Submission on Freedom of Expression, 2025

Universities New Zealand Submission on the Education and Training Amendment Bill (No 2) 2025

June 2025

Introduction

This submission is from Universities New Zealand, the operating name of the New Zealand Vice-Chancellors’ Committee, a statutory body established under Section 311 of the Education and Training Act 2020 (the Act). Universities New Zealand brings the eight universities together to collectively support and advance the objectives of the Act – including quality assurance and collective review and approval of qualifications.

Submission
This submission focusses on the Freedom of Expression elements of the Bill.

All universities in New Zealand regard the protection of freedom of speech, academic freedom and the encouragement of robust and respectful debate to be essential to our work and critical to our purpose.

Given this enduring focus delivered via the current institutional polices, Universities New Zealand does not see that there is a problem requiring legislative change with respect to freedom of expression at our universities.

While we stand by this position, we do accept that the requirement for free speech policies is contained in the Coalition Agreement between the National Party and the ACT Party.

Our central goal in providing this submission is to ensure that legislative and regulatory requirements are workable and avoid the problems that similar legislation has caused overseas [see below].

The Bill, as currently drafted, we believe is appropriately high level and non-prescriptive given that more prescriptive requirements can be handled through regulations.

As currently drafted, the Bill can be made workable, subject to specific drafting changes to ensure clarity and consistency of application, as suggested below. Our proposed changes will allow the university sector to work with Government on implementing Freedom of Expression Statements, complaints processes, and reporting that draws overseas experiences and balances academic freedom and freedom of expression with other Bill of Rights obligations.

Avoiding undue compliance costs associated with annual reporting on complaints

Although the Bill is workable, it will increase regulatory compliance and cost for the sector particularly if amendments are not made to s281B(2) “which requires the nature and number of complaints relating to academic freedom and freedom of expression to be included in the council’s annual report”.

A similar provision is included in the Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021 (The Code of Pastoral Care) and it proved to be impractical. University staff receive a wide range of complaints and concerns and are encouraged to apply judgement and resolve anything that has merit quickly and informally. There are no mechanisms for tracking these issues or reporting on them centrally. Trying to impose mechanisms would be an extraordinarily expensive and pointless exercise.

For the Code of Pastoral Care, universities have ultimately agreed that their annual reporting on complaints will be limited to matters that were not resolved when first received, but that go through to a formal appeals stage. This has proven workable as all university appeals are formally recorded and tracked through to resolution.

We recommend:

Amend the proposed s281B(1) to “The council of a university must establish and maintain a complaints and appeals policy relating to academic freedom and freedom of expression.”

Amend the proposed s306(4)(h)(ii) to “a report on the number and nature of complaints appealed under the complaints and appeals policy established under section 281B for the year to which the annual report relates; and"

Regulations relating to annual reporting requirements for university council

We note that a new s651B is proposed which says that “the Governor-General may, by Order in Council, make regulations prescribing information relating to academic freedom and freedom of expression that must be included in the annual report of the council of a university…”

We also note that regulations made under s651B will be secondary legislation that requires gazetting, tabling in the House of Representatives, and that it may be disallowed by the House. Given that the regulations will be binding and can be used to make universities report on elements of academic freedom and freedom of expression beyond matters currently specified in the Bill, we welcome the oversight and transparency that will be required if regulations are made.

However, given the process for making regulations, we do suggest that the Minister should have the ability to make minor or non-substantive technical amendments to regulations without needing to take them back through the House of Representatives. A similar provision exists in s534B of the Education and Training Act for the Code of Pastoral Care for the same reason.

At the invitation of the Minister for Universities, Universities NZ has begun work on a consistent reporting regime that will facilitate the workability of these provisions.

Specific drafting changes

Institutional neutrality

Subsection 281A(2)(d) establishes that any statement on freedom of expression should stipulate that “universities should not take positions on matters that do not directly concern their role or functions”. To avoid uncertainty and inconsistency of application, it is recommended that further drafting be provided to establish which matters to “directly concern [a university’s] role or functions”. The University of Otago’s Statement on Institutional Neutrality notes that such matters may include: “the safety and wellbeing of staff and students; financial and regulatory concerns; sustainability; equity; ethical investment and obligations under Te Tiriti o Waitangi”. We would support drafting to this effect being included in the legislation.

Report on Institutional Neutrality at the University of Otago | Ōtākou Whakaihu Waka

Drafting clarification

Section 281A(2)(b) notes that the exercise of freedom of expression must be respectful and consistent with any statute made by the university. Subsection 2(e) provides that a university may limit expression by staff and students which is unlawful or disrupts its ordinary activities. It is not currently clear whether these restrictions apply consistently across different forms of speech.

For example, it is unclear whether invited speakers can be denied a platform if their speech is unlawful, or whether staff and students are expected to act in a respectful manner, consistent with university statutes. This risks ambiguity and inconsistency in how universities apply section 281A(2) and undermines the desire for consistency under subsection 2(c).

We propose that a clearer approach would be to apply the requirements of respectful, lawful and non-disruptive speech across all of section 281A(2) by including a new subsection (2)(h). We have prepared this wording based on the University of Otago’s Freedom of Speech Statement which was widely commended.

(h) universities may take reasonable steps to ensure that the exercise of freedom of expression at its premises or by its staff, students and/or invited speakers is respectful, lawful and does not disrupt the ordinary activities of the university and/or fundamentally undermine its character as an institute of higher learning.

Universities would not support additional legislative requirements

Universities would oppose any attempt to make the legislative requirements more prescriptive - particularly in any area that will make it even harder for universities to balance freedom of expression with other legislative obligations. We would similarly not support more prescriptive or onerous requirements around handling freedom of expression complaints or detailed expectations as to how universities should measure and report on how they are perceived as doing in the areas of freedom of expression and academic freedom by staff and students.

A good example of why overly prescriptive legislative requirements should be avoided can be seen through recent lessons from the United Kingdom.

In the United Kingdom, the original Higher Education (Freedom of Speech) Act 2023 included the ability of individuals to sue universities for alleged breaches of free speech protections and the Office for Students (the regulator of the university sector) had a mandatory requirement to investigate all complaints submitted under the scheme. A consequence of these provisions was a proliferation of frivolous and vexatious claims and weaponisation of the complaints process that actually had a chilling effect on free speech.

The UK legislation was subsequently amended so universities became primarily responsible for investigating complaints (with an ability to dismiss complaints that were clearly doxing, frivolous, vexatious, or below a certain threshold) and with the Office for Students maintaining oversight and the ability to review university decisions, where warranted, and to issue fines when necessary.

In New Zealand universities are having to navigate and carefully balance a number of competing legal obligations (such as balancing the different rights contained in the Bill of Rights and/or obligations in the Health and Safety at Work Act, and/or the requirements of the Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021.

An example of where these obligations have conflicted was seen in the recent Siouxsie Wiles Employment Court action against the University of Auckland. Wiles claimed the university had not done enough to protect her from harassment arising from making public commentary during the Covid period in line with her academic freedom rights and responsibilities.

Additional Freedom of Expression legislation will only increase the likelihood of universities facing more legal action.

Separately universities are increasingly having to cover health and safety driven costs of providing security to avoid disruption to core teaching, learning and research activities when controversial speakers are on campus. Universities cannot usually pass the costs through to cash-poor student clubs and societies, but also cannot reasonably oppose such events proceeding.

Although it is not currently specified in the legislation, the Minister for Universities has asked Universities New Zealand to work up advice on how each university might regularly survey staff and students on freedom of expression and to include results in university annual reports.

This also has potential to add significant cost if legislative requirements are overly prescriptive.

Some universities already have regular staff and student surveys that can be used as vehicles for additional questions, other universities do not run regular surveys or only survey intermittently. There will be significant additional costs for these universities in establishing and running a separate survey – along with substantial methodological challenges in ensuring that response rates to single-issue surveys mean results truly reflect the full spectrum of views at each university. Response rates for surveys solely on a topic like freedom of expression are likely to be low with responses skewed to those holding strong views at either end of the spectrum.

We saw this with the 2023 Academic Freedom Survey commissioned by the Free Speech Union which claimed that just 46% of those responding felt free to question received wisdom and to state controversial and unpopular opinions, but that failed at the time to note that the response rate was just 2.8% of the 16,000 people invited to participate.