/debates/50Han
sD_20121211_00000024/sale-and-supply-of-alcohol-bill-local-government-alcohol

Booze plans make youth ‘scapegoat’

9 http://www.stuff.co.nz/the-press/news/4048959/Booze-plans-make-youth-
scapegoat

New liquor laws ‘dog’s breakfast’ - Dickerson

10 http://www.stuff.co.nz/the-press/news/8069014/New-liquor-laws-dogs-breakfast-
Dickerson

National’s Alcohol Reform Bill totally fails the public

11 http://www.scoop.co.nz/stories/PO1212/S00172/nationals-alcohol-reform-bill-
totally-fails-the-public.htm

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12 Pope v Police [2012] NZHC 1 (10 January 2012)

13 R v Ghosh [1982] QB 1053

14, 15 R v Hayes [2008] NZSC 3

16 Wi Parata v the Bishop of Wellington (1877) 3 NZ Jur (NS) SC 7

Brash needs to look at the law– Māori Party

17 http://www.scoop.co.nz/stories/PA1111/S00196/brash-needs-to-look-at-the-law-
māori-party.htm

Māori language ‘needs saving’

18
http://www.stuff.co.nz/waikato-times/news/7684379/Māori-language-needs-saving

Māori Language Policy - Nga Kaupapa ma te reo Māori

19
http://www.otago.ac.nz/administration/policies/otago003239.html

Marriage (Definition of Marriage) Amendment Bill — Second Reading

http://www.parliament.nz/en-nz/pb/debates/debates/50Han
20
sD_20130313_00000036/marriage-definition-of-marriage-amendment-bill-
%E2%80%94-second

Marriage (Definition of Marriage) Amendment Bill — First Reading

http://www.parliament.nz/en-nz/pb/debates/debates/50Han
21
sD_20120829_00000032/marriage-definition-of-marriage-amendment-bill-
%E2%80%94-first

Marriage (Definition of Marriage) Amendment Bill — Second Reading

http://www.parliament.nz/en-nz/pb/debates/debates/50Han
22
sD_20130313_00000036/marriage-definition-of-marriage-amendment-bill-
%E2%80%94-second

Bullet Points - Protect Marriage

23
http://www.protectmarriage.org.nz/wp-content/uploads/2012/09/Bullet-points.pdf

Why Marriage?
24
http://www.marriageequality.co.nz/why-marriage.html

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