The law requires academic freedom to be preserved and enhanced – but who does the policing?

Whose job is it to check that university authorities comply with the Education Act 1989?

We ask because of the widely reported goings-on at Massey University, which have culminated in students being denied the chance to listen to Don Brash, former Governor of the Reserve Bank, former leader of the National Party, former leader of the ACT Party, and the best known member of Hobson’s Choice.

Section 161 of the Education Act deals with the academic freedom which has been imperilled at Massey.  It says:

It is declared to be the intention of Parliament in enacting the provisions of this Act relating to institutions that academic freedom and the autonomy of institutions are to be preserved and enhanced.

For the purposes of this section, academic freedom in relation to our universities includes —

The freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions:

In the performance of their functions, the councils and chief executives of institutions, Ministers, and authorities and Crown agencies “shall act in all respects so as to give effect to the intention of Parliament as expressed in this section”

This aspect of the legislation is incorporated in a Massey University policy document which informs staff members of the standards of conduct expected of them as university employees.

The policy principles include:

  • The University accepts its responsibilities as critic and conscience of society, fostering and encouraging the testing of received truths and the creation of new knowledge, and the dissemination of these views with integrity and respect.
  • The University firmly supports, and seeks to give effect to, the exercise of academic freedom, which includes the rights to teach and assess students in the manner that academic staff consider best promotes learning, to undertake research, to question received wisdom, and to put forward or state ideas even if they are unconventional or unpopular. Academic freedom is circumscribed by the law, by the ethics of a staff member’s profession, and by the need to ensure the proper use of, and accountability for, the University’s resources.

We can’t find an exemption for vice-chancellors.

The nature of the harm that might be done to those of a delicate disposition among Massey students is easily gauged.  Brash’s speech notes have been published by the New Zealand Herald HERE.

He expresses disappointment in the previous Government:

I. They pledged to reduce the gap between NZ incomes and those in Australia, and utterly failed;

II. They pledged to make housing more affordable, and utterly failed

And he muses on prospects under the current Labour-led government

“In my own view, the present Government is likely to do a better job in making housing more affordable, but probably a worse job in closing the income gap with Australia

Hence Brash has not been silenced.  But students have been denied the chance to listen to him – and challenge him.

This has been noted by Michael Reddell at Croaking Cassandra, who says the story about the Brash ban has been written in terms of Massey’s Vice-Chancellor denying him the right to speak on campus. But…

“As far as I can see, Don Brash doesn’t have any particular ‘right’ to speak on campus, any more than you (assuming “you” aren’t a Massey student) or I do. “

The issue, rather, was about a Massey student society’s freedom to invite anyone they wish (operating within the law) to speak on campus.

“That should probably be where the focus is, including  adding the question of whether Professor Thomas [the vice-chancellor] thinks she should also have the right to ban altogether student groups that might happen to hold views she strongly disagrees with.”

The University of Auckland acknowledges the legislative requirement of universities to accept a role as critic and conscience of society  but says “the issue of what academic staff and students may or may not say is often a vexed one”.

Several important points arise from the Act’s provisions, the university says.

First, there is a clear intention that these academic freedoms be preserved and enhanced. They are critical to the functioning of a democratic society, and should not be given up or restricted lightly. Such privileges are essentially unknown in many societies.

Second, it is the provision that academic staff and students are accorded the freedom to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions that causes the greatest amount of debate, and sometimes complaints of misconduct. What one person regards as a new idea or controversial or unpopular opinion, another may regard as “patently false” or “insulting” or even “hate speech”. 

Third, the exercise of these freedoms must be conducted within the law and to the highest ethical standards. Those voicing opinions are not immune to – for example – the laws of slander or libel, or Human Rights legislation.

In other words, when considering whether a particular communication is appropriate, the university must balance the rights accorded academic staff and students under the Education Act against the constraints imposed by other aspects of New Zealand law, and the obligation all members of a civilised society have to treat each other with respect and do no unnecessary harm.

Another paper on the subject points out that academic freedom can only exist within an environment that encourages creativity, radical ideas and criticism of the status quo; and conversely, freedom is needed to express criticism.

Since a university’s performance in its role as critic and conscience of society is one aspect of its overall performance as an academic institution, the paper argues that the Academic Audit Unit (AAU) has an interest in monitoring it.

This paper contends

” … if academic freedom is as important as generally assumed, a university’s poor performance in supporting and encouraging it, will have detrimental consequences for teaching, research, and that institution’s contribution to the community.”


“Universities need to create an optimal environment within which academic freedom can survive and flourish. It is only when they espouse this ethos, that the exercise of the role of critic and conscience of society can be fostered and rewarded within the university sector as a whole.”

It is entirely fitting, then, that the AAU takes very seriously its responsibility to monitor the performance of New Zealand universities in this respect, the paper concludes.

The AAU since then has become the Academic Quality Agency for New Zealand Universities which provides external academic quality assurance for all New Zealand universities via a regular cycle of audits.

The AQA board right now is seeking two lay members with expertise in quality assurance for a three-year term beginning January 1 2019.

Don Brash might like to consider applying. Applications close on August 28.


2 thoughts on “The law requires academic freedom to be preserved and enhanced – but who does the policing?

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