New Zealand is too small for separate natural history or ethnographic museums.  Instead, the four largest museums (in Auckland, Wellington, Christchurch and Dunedin) are encyclopaedic general museums where science (natural history, e.g. botany, zoology, geology) and culture (human history, e.g. ethnology, history, applied arts) must co-habit.  Among their duties these museums must prominently promote their science half.  Science museums (and therefore the science part of encyclopaedic museums) have “an ethical responsibility to safeguard scientific integrity” and need “loyalty to facts and evidence.” 

Politicisation of museums

New Zealand museums have increasingly embraced identity politics.  This is evident in many museum planning documents.  Future Museum, Auckland Museum’s 2012 “strategic vision”, for example, includes two major policy documents, He Korahi Māori: a Māori Dimension, and Teu Le Va: Pacific Dimension.  The latter offers “pathways of acknowledgement and inclusiveness” within the museum, based on the idea that “Pacific people have a special place in Aotearoa.”  No other ethno-cultural groups get their own guiding documents. 

He Korahi Māori ensures a Māori dimension in “all of the museum’s plans and activities”.  What might this mean?  It is hard to imagine a Māori dimension to an exhibition of English pewter or Chinese porcelain, when pre-contact Māori society had no metals or pottery.  Importantly, He Korahi Māori overlooks that specific cultural dimensions have little relevance to science in museums.  This is because the scientific method serves to overcome the limitations of local cultural perspectives by inviting criticism from everywhere.  There is only one version of science, which is universal and understood internationally.  Investigations or findings are either science, open to any informed criticism, or not science.  Science has no shielded local or cultural varieties.  Despite Hitler and Stalin, there is no “Aryan science” or “communist science” with special bodies of protected knowledge.

Many museum planning documents push a particular view of the Treaty of Waitangi, and any perceived principles of the Treaty are political.  The original 1840 “Articles Treaty” can be distinguished from the recently-developed “Principles Treaty“.  The contemporary reinterpretation of the Treaty as a “partnership”, favoured by the political Left, is contestable.  Former Labour prime minister David Lange stated: “The treaty [of Waitangi] cannot be any kind of founding document, as it is sometimes said to be.  …  The Court of Appeal once, absurdly, described it as a partnership between races, but it obviously is not”. 

Auckland Museum’s administration now talks about challenging “colonial narratives” and making the museum “tikanga-led” (led by Māori culture, values and knowledge).  I checked word-counts in the two most recent annual plans of Auckland Museum and annual reports of the Museum of New Zealand Te Papa Tongarewa (Wellington).  All four documents show the same pattern: culture is privileged and science marginalised.  The word “science” appears 0–5 times in each document and science words like zoology, botany and archaeology get 0–2 mentions.  Meanwhile, the documents are swamped with cultural key words: Māori (44–81 mentions per document), iwi (= Māori tribes, 16–43), culture (9–37), mātauranga (= Māori knowledge, 7–26).  Te Papa’s recently-developed natural history exhibition gives further signs of ideological positioning.

Te Papa’s natural history gallery

In tandem with their large natural science research collections, museums provide secular space for major long-term natural history exhibitions presenting evidence-based explanations of the natural world.  These exhibitions contribute to a world-wide intellectual movement to advance science, a mission bigger than, and different from, parochial political or cultural concerns.  Museums may mount temporary exhibitions with different disciplines combined for special effect, but core, long-term galleries generally cover single broad subjects. 

Te Papa disrupted this traditional arrangement, when in 2019 it unveiled a new principal natural history gallery (Te Taiao / Nature).  Instead of devoting Te Taiao / Nature exclusively to science, as in the natural history galleries it replaced, Te Papa incorporated Māori cultural material throughout, to contrive a novel science-culture gallery.  Spiritual beliefs now sit alongside scientific knowledge.  To be clear, it is thoroughly appropriate that museum displays cover mātauranga Māori.  My objection is to the shifting of the Māori view of nature from ethnographic galleries (Te Papa has two permanent Māori galleries) to science galleries.  I question the asymmetry whereby human history galleries continue to present just culture, but science galleries now get one local cultural system mixed in with universal science.

Te Taiao / Nature is a new “nature and environment zone” that explains the natural world “through mātauranga Māori (Māori knowledge) alongside science”.  Exhibition developers refer throughout to the demigod Maui, who “can shapeshift into a bird, a lizard”.  “He helps us understand the nuances of Te Taiao [nature] from a Māori perspective.”  The Māori view of nature makes no distinction between nature and culture and includes mythology and spirituality (Roberts, M. Auckland Museum Annual Report 1999–2000: 45–47).  So, labels in Te Taiao / Nature state, for example, that the jostling of tectonic plates is “the shifting of Ruaumoko, god of earthquakes”.  A “mauri stone placed by a hinaki [eel trap] kept eels thriving”.  The creation story of Maui fishing up the North Island gets a mention.  

Museums need to maintain academic standards but Te Taiao / Nature makes a category error.  Mātauranga Māori is the counterpart, not of science, but of the folklore about nature that all societies around the world developed from their beginnings.  Modern science emerged before and during the European and North American Enlightenment, transcending local folkloric explanations of the natural world and becoming an international system.  Mixing parochial mātauranga Māori and international science may confuse visitors and undermine young people’s developing understanding of science.  Local academics have recently noted, for example, that science and mātauranga are “intrinsically contradictory approaches to knowledge that resist both combination and interrogation of one by the other” (Anderson, A. 2021, [Letter to the editor], Listener 277(4211): 6–7) and that placing science and indigenous knowledge alongside each other “does disservice to the coherence and understanding of both” (Ahdar et al. 2024, World science and indigenous knowledge [letter], Science 385(6705): 151–152).  Putting a system that depends on unrestricted openness to criticism, as if on a par with a system that depends on protection from criticism in the interests of faithful transmission, is problematic.

By putting the Māori view of nature in the single science gallery, Te Papa seems to promote the postmodernist ideas that there are no universal truths and that all knowledge is culturally derived.  This confused and simplistic ideology seeks to undermine science and other narratives construed as Eurocentric and colonial.  Te Taiao / Nature implies by its mixed content that science is unremarkable—just one of many equivalent world views—and that indigenous “ways of knowing” are somehow equivalent to science.  By shrinking its science contribution in this way, Te Papa wavers from its truth-seeking mission.

Risk to reputation

Until recently, science remained unaffected by postmodernism, an ideology that many consider has damaged the humanities.  The imposition of postmodern views in the science sphere is a serious concern that scientists must oppose (Krauss 2024, Alan Sokal’s joke is on us as postmodernism comes to science, Wall Street Journal). 

To protect their public credibility and reputations, here are three suggestions for New Zealand museums:  1.  Regain political neutrality in your organisational viewpoints.  2.  Restore science and science thinking to its equal place as a core museum component alongside culture.  3.  Maintain or restore science galleries, which by definition can present only knowledge, not a mixture of knowledge and belief.

Museums could choose to continue traditional pride in the universals of science and world cultural heritages alongside increasing support for the renaissance in Māori culture and knowledge.  This does justice to all and minimises reputational risk.  They should avoid the fashionable politics of aggrandising one while playing down another.  Making science exhibitions share space with cultural content, and challenging “colonial” narratives, is risky.  If politicians, donors, and the visiting public tire of a bias of culture over science, then visitation and funding may be threatened.

Brian Gill has a PhD in zoology from the University of Canterbury.  He was Curator of Land Vertebrates at Auckland Museum for 30 years.  Brian publishes in ecology and palaeontogy and has undertaken field-work in New Zealand, Australia and Pacific Islands.]

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As Provost, Prof. James holds one of the university’s most senior positions. That made it all the more troubling to see how weak a grasp she has on the concept of free speech, something universities are required to uphold in the Education and Training Act.  

Prof. James’ piece is a series of reflections on Victoria’s panel discussion on free speech, which was held last year. ‘This event,’ she correctly says, ‘stirred strong feelings.’ But she then goes on to describe the event and the response to it in terms that can generously be described as misleading.  

Prof. James summarizes the response to Victoria’ free speech event as follows (to use her punctuation):  

What surfaced, from one direction, was genuine anxiety about amplifying views that might cause harm.  What this provoked from the other direction was, at best, a mischievous and provocative misinterpretation of the word “postponed” (swapping it for that most charged of words; “cancelled”).  At worst it was vitriolic petulance, best summed up in the quote, by one of the parties; “Good news, kids. It’s OK; words aren’t violence.”  

How Prof. James knows how genuine the anxiety about certain people’s views was is not clear. It is worth noticing, though, that many of the claims that student activists made about how worried people were about speech strained credulity.   

A few students, for example, were described as ‘freaking out’ over ‘right-wing voices,’ those voices apparently belonging to Free Speech Union director Jonathan Ayling and one of us (Michael), neither of whom are especially right-wing. VUWSA President Marcail Parkinson, for her part, said she was concerned that students would not have been able to ‘avoid that area’ – that is, the Kelburn campus’ central ‘Hub’ – ‘if they didn’t feel comfortable being around the debate.’   

But it seems hard to believe that anyone would be seriously discomfited by Ayling or Michael’s speech. Ayling spent three years at Vic, and Michael spent a decade there, both fairly recently. In neither case have there been reports of serious trauma being caused by their speech.   

Prof. James asserts that this ‘genuine anxiety’ provoked ‘at best, a mischievous and provocative misinterpretation of the word “postponed” (swapping it for that most charged of words; “cancelled”).’   

‘Postponed,’ of course, usually implies that the event is question has remained basically the same, but has simply been shifted to a different date. That is obviously not what happened in the case of Victoria University’s ‘free speech’ event. The original event was going to feature four speakers and be held in the Hub, a public area at the heart of Victoria’s Kelburn campus. The event that actually took place featured eight speakers and was held in a lecture theatre. It also had a changed format that ensured there was no exchange of arguments among the panellists. Most reasonable people would agree that saying that the original event was ‘cancelled’ would be perfectly fair.   

It is also not true to describe the response to the cancellation of the first event as ‘at best…mischievous and provocative.’ Sean Plunket invited VUWSA President Marcail Parkinson onto The Platform to discuss the cancellation. Jonathan Ayling was able to remind VUW leadership via the The Post that universities have an obligation to ‘allow for ideas to be thoroughly tested and for robust debate to occur.’ And Michael was able to make a number of important points about Victoria University, free speech and diversity, both in The Post and in an episode of our Free Kiwis! podcast.  

Finally, Prof. James describes a social media post by the Free Speech Union stating that ‘words aren’t violence’ as ‘vitriolic petulance.’ If the Provost of Victoria University views a simple statement of fact as ‘vitriolic petulance,’ what does that suggest about the climate for free speech there? At the very least, Prof. James’ reaction should remind us that what New Zealand academics describe as ‘harmful’ or ‘violent’ speech is often simply speech that they disagree with.

Prof. James goes on in her piece to reflect on the way ‘the internet has provided incredible ease of connection, and simultaneously created communication cul-de-sacs, that trap people in isolated cliques and sycophantic claques.’ She notes that free speech is protected in the UN Declaration of Human Rights alongside freedom of thought, and interestingly takes from this an ‘encouragement to pause before we express our opinions.’ And she reflects on how her ‘privilege is being in the white majority’ and in ‘revelling in robust argument,’ something she somewhat unexpectedly characterizes as ‘my approach to debate.’  

Prof. James ends her article with ‘a last word on words’ that deserves to be quoted in full:  

when I was walking to work a few mornings ago a pile of leaves was swirling down the curb and my mind said, “there is the wind”. The wind, though, was all around, strong and invisible and shaping the way I leaned into is as I walked.  We choose to notice some words, the lively, swirling ones; or the ones that blow stinging dust into our eyes.  We need to remember to notice all the other words; that have shaped our environment, our thoughts, and twisted some of us into beautiful, windswept oddities.  

This kind of lyricism is obviously something that recipients of Oko are free to spend some portion of their mornings on if they feel so inclined. But there are at least two things about James’ ‘thing about words’ that we found quite disturbing.  

The first is that this is an article sent to all academic staff by a very senior administrator (i.e. boss) at one of our leading universities. It is on the freedom of speech, the keystone principle of both liberalism and democracy, and a topic on which there is (understandably) an enormous literature in fields such as political theory, the philosophy of law, and intellectual history. Obviously, a full panoply of footnotes and scholarly references wouldn’t have been appropriate in an op-ed in a staff newsletter. But some indication that James wasn’t thinking about this most important of topics for the first time might have been reassuring.  

This is especially the case in view of the fact that we have been having a debate about free speech and academic freedom across the English-speaking world for at least a decade now (though admittedly this debate has tended to be more lively outside the academy than inside it, for obvious reasons).   

We have tried to contribute to this debate ourselves, most substantively in the report we released with the New Zealand Initiative last year. In it, we presented a number of surveys of academics and students, a selection of anonymous testimonies from academics, and a catalogue of incidents involving academic freedom that have taken place on our campuses over the past decade.   

Prof. James doesn’t have to cite our work. But the fact that she seems to feel no need to even mention any of the now overwhelming evidence that we have a problem with free speech at New Zealand universities is interesting, to say the least. ‘Can the modern University be the place where robust, relevant debate can happen?’ she asks, before immediately answering her own question, astonishingly blithely, ‘We already are!’   

It is of course true that a lot of ‘robust, relevant’ debate does take place at our universities. But it is also true (as several different surveys have now shown) that substantial numbers of academics and students feel uncomfortable discussing a few crucial topics, including the Treaty of Waitangi and the nature of sex and gender.   

Prof. James’ column appeared at just the right time, as the government was preparing its revisions to the Education and Training Act, revisions that will include enhanced protections for academic freedom. Draft legislation has now been released.   

What Prof. James’ column shows, yet again, is that New Zealand universities cannot be trusted to uphold their statutory or ethical obligations to academic freedom and the freedom of speech. Senior administrators either do not understand free speech, actively dislike it, or are not willing to openly defend it, and the same can be said for a good proportion of New Zealand’s academics. As Prof. James’ piece reminds us, they are often not even willing to educate themselves on the issue or to engage with the now plentiful evidence that academic freedom in under threat in an honest way.  

So make no mistake: senior administrators at our universities have neither the wit nor the wherewithal to restore genuine academic freedom themselves. It is vital not only the academic freedom legislation that is currently before the house passes, but also that it has teeth, and doesn’t naively trust our largely anti-free speech university managers to police themselves.

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Does this apply to the university sector? Universities have a very high degree of institutional autonomy, which is a critical safeguard that protects academic freedom and research integrity. In return for this freedom, universities bear duties. Our ability to innovate and meet the needs of our society depends on nurturing the resources of the university sector wisely and well.

So it’s pretty important that those in charge of universities do their jobs well, and unless we assume they are both infallible and paragons of virtue, there needs to be accountability somewhere in the system. 

Holding universities accountable: the Commission and the councils

Who holds the universities to account? The current law provides for two main avenues of accountability: one via the universities’ annual reporting and funding agreements with the Tertiary Education Commission and the other via the council that each university is required to have. The law endows university councils with a lot of authority. Councils formally make or approve university decisions and internal policies (or delegate responsibility for them) on pretty much everything the university does as a corporate entity. Of course, the actual day to day running of a university is delegated to the Vice Chancellor, who is effectively the CEO. Councils have the critical responsibility of appointing the Vice Chancellor and holding that person to account for his or her management of the university.

This means it is a big deal who gets to be on the council and how they get to be there. What does the law say? Actually, not that much. The law says councils must have between 8 and 12 members, with 3 or 4 of these appointed by the minister. A few types of people are disqualified (undischarged bankrupts, for example) and a few types of people must be included: a student representative, two staff representatives (one academic, one non-academic) and at least one council member must be Māori. And there’s general language about needing to ensure representativeness, appropriate skills and experience, and ability to perform their duties as members.

Beyond that, the law basically leaves university councils to decide for themselves how they will operate. Section 279 of the Act says: ‘An institution’s council may make statutes relating to the appointment of members..’ Even the minister responsible for the universities needs to consult with the council before deciding on the 3 or 4 individuals he or she gets to appoint: Section 278(7) says that ‘Before making an appointment under this section, the Minister must seek, and consider, nominations from the relevant council.’

Council roles to be filled at the University of Auckland

So councils get to write their own statutes setting out how they appoint members. What do these statutes say? I’ll take the University of Auckland’s one as an example. Others may be different, but the University of Auckland is our country’s largest. It is also in the process of appointing four council members. And, because the current Vice Chancellor resigned only a few months after being reappointed by the current council, the council is tasked with the weighty responsibility of choosing a new Vice Chancellor over the coming months.

The council revised its procedures for appointing its own members three times in the last three years. Its 2023 statute sets out desirable qualities in council members and notes they can be appointed for a maximum of four years and a maximum of three times – so one could serve for up to 12 years. The statute says the Vice Chancellor is always a member of the council, by virtue of being Vice Chancellor. The statute also sets out the procedures for the election of staff and student representative members. There’s another document – made by the council – that gives a bit more detail on how exactly members get appointed or reappointed. This shows that the central role is played by something called the VCRERC – the Vice-Chancellor’s Review and Executive Remuneration Committee. This committee gets to specify what skills and experience members should have, before a call for expressions of interest in joining the council is made. The VCRERC also gets to view these expressions of interest and draw up a shortlist, to present to council, along with its recommendation. 

The powerholders answerable to.. themselves

Who is on the VCRERC? It is a committee of the council itself and comprises just four people: the Chancellor, who chairs the council, the pro-chancellor (effectively the deputy) and chairs of the council committees for finance and audit.

A look at its responsibilities shows that the VCRERC really is the centre of power on the council. As well as reviewing and recommending appointments or reappointments of council members, it also has the responsibility of ‘Reviewing and managing the performance, composition and succession of Council.’

What all this boils down to is that the council, the body charged with holding the university’s paramount manager, the Vice Chancellor, to account: a) includes the Vice Chancellor; b) determines for itself how it will operate; c) appoints and reappoints itself (with the exception of the 3 elected members and the minister’s appointees – but it gets to nominate ministerial appointees; d) reviews its own performance.

Managing conflicts of interest

All pretty cosy. There’s a cute provision for managing conflicts of interest in the appointment of council members: ‘If any member of VCRERC is a candidate for appointment as a Council member, that VCRERC member will not be present or participate in any part of the appointments process for the relevant position including the receipt and consideration of expressions of interest.’ So (for example), when considering the expressions of interest in positions that are currently vacant or up for reappointment, should the current Chancellor wish to be reappointed as the alumni member, she will excuse herself as a member of the VCRERC, which she has led since 2021, while the rest of the committee considers any competing expressions of interest received for the alumni role she currently fills on council. No problem at all.

Another quirk of the council appointments process is that the council’s appointments statute stipulates that the university’s Pro Vice-Chancellor (Māori), a member of the university’s executive team, ‘is to be invited to attend meetings of the VCRERC to assist the VCRERC… when the appointment of a Māori member is being considered.’ So the council member with particular responsibility for monitoring the university’s performance with respect to Māori interests – performance which is led by the Pro Vice-Chancellor (Māori) – is appointed on the advice of that same Pro Vice-Chancellor. Taken together, we may not have a chumocracy, but we surely have a system vulnerable to chumocracy and all the risks associated with it. Of course, everyone may be doing their job honourably and competently. Nothing I have written here suggests otherwise. But it’s a system that bears some similarities to what historian Peter Hennessy calls the ‘good chaps’ theory of British government. That’s a system that depends on everyone being a self-restrained good chap – which is to say, a system that is vulnerable to decay and capture.

Photo by Roberto Carlos Román Don on Unsplash

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The Minister of Education, Erica Stanford is determined to introduce a knowledge rich curriculum for all New Zealand students. What does this mean? First, it is a standardised curriculum which ensures that students across the country receive the same high-quality knowledge. That knowledge consists of academic subjects with content selected for its value and justified for its veracity. Furthermore, the content must be designed so that it is coherently organised and built progressively from the most basic to the more complex.

Second, it is about planning for teaching. It is here that teachers take the designed national curriculum and turn it into effective teaching plans suitable for their school and their students. The latest ideas from cognitive science about secondary mental abilities, time perception, memory load, and feedback are needed at this stage. They help connect the content to students’ thinking processes.

Third, both good curriculum design and planning for teaching set the foundation for the actual teaching. Many teachers know their subjects well and use teaching methods that best connect students to rich content. They will welcome a knowledge-rich curriculum because it is what they have taught for years. We know and respect those teachers. The real benefits will be for those teachers and students who have been disadvantaged by eighteen years of a localised curriculum.

This ambitious knowledge-rich curriculum will link Erica Stanford to Peter Fraser. His commitment in the 1940s to prescribed subject content laid the foundation for the first-rate education system enjoyed by the post-war generation. Stanford’s knowledge rich curriculum will be as momentous and as far-reaching as Fraser’s. However, its success is not yet assured. The professional class which benefited most from that post-war subject-based curriculum has worked tirelessly to dismantle the source of its privilege in a strange alliance of decolonisation and socialism.

This ambitious knowledge-rich curriculum will link Erica Stanford to Peter Fraser. His commitment in the 1940s to prescribed subject content laid the foundation for the first-rate education system enjoyed by the post-war generation. Stanford’s knowledge rich curriculum will be as momentous and as far-reaching as Fraser’s. 

We can thank the recent secondary school incident for revealing what this alliance looks like in practice – a junior English class, a video playing, a teacher instructing how to analyse the video’s tone and mood. In the video, How colonisers went from learning to reo Māori to trying to exterminate it, students hear the authoritative voice of sociolinguist, Dr Vini Olsen-Reeder declaiming, Once the pakeha government was established here, from there the desire grew to exterminate the Māori people.

The video’s content is either wrong or seriously distorted. Such propaganda will be difficult to teach in a knowledge-rich subject that requires the selection of content to be justified. That’s the sticking point – who justifies the content? What criteria are used?

In the coming months, the public will be consulted on the draft English curriculum. This is right and proper – it is not a curriculum for teachers alone, but for the nation.  It is here, in the national discussion about the subject of English that I predict a simmering conflict will surface. Some, like me, regard school English as the study of language and literature in the English language. For others, English is the tool of the capitalist coloniser, intent on locking the colonised into a permanent state of subjugation. Their demands are for the decolonisation, then indigenisation, of the entire education system.

It is unsurprising that English is at the centre of the gathering storm, although History and Science are not far behind. English has a very particular role – that of creating society’s cultural repertoire. When we study English at school we are taught, or should be taught, the content and conventions of our nation’s most widely spoken language. New Zealand’s democratic institutions, social practices and universalist values were developed in English. It is the language of the 19th century colonial era and of 20th century nation building. According to one secondary school principal, the most effective way to decolonise the nation is by removing English, that dangerous language of the Eurocentric coloniser from the school curriculum.

New Zealand’s democratic institutions, social practices and universalist values were developed in English.

If we agree that the subject is the study of English language and literature, then the content selected must be justified. A straightforward process, one might think. But no, at the very source of the creation and justification of academic knowledge is the wellspring of the conflict. It is in the nation’s universities that decolonisation and indigenisation are being promoted. School subjects which are drawn from university disciplines and accountable to their rules and methods, will be hostages to the unaccountable ideologies of our decolonising universities.

English as a school subject draws in the main from the disciplines of literary criticism (including Shakespearean studies), linguistics, sociolinguistics, and history. Decolonising those disciplines removes all means of accountability – those methods of empirical evidence, logical argument and ongoing criticism which ensure that disciplinary knowledge is always on trial and always subject to rejection, revision, or provisional confirmation. These methods are what gives the disciplines, and by extension those who practise them, authority and status.

Although Dr Olsen-Reeder does not identify himself in the video as a university lecturer, his title and sociolinguist label convey authority. Teachers and high school students are likely to take him at his word. If anything, thanks are indeed due to the secondary school incident mentioned above for providing us with a glimpse of a decolonised education system. It should alert us to the difficulties faced by those tasked with introducing a knowledge rich curriculum.

If you contribute to the consultation of the draft English curriculum, I ask that you justify what you want taught. The content must have value not only for its literary beauty, its grammatical precision, its vocabulary richness, but it must challenge students. When teachers introduce young people to abstract content beyond their immediate experience, the students develop the secondary cognitive abilities necessary for the complexities of modern life. 

A decolonised curriculum does not provide quality content. Instead it locks young people into emotional responses. But emoting is not thinking. Abstract thinking develops only when students are confronted by complex content. A knowledge-rich English curriculum offers both that content and the development of the mental skills needed for the modern world.

Professor Elizabeth Rata is an international curriculum expert. She is a co-author of Developing Curriculum for Deep Thinking: The Knowledge Turn. Springer.  

https://link.springer.com/book/10.1007/978-3-031-74661-1.

Cover photograph of Peter Fraser by S P Andrew Ltd: Portrait negatives, reference 1/4-020106-F, Alexander Turnbull Library Collection. Available at https://natlib.govt.nz/records/23146991. Used with permission of the National Library of New Zealand.

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They’ve been hanging around for a while, those principles. A mention in an 1975 Act passed mostly unnoticed, but a low profile reference in a 1986 law on state-owned enterprises proved consequential. That mention paved the way for a landmark court decision in 1987. Since then the courts and the Waitangi Tribunal have been interpreting references to the ‘principles of the Treaty’ now scattered plentifully across legislation. In doing so, they have been changing New Zealand’s constitutional order.

Parliament has never defined these principles.  The principles are also not fixed. So somebody has to continually interpret them. That somebody turns out to be judges and appointed members of the Waitangi Tribunal. As noted in a government-issued guide that the Waitangi Tribunal references on its website:

 ‘The Courts and Tribunal have emphasized that the principles of the Treaty are not set in stone and that they may change as the Treaty partnership evolves. Accordingly, they have not developed an exhaustive list of principles and continue to refine their explanations in response to new circumstances.’

The principles now affect almost all areas of law and public policy. Few of us are untouched, with the principles regularly cited to justify public policy decisions on everything from health and education to conservation and urban planning. It is now common to hear legal professionals refer to the Treaty and its principles as forming part of New Zealand’s constitution. Indeed a group of King’s Counsel, in marking their objections to the Treaty principles bill, also appeared ‘to be questioning the constitutional right of Parliament to legislate in these circumstances.’ Judges and other public sector decisionmakers defer to these principles as if they do have constitutional status.

A constitutional revolution

This makes for a de facto constitutional revolution. One of the country’s foremost Treaty scholars, Claudia Orange, has referred to the change in the status of the Treaty as revolutionary.

Most attempted revolutions fail, so it is interesting to figure out why this one succeeded. The ‘principles Treaty’ bears little relationship to the actual historical Treaty. The courts have explicitly rejected the possibility of an ‘originalist’ interpretation of the Treaty.

So how did the constitutional hijack happen? After all, New Zealand is a democracy in which parliament has traditionally been regarded as sovereign. Did the legislature vote to curb its own powers? Sort of. The constitutional hijack required parliamentary complicity.

Palmer’s plan to clip parliament’s wings

The story starts with a politician-cum-legal scholar who, way back in 1979, decried the ‘unbridled power’ of the New Zealand parliament. That man, Geoffrey Palmer, got himself elected to parliament and attempted to legislate for constitutional change that would clip parliament’s wings and entrench the Treaty of Waitangi. It appeared initially that he failed: over two years, public submissions were largely opposed. The resulting Constitution Act of 1986 did not mention the Treaty of Waitangi (except in a parenthetical schedular amendment to the Treaty of Waitangi Act 1975), let alone elevate it to constitutional status. New Zealanders were very explicitly not prepared to go along with Palmer’s ambitions.

But Palmer was not deterred. What he could not achieve openly, he set about bringing about by stealth. His plan was to litter legislation with innocuous-sounding references to undefined ‘principles’ and ‘procedures’; things so devoid of substance that most parliamentarians would not bother to oppose them. He counted on the courts to then give teeth to the new order over time.

We know this was a deliberate plan because Palmer himself tells us about it. In 1992, soon after retiring from politics and returning to educating law students (and many of the current generation of judges), he published New Zealand’s Constitution in Crisis. There, on page 76, he writes:

‘The logic of the approach was as follows… Some parliamentary action by way of legislation was needed to make a base. But if that legislation itself redressed the grievances it would run into the problem that the majority of the community would oppose it. If, on the other hand, legislation was used to set up processes, and procedures and the principles on which decisions should be based were stated, it may be possible to get even a majoritarian legislature to act. The initial commitment required was to a process. No tangible outcome was provided by the legislation itself. What should be done was to be decided only after judicial or quasi-judicial processes had assessed individual cases. First it was necessary to give the courts something to interpret. Such was the nature of the approach I brought to both statutory incorporation of the Treaty in statutes, and extension of the Waitangi Tribunal to examine grievances back to 1840.’

The intent to sideline parliament is explicit:

The hijack appeared to work precisely as planned over the following decades. Whether it can continue to work is another matter.

The architects of New Zealand’s Treaty principles bill, whether they are aware of it or not, are part of a broader pushback against perceived excesses of judicial power in many countries. The ‘judicialization of politics’ has been underway for more than thirty years, moving decision-making away from arenas subject to democratic control and accountability to tribunals, courts and quasi-judicial panels of experts. A backlash now looms in many places.

The Treaty principles bill will no doubt fail to clear its second and third readings. But the attempt at clawing back parliamentary control has already made a difference. No one can now say with any credibility that the Treaty principles are ‘not political.’

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The first question in politics is “who rules?” It’s at the forefront of the debate about David Seymour’s Treaty Principles bill, which holds that the Government has the ultimate right to govern and Parliament has the full power to make laws. Te Pati Māori argues that Māori never ceded sovereignty and should hold governing power over themselves. 

But there’s another power struggle taking place in the background of this debate: a quiet but profound contest between Parliament and the courts over the power to make laws. In the week that Seymour’s bill passed its first reading, an open letter from forty-two members of the King’s Council called on the Prime Minister and the Attorney General to abandon the legislation, and it contained the aside “even if Parliament can legislate in this way (which is uncertain)…”

Crown Law’s advice on the bill struck a similar note, advising that if Act’s proposed principles became law after a public referendum, the courts would likely ignore them.

The Rise of judicial activism

New Zealand’s political system is based on the Westminster model. Parliament is supreme, and its laws cannot be challenged by the judiciary, whose role is to interpret them. This is very different from the US model of government, in which the Supreme Court can invalidate laws and executive actions that it finds to be in breach of the constitution.

Former Prime Minister Sir Geoffrey Palmer has long argued that New Zealand should move closer to the US model. In this model, New Zealand adopts a written, codified constitution that defines fundamental rights and freedoms and empowers the judiciary to invalidate legislation in conflict with the constitutional framework.

There has never been much political appetite for Palmer’s reforms. Still, some legal commentators argue that the courts have quietly moved towards this model, adopting the principles of the Treaty – which are undefined in law – as a de facto constitution. 

Lawyer and political commentator Liam Hehir has written a background piece on this topic. He identifies the eminent judge and legal scholar Lord Cooke of Thorndon as the patron saint of New Zealand’s judicial activism, citing his judgement in a case known as Taylor v New Zealand Poultry Board in which Cooke decided that some common law rights are so fundamental Parliament cannot abridge them.

Hehir writes: “And so a case about illegal egg sales ended up as an important inflection point for future questions about who governs New Zealand… Over time, Cooke’s philosophy has gained traction within New Zealand’s legal community. His influential stance has fostered a subtle yet persistent view that the courts, not Parliament, should have the final say on fundamental rights and principles. This has led to a culture within the legal profession that, consciously or unconsciously, questions Parliament’s authority, promoting a quasi-constitutional role for the judiciary.”

Who makes the law? Reining in the Supreme Court

The issue has also been taken up by Roger Partridge, chair of the New Zealand Institute who recently published a report titled “Who makes the law? Reining in the Supreme Court.” In a recent Herald column Partridge notes recent comments by Chief Justice Dame Helen Winkelmann that the courts are “where the decisions in society that can’t be worked out in other ways are taken,” because judges “take the hard decisions in society.” 

He cites the 2022 Peter Ellis case, in which the court cited Tikanga Māori as being applicable in its decision as a form of common law, finding it to be “the first law of New Zealand and not secondary to the colonial common law”, despite it having no apparent relevance to Ellis or his case.

Partridge writes: “The Court bypassed ongoing work by the Law Commission on this very issue and overturned established rules for recognising tikanga as law. It did this without providing a clear new framework. The result is a quagmire. Neither judges nor lawyers now know when or how tikanga should be considered in future cases. The Ellis decision reveals a court more captivated by the allure of making grand symbolic gestures than concerned with the careful, methodical development of the law. Such judicial activism creates precisely the sort of uncertainty and confusion that proper legal development should avoid.” 

Geoffrey Palmer has persuasively argued that New Zealand’s Executive branch is too powerful, leading to poor-quality legislation and poor governance. Successful democracies have checks and balances that constrain the branches of government.

It’s possible that Palmer’s proposals would be beneficial to New Zealand, although progressives looking at this form of government to advance their politics should consider the current state of the US Supreme Court. But, as Partridge points out, the current judiciary has no democratic mandate to take on a political role. Nobody voted for them. And the Treaty is not a constitution.

Hehir notes in this regard, “If the Treaty of Waitangi is law, it bears many of the hallmarks of the worst law making. It is sweeping, vague and open to extensive interpretation, which can lead to inconsistent application and unpredictable judicial outcomes.”

He warns, “Such a system would paralyze decision-making, forcing policy into a state of perpetual review, litigation and delay. We have had a foretaste of this following the election of the current government, where it feels like almost every initiative has been called a Treaty breach, regardless of campaign promises.” 

How a Constitutional crisis plays out

What would happen if a New Zealand court directly refused to implement a law passed by Parliament? This would undoubtedly provoke a constitutional crisis.

Parliament has the right to remove judges for misbehaviour or incapacity, but it is a lengthy process. Although judges in New Zealand have resigned, none have ever been removed.

We’re more likely to see the courts continue to offer expansive interpretations of laws that alter their effect rather than refuse them. The likely consequence of this will be the politicisation of the judiciary, which will also bring us closer to the US model.

In Westminster systems, the courts are supposed to act as apolitical arbiters of existing laws. However, if the courts themselves insist on functioning as political actors, politicians will respond by appointing judges who advance their policies and values. Even though it will not pass, David Seymour’s Treaty Principles Bill has highlighted a profound tension at the heart of our democracy. 

Dr Bryce Edwards

Political Analyst in Residence, Director of the Democracy Project, Victoria University of Wellington

Note to Media: This analysis can be published by any media outlets for free under a Creative Commons copyright-free license. Attributions should include a link to the Substack page.

Key Sources

David Harvey (Listener): Law & society: Should our Supreme Court address societal issues where Parliament has failed to do so? (paywalled)

Liam Hehir (Blue Review): KCs and the Courtroom Bands (paywalled)

Roger Partridge (Herald): Attorney-General and Chief Justice reveal contrasting visions of judicial power (paywalled)

Cover image from https://democracyproject.substack.com/p/democracy-briefing-foundations-of

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As Johnston and Kierstead have described, in New Zealand our ratio of non-academic to academic staff of 1.5 to 1 is much higher than in Australia, the UK, or the USA (where it is about 0.8 to 1). If research-only staff are treated as academic staff this ratio still only improves to 1.4 to 1. Numerous “managers” and support staff have appeared in areas such as Human Resources, Health and Safety, Student Learning Support and Pastoral Care, Outreach, Māori and Pasifika directorates, and Diversity, Equity, and Inclusion (DEI).

This growing administrative cost has to some extent been offset by the growth in international student business. By 2019, over 117,000 enrolled students delivered the country a total economic benefit of around $5Bn. University international 2019 student fee revenue was about $600m, or around 15% of universities’ total revenue.  International students pay up to five times the domestic student fee rate. Covid-19 dramatically reduced the number of international students studying within New Zealand, though partly replaced by students enrolled for on-line studies. Mid-2020, universities faced a year-end financial shortfall from lost international enrolments of about $200m, and this was expected to rise to $400m in 2021. The financial hangover for the universities has been major, damaging, and aggravated by financial commitments to ongoing new building projects.

Looking now at what and how we teach, it is usual for the universities to periodically rationalise their course offerings with the aim of greater administrative efficiency and to contain costs, particularly where courses may have low enrolment numbers. I note at the outset that what is important is not necessarily the low enrolments in a particular course, but the total of the taught Equivalent Full-Time Student (EFTS) count for each academic staff member. Many courses are important but will have low enrolments because they are specialised, or they are pitched at postgraduate level. A staff member’s personally attributable EFTS, added up over their undergraduate and postgraduate teaching plus supervision commitments, tells us how much they earn for the university. Most academics who teach large enrolment courses teach small enrolment courses too. This reality should be part of the analysis in current curriculum transformation projects. If a narrow view is taken simply of the enrolment numbers per course, the richness and diversity of course offerings will be damaged.

A critical and controversial factor in the current course rationalisation exercises is the increasing pressure to include courses that reflect relativist postmodern views (“other ways of knowing”) and Te Ao Māori (specifically matauranga Māori), even within science programmes. This situation raises questions that must be answered.

The University of Auckland has stated, “The rationale is to reduce workload to allow time to develop relational pedagogies, to address timetabling constraints, and to reduce costs….”.  One can infer that “relational pedagogies”, mean relativist views that come through in traditional knowledge courses, for example, where we are seeing courses offered in science programmes that do not strictly stand the test of being taught science, but instead may deliver a mix of observational knowledge, cultural lore, myth, mysticism and animism or vitalism. Most of us support the inclusion of such content in history, sociology or anthropology courses, but not in the Science-Technology-Engineering-Mathematics (STEM) area. This situation comes into closer focus if such courses are intended to replace pre-existing science courses, as appears to be the case.

As one colleague at the University of Auckland said, “It’s quite extraordinary that we are launching a course called “Epistemological justice: indigenising STEM” while at the same time we’re being forced to cut science courses.”  

There is a clear logical fallacy in any university course that seeks to indigenise STEM:

• As regards STEM subjects, when European colonists arrived in the late 18^th and into the 19^th century, Māori scientific/technical knowledge was approximately at the stage of other developing societies at or pre-3,000 BC, acknowledging that the spiritual/vitalist/animist parts of matauranga Māori would have been differentiated form those of other societies by the names for, and qualities ascribed to, flora, fauna and inanimate objects, and also to gods such as Ranginui/sky father.  This was a society without the wheel, and without mathematics, physics, chemistry or biology, but which had extensive phenomenological understandings of food sources, that fire cooks and can cause burns, that clean water is necessary for life, that some plants have medicinal properties, weather patterns, and navigation by the sun and stars, etc. Such knowledge is of very considerable interest from a historical point of view, clearly desirable to preserve for cultural reasons, but of current relevance to STEM courses only if it complements modern science in a functional way, as unpalatable as that is to those who would include it.
• STEM rests heavily on knowledge discovered during the liberal enlightenment from the 17^th century up to today, and modern science (not “Western” science, as many non-Western societies Asia, the Middle and the far East contributed, for example) went through similar earlier processes of knowledge development through observation of nature and phenomenological discovery, as did matauranga Māori.  It then developed through new discovery to the present day.
• Unless it adds science content to a STEM degree programme, to insert matauranga Māori or other indigenous knowledge back into modern STEM education means excluding something else that had been deemed important in any one course, with older knowledge and belief that has long been superseded in the same way in which Mechanical Engineering students no longer study the steam engine – as I confess we did when I was a student!  STEM course content is continually updated to reflect the latest scientific discoveries, computational techniques, and the advent of AI, for example.  When I was a student, we were learning about how transistors worked, as they were then a recent development. By contrast, we spent little time on obsolescent radio valve technology. Why should we be obliging students to study something in the sciences that should be sitting in a course outside modern science (e.g. history, history of science, anthropology). Abbot et al., in “In Defense of Merit in Science” compare liberal epistemology, under which the scientific method falls, versus critical social justice theory, where indigenous and traditional knowledge find a more comfortable home. To “indigenise” STEM can only mean to re-introduce older knowledge and belief into courses where it is no longer relevant. This in my view can only be for ideological or political purposes, as otherwise it defies logic.

My foregoing remarks are not intended to diminish or disrespect traditional knowledge. However, curricula in STEM degree programmes are constantly under pressure to introduce new content and drop material that can be let go.  Even this is problematic, and past considerations have been given to increasing the Bachelor of Engineering (Hons) from four to five years to avoid dropping essential content.  In our modern world we cannot afford to impose traditional knowledge content in science programmes for purely ideological reasons (or to determine academic staff career progression based on their acceptance or adoption of this ideological position).  Apart from the potential diminishment of the overall scientific content of the degree, doing so will inevitably reduce the standing of these degree programmes internationally.

Photo by Ram Kishor on Unsplash

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Cover Photo by Khashayar Kouchpeydeh on Unsplash

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These may be necessary, if painful, adjustments. Universities need to stay relevant and efficient. But what exactly is being prioritised in these restructuring and rationalisation moves? Academic merit, research excellence and ability to teach the content that students will need? Or is it part of an effort to fundamentally rewire the university to serve different agendas? Could this even be a way to silence staff who have spoken out in support of science, academic freedom and free expression? The procedures and criteria set out in recent staffing reviews raise questions.

Look at the Faculty of Education and Social Work document at the bottom of this post. For some reason they don’t seem keen for the world to see it. We’re interested in the criteria for deciding whether an individual academic is safe – getting a green light on their traffic light system. For example, getting a “green” rating on research requires an output far beyond what is usual for even high performing social scientists (20 scholarly articles in two and a half years). What this means is that research performance effectively drops out of the criteria – almost no staff will be “green” on research. So other criteria will come into play. Such as “Contribution to the faculty’s expertise in Mātauranga Māori “. Take a look at appendices E and G.

Professor Elizabeth Rata, who has spoken and written publicly in defence of science, was among many staff in the old Faculty of Education and Social Work who recently received notice that their positions were “in scope” in a staffing review. We reproduce the letter sent by the Free Speech Union to the Dean of her faculty in response:

30 July 2024

Prof. Mark Barrow

Dean of the Faculty of Education and Social Work

m.barrow@auckland.ac.nz

Academic Staffing Review – Prof. Elizabeth Rata

Good morning, 

1. The Free Speech Union is a registered trade union with a mission to fight for, protect, and expand New Zealanders’ rights to freedom of speech, conscience, and intellectual inquiry. We believe that freedom of speech is not only a legal principle, but a social good that allows for people in modern liberal democracies to peacefully, freely advocate for the causes they care about without risking unjust retribution.
2. The Free Speech Union represents Prof. Elizabeth Rata, a sociologist of education and a professor in the School of Critical Studies within the Faculty of Education and Social Work (“the faculty”) at the University of Auckland (“UoA”).
3. It has been brought to our attention that the faculty is currently undergoing a restructure, more specifically, an ‘Academic Staffing Review’ (“the review”). Following the faculty’s release of the outcomes of Phase One of the review, Prof. Rata was informed that her position is ‘in-scope’ and may be disestablished. 
4. Of concern to us is how data relating to ‘strategic contributions’ will be used by the Selection Committee to recommend whether positions be disestablished or not. One of these ‘strategic contributions’ is contribution to the faculty’s expertise in mātauranga Māori. As you will be aware, there is significant public debate as to whether mātauranga Māori constitutes science – a debate sparked by a letter signed by seven UoA professors (including Prof. Rata) to the New Zealand Listener in July 2021.
5. Under section 267(4) of the Education and Training Act, UoA staff have the right to academic freedom which includes freedom “within the law, to question and test received wisdom, to put forward new ideas, and to state controversial or unpopular opinions stipulates academic freedom in relation to a university.” In performing its functions, the UoA must give effect to this by preserving and enhancing academic freedom and autonomy. Underpinning this is the requirement for institutional neutrality.
6. The role of mātauranga Māori in our education institutions is a controversial political issue. Considering an employee’s contribution in this area as part of a restructure process discriminates against employees who do not share the UoA’s institutional view of the role and status of mātauranga Māori in education. Setting aside the fact universities should remain apolitical and neutral, the UoA is in clear breach of its obligations under the Education and Training Act as it is requiring its staff to adopt a specific view on mātauranga Māori. 
7. Further, the Selection Committee’s consideration of ‘strategic contributions’, specifically, contribution to the faculty’s expertise in mātauranga Māori, may be in breach of the Employment Relations Act, namely:
   1. Section 4 (Good Faith)
   1. Section 104 (Discrimination)
8. To be clear, this letter is not notice of a Personal Grievance. Rather, we wish to bring to your attention our concerns with the unlawful nature of the ‘strategic contributions’ and invite your comment on whether the consideration of contribution to expertise in mātauranga Māori will be withdrawn in light of the above.
9. We look forward to hearing from you.

And here’s the Faculty document:

Cover Photo by Khashayar Kouchpeydeh on Unsplash

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To any neutral observer, though, the event will have made clear quite how far our universities have strayed from being the politically disinterested, open institutions we pay them to be, and how urgently government intervention is now needed to make them fit for purpose again.

The first sign of that was the set-up. Smith had originally invited two speakers willing to defend free speech as traditionally conceived: Jonathan Ayling of the Free Speech Union, and my New Zealand Initiative colleague Michael Johnston. 

When a few students said they were ‘freaking out’ over these ‘right-wing voices,’ though, Smith re-organized the event with Ayling, Johnston, and eight other speakers, none of whom would describe themselves as right-of-centre. He also moved the event from VUW’s central, open ‘Hub’ to a closed lecture theatre, apparently in response to VUWSA President Marcail Parkinson’s concerns that students wouldn’t have been able to ‘avoid that area…if they didn’t feel comfortable being around the debate.’

Most of the speakers at the event also seemed worried about the harm speech could cause. Anjum Rahman of the Inclusive Aotearoa Collective stressed that students should feel ‘uncomfortable’ during discussions at universities, but not ‘unsafe,’ which she left tantalizingly undefined. Khylee Quince, the Dean of AUT’s law school, felt sure that some on campus ‘pose a threat to’ the ‘safety and well-being’ of others, though she, too, declined to precisely define these terms. 

Queensland University of Technology’s John Byron also seemed unsure about speech, which, he said, could ‘shut down other people’s speech,’ something that was exemplified at Victoria only a couple months ago, when top US diplomat Bonnie Jenkins was shouted down by protestors. 

Byron, though, didn’t mention that incident, and didn’t seem to be confining his remarks to the kind of heckling that literally prevents someone from being heard, and that has long been recognized as falling outside the protection of the First Amendment in the United States. What he had in mind was ‘intimidation’ and ‘humiliation’– two more terms that seemed to cry out for further definition.

Speakers for the most part failed to engage with the evidence that New Zealand universities have a problem with free speech. Several speakers dismissed the Free Speech Union’s 2023 survey of academics for its methodological weaknesses, but failed to mention other surveys without those weaknesses that came to similar conclusions, such as the 2022 FSU survey of academics, the 2022 Heterodox New Zealand survey of undergraduates, and the University of Auckland’s internal survey, all of which showed that substantial numbers of people were fearful of voicing their views. 

Anjum Rahman seemed particularly keen to explore important philosophical questions such as whether incitement to violence could be considered free speech, but didn’t bring up more concrete cases such as Massey’s deplatforming of Don Brash in 2019 or AUT’s deplatforming of Daphna Whitmore in 2022. 

Some speakers did, however, think that academic freedom faced some threats at our universities. University of Auckland Professor Emerita Jane Kelsey said that in her forty-year experience of the university, ‘those who’ve been shut down have not been those [on the right] – it’s been because the donors could potentially be upset, or “We can’t have the Uyghur woman speaking because the Chinese are going to be upset.”’

In the report on academic freedom that I am currently preparing for the New Zealand Initiative, we have found a number of lines of evidence which suggest that over-powerful managers, the idea of universities as businesses, and the Chinese Communist Party do indeed pose a threat to academic freedom in this country. A considerable body of evidence, though, also points to a threat from the left within universities, and this was something that only Victoria University of Wellington’s Nicole Moreham even acknowledged, though she also took clear to qualify this ‘pressure from the left’ on free speech as ‘well-meaning’ and only ‘slightly overzealous.’

Most of the speakers were also keen to dismiss the idea that new legislation was needed to protect academic freedom, either in the form of a requirement that universities have academic freedom policies (mentioned in the coalition agreement), or of a New Zealand equivalent of the Higher Education (Freedom of Speech) Bill that has just received royal assent in the UK, which would allow students or academics whose free speech rights have been violated to seek redress through the courts.

For Nicole Moreham, this would undermine universities’ autonomy, though it is not clear how it would have any effect on academics’ freedom over their own research and teaching (other than to protect it against bullying administrators and colleagues). Several speakers seemed to see government intervention on this front as hypocritical, as if everyone calling for the change was a cartoon libertarian, and as if left-wing academics suddenly opposing government intervention couldn’t equally be accused of hypocrisy. After the event, Nic Smith told journalists that there was ‘an inherent irony’ in ‘legislating for free speech,’ but didn’t say whether he would be calling for the repeal of existing legislation for free speech such as the New Zealand Bill of Rights. 

My own experience as a lecturer at VUW over the past decade has long convinced me that the universities cannot be reformed without outside intervention. Those opposing the restoration of free speech and political neutrality within our universities are simply too numerous, too powerful, and too shameless. Nic Smith’s ‘free speech’ event has only confirmed me in this view. 

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