NZ Council for Civil Liberties

Submission: Education and Training Amendment Bill (No 2)

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About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.

Introduction

2. The Council believes that freedom of expression, as protected by the New Zealand Bill of Rights Act (BORA), is a vital right in a democratic society. 

3. However, the Council opposes clauses 11-13 of the bill and asks for them to be removed.

4. Clauses 11-13 of the bill require Universities to “develop and adopt” a statement on Freedom of Expression. The Council agrees with the Attorney General that:1

Proposed new s 281A would breach other rights if it required universities to adopt and act in accordance with a statement that required them to prioritise s 14 over other rights in situations where doing so would amount to an unjustified limit on that other right or rights.

or as the Ministry phrased it:2

The Minister’s preferred policy option is to require universities to issue a freedom of speech statement that includes specified requirements and place a duty on university councils to ensure the university actively protects free speech, with the same oversight and monitoring settings we recommend above. Our key concerns with this approach are the potential for unintended consequences, including negative impacts on disadvantaged groups within the university community, and the risk that prescriptive requirements are deemed inconsistent with the New Zealand Bill of Rights Act 1990 (BORA).

Does the limiting measure serve a sufficiently important purpose?

5. The Ministry of Education is clear that they do not believe that there is a problem.  The Council concurs.

6. In the Regulatory Impact Statement the Ministry writes “Given that we have not consulted on the problem or potential options, we would favour maintaining the status quo.”3

7. The Ministry further writes “the concerns are anecdotal and we do not have good information about how accurate or widespread these issues might be.”4 and “Discussions with university leaders suggest that they do not consider the [opinions of the FSU or NZI] to be representative of the issues and perspectives within their institutions.”5

Limited Consultation

8. The Council is greatly disappointed that closed consultations were performed.  Given that the Ministry identified early that there were BORA concerns, there should have been widespread consultation. It is disappointing that the Council’s freedom of expression has been limited in the development of a bill on freedom of expression.  Even if the committee does not share the Council’s opinion of ourselves, surely we can all agree that the Law Society, among several others, should have been consulted.

International commitments to limit hatred

9. The Council notes that article 20 of the International Covenant for Civil and Political Rights requires us limit freedom of expression so that:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

10. Further, article 4(c) of the Convention on the Elimination of Racial Discrimination requires that we:

Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

The Attorney General’s Bill of Rights Compliance Report

11. As we quoted earlier, the Attorney General takes for granted that prioritising freedom of expression over other BORA rights is an unjustified limit of those other rights.  The Council concurs.

12. We will now quote the Attorney General’s mental gymnastics in their entirety.6

While the Bill makes it mandatory for a university to have a statement on freedom of expression that is consistent with the stated principles, each of the principles, as drafted, states what a university should do, not what it must do. This leaves room for the university to comply with the Bill of Rights Act:

• proposed new s 281A(2)(d) – that universities should not take positions on matters that do not directly concern their role or functions – would be of concern if it meant that universities could never take a position on a particular topical or controversial issue if that did not directly concern the institutions’ role or functions. In other words, universities should not take a position on matters that do not directly concern their role or functions, but could still do so if not doing so would unjustifiably limit their right to freedom of expression.

• proposed new s 281A(2)(e) – that universities should not limit the freedom of expression of staff or students, except where the exercise of free expression is likely to be unlawful or to disrupt the ordinary activities of the university – would be an issue if it required universities to prioritise freedom of expression over other rights. It is limited, however, by what is lawful, which includes compliance with the Bill of Rights Act.

• proposed new ss 281A(2)(f) and (g) provide that universities should seek to uphold their role as critic and conscience of society by providing a platform for invited speakers of diverse viewpoints, and universities should not deny the use of university premises by an invited speaker because of that speaker’s ideas or opinions. It remains open to universities, however, to also take the position, either explicitly or implicitly, that they should provide a platform and allow the use of premises to these speakers “unless there is a reason not to do so that justifies limiting freedom of expression”. [Emphasis in original]

13. The Attorney General’s ruling is that the bill does not violate BORA because, while the bill requires Universities to say that they will violate BORA, it does not require them to keep that promise. Universities, like all other public agencies, are obliged to interpret all legislation to maximise compliance with BORA. The bill forces the Universities to say one thing, and BORA requires them to do another.  Finally, lying to the public is not a BORA issue, so the Attorney General concludes that the bill is compliant with BORA.

14. The Council respectfully submits that if the only way in which clauses 11 to 13 can be made compatible with BORA is by putting an obligation to lie to the public in primary legislation, that a more reasonable approach would be to remove those clauses.

15. The Council thanks members of the Committee for their time and consideration of our submission.

  1. BORA report paragraph 19 https://www.justice.govt.nz/assets/Documents/Publications/08042025-Education-and-Training-Amendment-Bill-No-2.pdf ↩︎
  2. RIS page 2 https://web-assets.education.govt.nz/s3fs-public/2025-03/RIS%2010.%20Cabinet%20paper%20-%20University%20Freedom%20of%20Speech%20Legislation_Redacted.pdf ↩︎
  3. RIS page 2 ↩︎
  4. RIS page 7 ↩︎
  5. RIS page ↩︎
  6. BORA report paragraph 20 ↩︎