Draft policy FAQs

Why has this policy been developed?

At Waipapa Taumata Rau, University of Auckland, we are committed to fulfilling our role as a critic and conscience of society and upholding academic freedom and freedom of expression. We want our University to be a place where ideas, knowledge and diverse opinions can be freely and safely expressed.

What is the purpose of the policy?

The purpose of this policy is to affirm:

• The right to freedom of expression of staff members and students and visitors to the University which they share with all people in Aotearoa New Zealand; and
• The academic freedom of the University, academic staff members and students.  

What is the French Model Code on which this draft policy is based?

The French Model Code was developed by the Hon Robert French AC, former Chief Justice of the High Court Chief of Australia, following his 2019 Review of Freedom of Speech in Australian Higher Education Providers. It set out a framework to protect freedom of expression and academic freedom, which many Australian universities have implemented in a way that is consistent with their individual legislative frameworks. While our draft policy is based on the Model Code, it has been adapted for an Aotearoa New Zealand and University of Auckland context.

Has this policy been developed in response to the coalition government’s requirement for funded Tertiary Education Organisations to have a free speech policy?

No. This draft policy has been in development for several years.  

What process has been followed to develop this draft?

The draft policy has been developed by an Advisory Group formed at the request of the Vice-Chancellor to propose a way forward for the University with respect to academic freedom and freedom of expression. The group has considered the context of employment agreements, policies and legal frameworks as well as recommendations previously received from the Senate Working Group on academic freedom and freedom of expression, and the Māori, Pacific and Equity Reference Group.

The Advisory Group began the process with a version of the French Model Code, which forms the basis of most Australian policies, adjusted for Aotearoa New Zealand’s specific legal context. Further research was then conducted on the legal context and requirements of the policy, concluding with the current draft.

Membership of the Advisory Group includes:

• Registrar
• A representative for the Director Human Resources
• Deputy General Counsel
• Provost
• Pro Vice-Chancellor Māori
• Pro Vice-Chancellor Pacific
• Director of Communications and Engagement
• Pro Vice-Chancellor Equity
• A student representative
  
• Chair of the Senate Working Party: Distinguished Professor Peter Hunter

What other policies and procedures are linked to this draft policy, and will they be amended?

The Advisory Group concluded that the University’s Code of Conduct sits well alongside the draft policy. The University’s Media, Public Communications and Statements Policy and the Events Management Policy may need to be amended to align with this new policy fully. This will be assessed once we have the final Freedom of Expression and Academic Freedom Policy.

Under this policy, can staff and students criticise the University?

Yes, the draft policy specifically acknowledges the freedom of expression right of both staff and students to criticise the University and that no action will be taken on the basis of their speech (or the form of that speech) alone. There are some limits set out in the draft policy. For instance, the expression must be lawful and should not impede the University from fulfilling its legal duties with respect to the well-being of staff and students more broadly. If criticism of the University does violate this policy, any disciplinary measures would follow those laid out in employment agreements and Disciplinary Procedures for both Academic and Professional staff.

Does the policy extend to expression in a personal capacity, such as on a private social media account or in private or informal settings where staff and students are not representing the University or its institutional views?

Yes. Staff carry greater responsibility to the University when exercising freedom of expression than students do because of the employment relationship and the principle that an employer may raise concerns about an employee’s private activities, where there is a connection to the employer and those activities are damaging to the employer.

When staff who are clearly connected to the University express themselves in a personal capacity, and this expression calls into question their ability to undertake their duties or may cause serious damage to the University, this could be treated as a breach of the policy. However, the policy is also clear that staff have the right to express views that are critical of the University and that no action will be taken on the basis of their speech (or the form of that speech) alone; something more which breaches the policy and/or causes damage to the employment relationship and/or the University would be required for action to be taken.

How will the boundary between freedom of expression and harm be determined?

The University would first consider whether the expression was unlawful and then whether the expression breached the University’s Addressing Bullying, Harassment and Discrimination Policy. This policy requires the University to consider whether the expression was intended to cause harm (serious emotional distress) to a person or group of people, if the expression would cause harm to an ordinary reasonable person, or if the expression did cause harm to a person or group of people. The University would also consider factors such as the extremity of language used, venue and reach of the expression.  

What consideration was given to institutional neutrality?

The majority of the Advisory Group agreed that, in most cases, the University should remain neutral. Furthermore, the majority (not unanimous) determined that a stance of total neutrality was not supportable as situations could arise when it would be appropriate for the University to express an institutional view. It was acknowledged that the institution must be discerning in these matters.