The intimidation of the Fellows
Seventy notable academics have sent a motion of no-confidence to the Royal Society over its handling of the professors’ letter to the Listener — but some of their colleagues say they are too fearful to sign it. Graham Adams reports.
If anyone ever believed universities are institutions where academics can speak their minds freely and openly, the stoush sparked by the letter that seven University of Auckland professors sent to the Listener last July should have thoroughly disabused them of that notion.
What should have been an uncontroversial statement that mātauranga Māori is “not science” and therefore should not be included in the NCEA science syllabus led to a wave of condemnation and vilification of the professors. And this despite the fact they made it clear that indigenous knowledge was valuable both “for the preservation and perpetuation of culture and local practices” and in “key roles in management and policy”. What’s more, prominent Māori scholars such as Professor Sir Mason Durie had already acknowledged that science and indigenous knowledge are incommensurable.
Even the professors’ own Vice-Chancellor, Dawn Freshwater, hung them out to dry with what one British journalist described as a “hand-wringing, cry-bullying email” that referred to the “considerable hurt and dismay” the letter had caused staff, students and alumni.
Three of the professors, Robert Nola, Garth Cooper and Michael Corballis, were Fellows of the Royal Society NZ, but — rather than supporting their right to speak publicly about their concerns about mātauranga Māori in a science syllabus — it responded with a statement on its website that said their views were not only “misguided” but caused “harm”.
Last November, it also instigated disciplinary action against Nola, Cooper and Corballis after complaints were laid. (Corballis has since died.)
After a barrage of criticism from famous international scientists, including Richard Dawkins, Jerry Coyne and Steven Pinker, our premier academy for science and the humanities abandoned its pursuit of the two professors in March. But if it hoped that would be the end of the matter it was sorely mistaken.
Last week, 70 of the society’s more than 400 Fellows signed a letter to the society calling for a no-confidence motion to be debated at the 56th hui ā-tau o Ngā Ahurei Annual Fellowship on 28 April.
It began: “Many of us have lost confidence in the current Academy Executive and Council, whose actions seemingly have brought the society into disrepute, shutting down useful debate and bringing international opprobrium from leading scientists.
“We are further concerned about the lack of agency that Fellows have following the many restructures of the society over the last several years, and the spending of fellowship fees to cover lawyers’ costs and, presumably, public relations consultants to defend the society’s very poor processes and actions.”
The three specific objections made in the letter were to the statement published on the society’s website last year (described as “ill-conceived, hasty and inaccurate in large part”); the way the society handled the complaints against Professors Nola and Cooper; and lastly the “unfortunate” fact the pair felt compelled to resign.
As the letter put it: “It is extremely unfortunate that this process has led to the resignation from this Academy of two of its distinguished Fellows. One is a renowned philosopher of science, and the other is perhaps the strongest scientist of Māori descent in the society and is someone who has been active in supporting Māori students in education for decades, and who, along with other experts in science, offered an expert opinion that was rejected by the society as being without merit, and characterised as racist by members of the Academy Executive (and current and former Councillors).”
The motion was moved and seconded by two of the nation’s most prestigious and accomplished mathematicians, Distinguished Professor Gaven Martin and Distinguished Professor Marston Condor.
Among the 70 signatories were internationally renowned heavyweights, including Distinguished Professors Brian Boyd and Peter Schwerdtfeger — celebrated scholars in literature and theoretical chemistry respectively — and Professor Alan Bollard, a former Governor of the Reserve Bank, and chief executive and secretary to Treasury.
Having a substantial chunk of the Royal Society’s Fellows formally object to its handling of the Listener letter and the fallout is momentous but what is also remarkable — and remarkably depressing — is that the number of signatories would have been even higher if other Fellows had not feared for their livelihoods and careers by signing.
Gaven Martin’s covering letter included these dismal paragraphs: ”Sadly several other Fellows have also indicated they will vote in favour, but because of the potential harassment and bullying they believe they would receive (from some current and former members of the Academy and the RSNZ Council, and from colleagues in senior and other positions within their university), they do not wish to disclose their names in this document, especially if it becomes public.
“Many younger Fellows and others have said (again in writing) that their jobs would be at risk signing this letter.
“Two Fellows (major Royal Society NZ medallists) said this: ‘Better not [sign] at this stage… I agree with all the statements — but you can’t imagine the pressure being put on us. I will vote for the motion though.’”
And: “In confidence I am disillusioned with RSNZ and I am too scared to sign anything for fear of what may happen to me at [the University of Auckland] if I do so.”
Martin noted: “This is a startling indictment of the situation in the research community in New Zealand at the moment, and of the way in which the RSNZ handled and exacerbated the controversy over the letter to the Listener.”
The letter’s signatories ask that the society write to Professors Cooper and Nola, and to the estate of Professor Corballis, and apologise for its handling of the entire process.
They also want the society to “review its current code of conduct to ensure that this cannot happen again, and in future the actions of the Academy/Council are far more circumspect and considered in regards to complaints concerning contentious matters”.
Lastly, that the entire society “be reviewed, examining structure and function and alignment with other international academies, and the agency given its Fellows upon whom its reputation rests”.
While it is at it, the Royal Society might also like to apologise to the other four professors who signed the Listener letter but are not Fellows given that their reputations were all sullied by the statement the society put on its website about their views being misguided and harmful.
However, you’d have to say that right now the society will have its hands full just dealing with the explosive no-confidence motion placed before it.
A bob both ways: commercial argument for free speech
Today’s column by Dita De Boni on the Free Speech Union and NZME unfortunately illustrates the name-calling and guilt-by-association which characterises so many contentious public conversations today. FSU has chosen to respond to the article and to its credit, NBR has agreed to publish it.
In my view, opinion columns such as De Boni’s today, which go beyond the factual and into speculative accusations, inhibit constructive debate. This doesn’t serve the commercial interests of anyone.
In response to our work calling on NZME to operate as an impartial publisher and maintain a commitment to free speech (apparently these are controversial requests) De Boni writes: ‘One would think that… the FSU might agree that NZME has the right to publish precisely what it wants, and take money from whom it wants, safe in the knowledge there would have to be a very good reason if not.’
She is absolutely correct we would and have admitted exactly this on a number of occasions. In a series of conversations with NZME CEO Michael Boggs and the NZME board, we have consistently recognised the right of NZME to carry whatever legal material it wishes and to decline whatever adverts it wants. A simple phone call or email would have allowed us at the Free Speech Union to clarify this.
However, in the long run, no one benefits from limiting debate and silencing opposition on critical social questions. No matter which side of the debate you sit on, whether it is your opinion that trans women are literally women or if you maintain a traditional feminist’s view of sex and gender, limiting the debate is unhelpful. (NB: the Free Speech Union doesn’t take a stand on this issue or any other - we simply insist that free speech is the most peaceful and productive way forward for all parties.)
Despite De Boni’s claims, the commercial interests of NZME, or any business, will indeed be undermined by avoiding all controversy or fearing the appearance of being out of vogue. Selective censorship hands a big stick to the noisiest and most aggressive mob of the day and suggests that by excluding some views, NZME implicitly endorses every perspective they do choose to platform.
In the long run, no one benefits from limiting debate and silencing opposition on critical social questions.
A principled dedication to simply allow a diversity of opinions would avoid such inferences and allow for vigorous debate to lead a path forward. You may call this having a bob both ways, but impartiality and balance is essentially just that. When the alternative is name-calling and cancel culture, surely this is by far the superior option.
However, it must be noted that De Boni is not representing the stance NZME actually took. NZME did not attempt to make the argument for avoiding controversy to protect commercial interests. Along with Chief Executive Michael Boggs, NZME General Counsel Allison Whitney claimed that to run gender critical material would be to “place our staff in an unsafe working environment.”
This suggestion ignores the fact that the work of the Fourth Estate, in general, is frequently controversial and uncomfortable. Protecting all NZME staff from opinions they don’t share will result in a very narrow scope of reporting. De Boni should have reported on the facts of the situation, which is that this is a dispute about “safety” and protecting adults from opinions that upset them, not about commercial interests.
De Boni also made the claim that the Free Speech Union “is an organisation with unknown funding sources and an alignment with international far-right and libertarian causes.” (Reference to ‘far-right’ has been subsequently removed). The Free Speech Union would have been happy to discuss with De Boni that we are fortunate enough to have the support of a large number of small donors and members here in New Zealand. Had she placed even one phone call to confirm or correct her assertions, she would have found her claims about our funding to be demonstrably incorrect.
Additionally, the many Left-wing, Liberal, and progressive Kiwis who are members of the Free Speech Union, including prominent individuals like Chris Trotter, Matt McCarten, Dane Giraud, and Daphna Whitmore, would likely be aghast to hear of the so-called “alignment with international far-right.. causes.” Thankfully, this accusation is easily put to bed.
Every dollar we have received to date has come from one of our 75,000 Kiwi supporters. Very few donations are over $1,000. We are the essence of a grassroots campaign funded by everyday New Zealanders who have just about had enough of the base pontificating, moralising, and name-calling that undermines respectful debate. The irony of it all though, is if someone tried to silence De Boni, we’d still defend her speech.
We extend the invitation to journalists at NBR, and beyond, to speak with our representatives at the Free Speech Union to find out more about who we are, what we do, and why we do it. We will, of course, defend their right to publish their honest opinions about us.
Jonathan Ayling is the chief executive of the Free Speech Union.
NZME refused to run advertisements placed by Speak up For Women because they were "potentially inflammatory, would compromise NZME's reputation and draw it into a debate in which it does not take a view".
Publisher and broadcaster NZME could be facing a fiery annual shareholders' meeting next month because the Free Speech Union (FSU) has managed to put advertising and editorial independence on the agenda.
There's no resolution to vote on, just an item for discussion, but one aspect that will likely exacerbate sensitivities is that the free speech issue that gave rise to the agenda item involves transgender politics.
Last year, when the Births, Deaths, Marriages and Relationships Act was going through the process of becoming law, a group called Speak Up for Women (SUFW) wanted to run an advertisement in publications owned by NZME which consisted of the Oxford University definition of the word woman.
For the record, that definition is: adult human female.
One of the changes to the Act was to make it easier for people to change the sex on their birth certificates without having to go through the Family Court or show evidence of medical treatment to change their sex.
NZME refused to run the ad, even though the Advertising Standards Authority had rejected complaints about the ad, which had already appeared on a billboard.
"In the context of advocacy advertising, the advertisement was socially responsible and did not reach the threshold to cause harm, or serious or widespread offence, did not cause fear or distress without justification, and was not misleading," ASA said.
It had received 34 complaints about the billboard which accused it of being transphobic hate speech which could cause undue harm or offence to the transgender community.
Essentially, the complainants said the ad was "a dog whistle" intended to inspire transphobia.
SUFW had faced a concerted campaign to deny its members the right to speak, which included local councils including Christchurch, Auckland and Palmerston North cancelling meetings arranged at their venues.
SUFW won a high court case allowing it to hold a meeting at the Palmerston North Library and Justice Gerard Nation said SUFW "cannot rationally be described as a hate group".
SUFW was concerned that the legislation could remove the right of women and girls to single-sex spaces, such as changing rooms, hostels and prisons.
It has also campaigned against the inclusion of transgender women in women's sport.
SUFW provided me with a copy of a letter NZME sent it.
"As you know, we had previously requested that your advertisements have the definition of 'woman' removed, as we considered that these were potentially inflammatory, would compromise NZME's reputation and draw it into a debate in which it does not take a view from a commercial perspective," NZME's letter said.
After saying it wouldn't run any further SUFW ads, spelling out a clause in its advertising terms and conditions giving it the right to make such decisions, it ended: " We do not intend to enter into correspondence regarding this decision."
FSU spokesman Jonathan Ayling said he estimated shareholders accounting for about 10% of NZME shareholders had signed onto a letter to NZME's board drafted by his organisation decrying NZME's decision not to run the ad.
Ayling said he had no difficulty getting the discussion item on the meeting's agenda and that NZME hadn't asked for proof that his organisation represented a sufficient number of shareholders to force the issue.
"It's quite demonstrably clear that we have more than 5%. They didn't suggest we needed to provide proof of that, but I think it's quite obvious to the board," Ayling said.
An NZME spokesperson disputed the 10% figure and said about 15% of NZME's shareholders live in New Zealand.
"We think it's more like 2% or even less. I don't know where they're getting that information from."
Half retail shareholders
Having the backing of 10% of NZME's register may not look like much, but it looks like the FSU is representing nearly half the retail shareholders.
Nominee companies, several from Australia, dominate NZME's register, accounting for 68.8% of its ownership while custodian companies of Forsyth Barr and Jarden own 8.3% and ACC owns another 4.24%, accounting for 77.3% in total.
The FSU letter said that shareholders have an interest in commercial considerations being at the forefront when decisions are made on advertising content.
"Yet we are of the opinion that NZME's commercial interests are best served when the company is seen to uphold a commitment to free speech and encourages robust debate on the pressing issue of the day," FSU said.
"It is simply not consistent with the role of the fourth estate to be pulling the teeth out of a controversy and avoiding offence (which is ultimately not possible)."
The letter went on to say that by refusing to run an ad, vetted by the ASA as legal and acceptable, NZME was "impeding free speech and acting as censor, rather than allowing a free and open marketplace of ideas without discrimination".
To which I can only say, amen. I'm appalled at NZME trying to suppress SUFW's views.
I'm also acutely aware that NZME owns BusinessDesk.
But my view of its letter to SUFW is that NZME's position is simply untenable and amounts to censorship. Censorship and my understanding of journalism will always be in diametric opposition.
I do have some sympathy with the transgender accusation that the definition of the word women could be used as a dog whistle.
Nobody listening to the confirmation hearings last week for Ketanji Brown Jackson who has been nominated to join the US Supreme Court could have mistaken the blatant dog whistle senator Marsha Blackburn blew.
Blackburn, a Republican, asked Jackson to define the word woman among a barrage of questions hitting just about all the current culture war issues, including transgender swimmer Lia Thomas being allowed to compete – and win – against other women at a college sports event.
Blackburn's bad faith was undeniable, but the answer is not to try to suppress the issues she raised.
Despite SUFW having won so many battles against being labelled transphobic, it's obvious the label has stuck – even one of my own colleagues told me he thought some of its members probably are transphobic.
If that's true, then he'd have to label me transphobic too, but nothing could be further from the truth.
If a person wishes to present themselves as the opposite sex to the one they were born with, I don't think that's any of my business, other than to accept them for who they are.
Bathroom issues are simply ridiculous; it would be both cruel and dangerous to force a transgender woman to use a male toilet.
Nor should transgender people be subjected to harassment and embarrassment in the name of security at airport checkpoints.
But there is an undeniable issue with women's sport. There's a reason we have men's sports and women's sports.
While women have advantages men don't share, bar the inevitable outlier, they simply aren’t as strong as men.
If we keep going down the path of allowing women who grew up as men to compete in women's sports, that will simply spell the end of women's sports.
I won't be erased
I was among the group of women who established the first feminist refuge in Auckland for battered women which gave rise to today's Women's Refuge network.
If a battered transgender woman had turned up on our doorstop, would we have turned her away? I don't think so, but there could well have been issues to deal with concerning other women we were sheltering at the time and their feelings of safety.
Avoiding dealing with such issues because they make us feel uncomfortable won't make them go away.
I bristle at being told I can't say things like "pregnant women" or "women with cervical cancer" anymore and that I should say pregnant "people" or "people" with cervical cancer so as to be inclusive of a vanishingly small minority of transgender men who might become pregnant or develop cervical cancer.
That reminds me of being told when I was much younger that the word "man" included women when it patently does not.
The fact is, women have been erased from history for about as long as people have existed in many different cultures all over the world.
I am an adult human female and I won't allow the transgender lobby erase me in the name of inclusion.
Notes by Robert Nola just after quitting (March 2022)
(1) The reasons have to do with lack of good support by the Royal Society NZ (RS) for important issues concerning science in a free society.
(2) The dispute discussed here arose over a letter to the 31 July 2021 issue of the NZ Listener, called In Defence of Science. I was one of seven signatories to the letter.
(3) Many good things are done by good researchers in RS; but not always because they are in it. Much of the good work might have been done before being made a fellow while the use of the acronym “FRSNZ” comes as a later bauble.
(4) I received supporting comments from many Fellows during the dispute with the RS. And we should note that the Investigatory Panel (IP) set up by RS to look into the complaints against professors Garth Cooper and Robert Nola ended up largely in support; it recommended not to continue the investigation. But the views of the IP set up by the RS are not necessarily the same as those of RS itself.
(5) The RS raised three lines of objection. The first was based on what we said in the letter. The main critical target in the letter was a claim in a Government NCEA working party report that science itself has been used to support Eurocentric views and colonisation (as opposed to people as agents of colonisation who might also use science). We strongly objected to this view. But I am not aware of any response to this from RS (though there should be one given the state of science and mathematics education in New Zealand). This did not get as much critical comment in the ensuing discussion as the final sentence of the letter which said: ‘indigenous knowledge … is not science’. This is a contestable claim which is worthy of debate, but none was given through the RS. Its response was to shut down dogmatically such discussion, as will be seen.
(6) The second line of objection was a note on the RS website set up by the President Dr Brent Clothier and the Chair of the Academy Executive Committee Prof Charlotte Macdonald (it remained up for about 5 months).
(7) It made false claims about what we allegedly said in the Listener letter about Mātauranga Māori. And it added that ‘it deeply regrets the harm such a misguided view can cause’ (presumably the view being that indigenous knowledge is not science!). No evidence was ever given concerning the harm allegedly caused. But this is also part of a view in which any harm caused by free speech, and even the extent of academic freedom, ought to lead to the curtailment of such freedoms. In fact, it has now become much more common for there to be requests for restrictions on academic freedom as defined in the relevant 2020 Act. I regard this as an unwelcome development.
(8) Even though the Code of Ethics of RS endorses freedom of speech (but not obviously academic freedom), the Code clearly admits restrictions which I would regard as highly contestable. I am strongly of the view, contrary to the Code of RS, that no Code of Ethics should impose restrictions on the freedoms that the laws of the land would permit. This is a problem with many codes of ethics; they need to be challenged in the courts.
(9) Clearly, we had no support in advocating views about science and knowledge which were not sanctioned by RS, especially in the case where indigenous “knowledge” systems are given a privileged protection immune from criticism. We are simply not permitted to say that indigenous knowledge is not a science (even though many scholars working in the field of Mātgauranga Māori say that it is not!). Even if one might disagree with these views, at least support of the doctrines of academic freedom and free speech would not lead one to reject these views out of hand. In sum, I regard the website note as obnoxious, as did many who commented to me about it.
(10) The third line of objection arose when the RS took up five complaints about the letter to be addressed by their Complaints Procedures and their Code of Professional Standards and Ethics in Science, Technology and Humanities. Of the five complaints only two were made public and were investigated by an Investigatory Panel (IP). The final conclusion of the IP was that the complaints be taken no further. Their grounds were clause 6.4(i) of the Complaint Procedures which provides circumstances in which a Panel can conclude no further action should be taken, viz., “the complaint is not amenable to resolution by a Complaint Determination Committee, including by reason of its demanding the open-ended evaluation of contentious expert opinion….”. This an important win in the complaints’ procedure. But it is something which might have been arrived at by a more appropriate vetting procedure of the original complaints in the first place.
(11) Clearly the investigation got bound up in the legalisms of a Code of Ethics rather than a discussion of a substantive issue about science, such as whether indigenous knowledge is, or is not, science. But one would have thought that this was something for which the RS might have at least provided a forum instead of evading it by retreating behind its Code. This is just one example of how codes might be employed to stifle free speech. It is a serious failure of the RS that it cannot have such a discussion of some claim rather than dogmatically adopting some stance which is then put beyond the pale of criticism.
(12) Ten and eight years ago I published two papers on the nature of science with a co-author, Professor Gürol Irzik, a professor of Philosophy at Sabanci University in Istanbul. We have now been invited to write about the same themes after ten years and are in the process of completing the paper. Has the dispute I have had within the Royal Society in dealing with the complaints brought against me produced anything I could use in the paper? No! The dispute has been entirely unproductive of any research in this area and has been a waste of time. My complainants have produced nothing which would be of value for this paper.
(13) In sum, why resign? The main issue underlying this dispute has to do with freedom of speech in the area of science. It has been long recognized that science best advances when it is open to the critical discussion of any of its doctrines, whether alleged to be indigenous or not. This is something found in the 19th-century discussion of freedom of speech by John Stuart Mill. If anything is given privileged protection from criticism, then this undermines the advance of science. At the moment the dogmatic stance seems to be in the ascendancy for the RS. And it is supported by the acceptance of a Code of Ethics which can be used all too easily to curtail free speech. The remark in the letter that indigenous knowledge is not science has clearly been taken by many within the RS to be an unacceptable claim to make, given the way in which it has been challenged by reprimands and investigations. But this stance should never have been accepted if the Royal Society NZ was a fully “open society”. A resignation can be a sharp reminder that it ought to provide a better forum for the discussion of contentious views instead of condemning them on websites or having panel investigations into them.
The Supreme Court heard the appeal from the Court of Appeal’s judgment last week on Monday 21 and Tuesday 22 February 2022.
Jack Hodder QC advanced our case at common law, arguing that before a public body can cancel a venue hire agreement in the face of the threat of a heckler’s veto, it needs to have cogent and informed evidence following proper investigation and consultation. That submission relied upon recent and leading authorities on free speech from Australia, Canada, the European Union, the United Kingdom and the United States.
A number of the judges were concerned about health and safety, and the need to protect the bodily integrity of those involved with an event. We argued that health and safety obligations have a ‘reasonableness’ element and must be read in light of free speech rights. Our lawyers accepted that bodily integrity is an important consideration but argued that it must be balanced against free speech and cannot justify limiting free speech unless the risk is very serious.
Professor Philip Joseph argued our case under the New Zealand Bill of Rights Act 1990. He told the Court they were required to make their own assessment of whether the limits placed on free speech were justified. He said the Court could not rely on the assessment by RFAL because it had not undertaken the required balancing exercise. He said that RFAL had opted for the “nuclear option” by cancelling the venue hire agreement.
The Council argued that the High Court was correct to find that RFAL was not subject to judicial review or the New Zealand Bill of Rights Act. There were few questions on this topic from the Court. But the Chief Justice was interested in how RFAL’s commercial decision-making might be affected. Mr Hodder explained that there would be no impact on the ability to, for example, charge fees because that would not involve controlling the content of speech.
The Chief Justice also asked what impact remote participation might have on free speech. The Council suggested that society may no longer need to tolerate a level of disorder in order to facilitate free speech. We strongly rejected that suggestion and emphasised the importance of in-person communication for dialogue and protest.
I’ve struggled with two ideas since Molesworth Street in Wellington was annexed by a group of tent constructing, road-blocking protestors against mandates (and a lot of other things).
The right to protest
The first is a strong view I have on the value of the right to protest. I think free expression, of all rights, is the one that most fundamentally allows the reflection of an individual in society and beyond that best reflects the diffusion of power we want to see in a liberal society where people are valued over the governing bodies (thinking here about the reversal of hierarchical governments that precipitated the moves towards individualised rights - the British empire, the French monarchy, most revolutionary movements and so on).
Protest, as a corollary of expression, is expression at its most political and most valuable.
Protest is also where freedom of expression comes directly into conflict with political power. That’s important on a principled level. Free expression is, at least in part, intended to be a check on Executive power, people can disagree and visibly do with their Government and this is a check on what the Government can do - you must be appealing to people. Further, rights apply to everyone and aren’t meant to be mutable by majority opinion. This is a core aspect, my right to express myself and disagree with the government should not be voted away, minorities matter and are valuable. If a minority of people can make life hard by spending their time objecting, it weighs into the decisions of those who wield power. A minority reserves the right to raise a counterpoint which, in the best case can shift opinion, but in the worst-case allows them a cathartic place to be heard and realise their autonomy. This protest is both a valuable aspect of our social fabric and something that needs to be protected.
Stemming from my prior, I tend to think I put quite a lot of weight on protest being valuable regardless of what the protest is about. I should point out here that I personally don’t think protest is something I would enjoy doing, I tend to disagree with a lot of people who stand outside Parliament generally and certainly disagree with the current lot. But they are captured in a view I have on protest - so where are the limits?
With these protests, the context also matters. I am someone who is triple vaxxed, understands the reasons for vaccine mandates, scans into venues, has a stock of masks, and dutifully follows government advice. But I also recognise the exceptional context where we are being required to act in this way. It is abnormal and an anathema to the culture of rights we have otherwise lived our lives with.
Regardless of whether the context is justifiable (it is), the fact we need to do it heightens the need to value rights of disagreement given there are limited alternate avenues for disagreement to be conveyed. People's rights to disagree are fundamental in a free and democratic society and we are removing many other avenues from the protestors.
The context of the protest also flows into the place it happens. Setting up a protest at the place where the rules you object to come makes sense. Indeed, I struggle to find an example where I think that protesting at Parliament should be limited. If the trade-off is someone exercising a right to my right to enjoy the Parliamentary grounds, I think the former is the higher-order right. This extends out to a view that Parliament is generally a place where protest should have more protections.
A little comment on being responsible
Before looking at limits - a small cul-de-sac. As with most rights, I think that the default position is to defend them and value the realisation of them. Personally, I think that this comes with a responsibility to exercise these rights well and with discipline. If you are going to speak, we need to protect your right to do so, but I think you should have a non-legal responsibility to act with decorum.
A failure to do this doesn’t extinguish your right, but we should be aware that rights only have value for as long as society values them. Rights are fragile - we need to care about them. So I think there is a good argument that the protesters are chipping away at the social fabric that permits a strong rights framework in society, which is bad, but I don’t believe that this by itself creates a clear limit (mainly because it is very subjective).
Limits to protest
My first conclusion is that a lot of behavior associated with protest is probably legitimate until it begins to infringe clearly on other first-order rights people have. My (very) basic recollection of early law study reminded me of the case of Brooker vs Police which I always quite liked at articulating the limitations of protest (in that case compared to disorderly behavior). It’s not a perfect parallel, but I like the articulation of Justice Tipping who steps through a test that I found comparable when assessing my views
Where, as here, the behaviour concerned involves a genuine exercise of the right to freedom of expression, the reasonable member of the public may well be expected to bear a somewhat higher level of anxiety or disturbance than would otherwise be the case...There must, however, come a point at which the manner or some other facet of the exercise of the freedom will create such a level of anxiety or disturbance that the behaviour involved becomes disorderly under s 4(1)(a) and, correspondingly, the limit thereby imposed on the freedom becomes justified.
In that case, the conduct in question was a man holding a sign and signing in a “relatively loud voice”. This was not deemed disorderly enough to override a right to protest, in part, due to the small scale of the protest.
In the case of the current Wellington protest, the scale is much more significant. Whole apartments are blocked, businesses have been unable to trade, and major streets have been blocked including the main bus interchange causing significant transport disruption in the CBD.
The harder edge of the protest has been a little more sinister. Examples of people being harassed (including children) about wearing masks, journalists being harassed for doing their job, nooses being hung around Parliament, people being more violent have also been reported even if this is a minority. This culminates with a hard edge of the protest which seems to be oscillating in and out of acceptable bounds of protest quite dramatically.
This already seems to be a sizeable difference in public disorder - that has manifestly impacted people's lives and seems to have, in a number of instances, impacted peoples ability to engage in basic parts of society and infringes on their first-order rights. People not being able to trade, people having abuse thrown at them for wearing a mask (I’d argue this is just a comparable expression trade-off), police having things thrown at them, and having a group of people monopolise public infrastructure seems to me to create a public disorder event that is a comparable infringement to a significant group of people.
But the context also needs to be addressed - protest is generally important and specifically so in heightened political contexts as we have here. This is why I find it difficult to agree that the source of unreasonableness is the monopolisation of Parliament or the setting up of tents. I understand that this is technically against the law, but I’m not sure it should be.
I’m much more certain that the spillover into the effective annexation of streets is clearly a problem. The fact of doing it and therefore showing disregard for rules that bind society is somewhat intimidating by itself, coupled with difficulty in distinguishing harder edges of protest from the main thrust of it, significant public disruption, and in the context of increasing public health risks, it seems like the spillover outside of Parliament is unreasonable and limits a greater weight of rights than it preserves by allowing it.
So where I’ve arrived at here is thinking the value I’ve gained from the protest is testing my own thinking on a rights framework I’ve given lip service to but haven’t really tested in my own lived experience. It’s made me think more deeply about the boundaries of legitimate protest and where I think the right to protest is enhanced or diminished. In this context, it’s not simple - there are elements that are clearly out of line (even if I object personally to the whole thing) and elements that I previously hadn’t considered but think should be both permitted and protected.
The so-called Safe Areas Bill will have its second reading in Parliament tomorrow. It’s a brazen attack on freedom of speech and the right to protest, made more offensive by the fact that some of the MPs who support it cut their political teeth exercising that same right.
The Bill, sponsored by Labour MP Louisa Wall and subject to a conscience vote, would allow the Minister of Health to designate 150-metre “safe areas” around abortion clinics from which protesters would be barred. It appears to be a unique protection accorded no other public buildings.
Officially named the Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill, the legislation threatens to curtail the right of anti-abortion activists to maintain even silent, passive vigils outside abortion clinics.
It has been promoted on the pretext that vulnerable patients attending abortion clinics risk being intimidated, obstructed and harassed. Yet the Christchurch-based anti-abortion group Right to Life submitted Official Information Requests to 20 district health boards inquiring whether patients or staff had suffered any such harassment or intimidation during the two years from 2019 to 2021, and none reported any.
So the need for “safe areas” has not been demonstrated and the Bill should be seen for what it is: an attempt to shut down legitimate protest against a practice that conservative Christians regard as profoundly wrong, but which is celebrated by the political Left as a defining triumph of feminism.
The Bill passed its first reading last March by a margin of 100 to 15 with two abstentions, but that’s not necessarily an indication of how MPs will vote the second time around. ACT’s 10 MPs all voted in favour of the Bill then, but party leader David Seymour said he had concerns about freedom of expression and wanted the Bill properly examined by a select committee.
Only three Labour MPs – Anahila Kanongata’a Suisuiki, Jamie Strange and Rino Tirikatene – voted against it. All Green MPs supported it and National was split: 19 in favour and 12 against. Christopher Luxon, who has since become the party leader, was one of those opposed.
Trevor Mallard and Chris Hipkins supported the Bill. Both were arrested for protest activity before they launched their political careers but later had their convictions overturned. They apparently see no inconsistency in denying others a right they once vigorously asserted for themselves.
The Bill will become law because of its overwhelming support from Labour and the Greens, but interest will centre on whether any MPs change their position now that the Bill has been through the select committee process. The vote will be a test of their commitment to the principles not just of free speech but of freedom of assembly and religion.
Seymour wasn’t the only person concerned about the threat to free speech. Even David Parker, who as Attorney-General was statutorily obliged to report to the House on whether the Bill complied with the Bill of Rights Act (BORA), conceded that a clause which would have criminalised the act of “communicating” with abortion patients in a manner likely to cause distress was “overly broad” and appeared inconsistent with BORA.
In its submission opposing the Bill the Free Speech Union agreed with that conclusion, but pointed out to the select committee that the legislation wasn’t necessary in the first place because protection against intimidation or threats is provided under existing law. The Summary Offences Act, for example, makes it an offence to direct insulting or threatening words at another person. There is also a legal prohibition against harassment – a word whose definition, the union said, would be expanded under Wall’s Bill.
The union went on to say: “It is not the speech of the majority that requires vigilant protection. It is the speech of the few that must be jealously guarded.” The union cautioned that the traditional legal test of what is “reasonable” was in danger of becoming one of what was “comfortable”.
In a spirited defence of the right to dissent, it said: “We are flummoxed by the suggestion that in a democracy, where government is created by people of different interests and beliefs, some ideas are deemed too different or disagreeable to be allowed. This suggestion is antithetical to democracy.”
The Bill that’s returning to the House tomorrow gives the impression of having been toned down, but it’s illusory. While the clause that failed the BORA test has gone, that doesn’t make the Bill any more palatable. Under the amended version, any person who “engages in protest about matters relating to the provision of abortion services” within a “safe areas” zone would be committing a criminal act.
It’s hard to imagine a more sweeping provision. The new section would give activist judges – who have proliferated in the 32 years since the passage of BORA, as the union noted in its submission – licence to convict people for doing nothing more menacing than silently praying on a public street anywhere within 150 metres of an abortion facility. This can only have a chilling effect on the right to protest.
Regardless of their views on abortion, those who believe in free speech and the associated right to protest should take careful note of how MPs vote. National and ACT MPs, in particular, will be watched to see whether their votes align with their parties’ supposed commitment to freedom.
Written by Karl du Fresne, reprinted by request from his personal blog.
■ Disclosure: The writer is opposed, in general terms, to abortion on demand but views that as irrelevant to the issue of free speech and freedom of assembly.
It's great to get to start with some good news.
4,000+ Submissions to Netsafe on the 'Online Safety Code'
We’re proud to report that more than 4,000 supporters submitted to Netsafe using our online submission tool. That’s important. Widespread participation in Netsafe’s consultation sends a strong message that Kiwis don’t want extra controls on their online speech.
These outrageous proposals would enable censorship on a whole new level in the online space, but thanks to the Free Speech Union and supporters like you,
Netsafe now knows Kiwis won’t tolerate the code. It has no option but to incorporate robust protections for free expression.
We've been speaking to Netsafe and it looks like they will be going back to the drawing board given the volume of submissions. We'll keep you updated...
Investigation into local government codes of conduct
We’ve been looking into local government codes of conduct for some time and have been approached by a number of councillors with stories of censorship and coercive use of codes. It’s become clear to us that the issues at play with codes of conduct warrant further scrutiny, so we’ve written to the Auditor-General to request an investigation into how they are operating.
Restrictions on the speech of elected members are prevent them from being voices of their constituents in the corridors of power. We say Councillors are not spin doctors for their council or Mayor – to the contrary, opposition voices are essential for a well-functioning democracy. It's not just the right of the elected member to speak, but the right of voters to hear from them.
It is often the mavericks and independents who find life being made difficult due to codes of conduct. Their contributions matter. But codes of conduct are creating an environment where the pressure is on councillors to say only what is approved by their chief executive or is otherwise uncontroversial.
Rotorua Councillor Reynold Macpherson has just been removed from two council committees after refusing to apologise for code of conduct breaches. The New Zealand Herald reports:
"Macpherson says he does not regret his actions nor lack of apology as, in his view, he "told the truth" in the social media posts the code of conduct complaints centred on.”
It's always concerning when code of conduct processes are used against elected members, but in this instance what concerns us is also the sanction imposed — how does preventing a councillor from carrying out their role and democratic duty to represent constituents not undermine their electoral mandate?
Government progresses conversion therapy bill and blocks amendments
The Government's top priority on its first week back in Wellington was to progress the Conversion Practices Prohibition Legislation Bill. Like many other pieces of legislation, the aim of this Bill is laudable. Few would defend barbaric and tortuous 'practices', seeking to change an individual's sexual identity or orientation. If the Bill simply did what it says it would, we would have no business commenting on it.
Yet, this piece of legislation strays beyond overt practices and threatens to criminalise conversations and dialogue on important issues. On virtually no other issue do we prohibit two adult Kiwis from talking. We are concerned that is what this Bill will do.
As the Free Speech Union, we applaud the Members of Parliament who raised concerns at the impact this Bill would have on speech and tried to amend the legislation to tight the scope and keep it true to the stated goal. Hon. Michael Woohouse and Simon O'Connor both articulated clearly the potential limitations on speech. But the Government voted down every proposed amendment, including one which simply called for the Bill to be inspected in 5 years to make sure it was doing what it was designed for.
This Bill will be passed by Parliament next week. If you want to hear more about the speech-related concerns we raised, this is a recording of our written submission, and you can watch our oral submission as I presented to the Justice Select Committee.
Convoy 2022 takes to Parliament
Whatever your thoughts are on the 'Convoy 2022’, we all agree that everyone has the right to peacefully make their voice heard.
Of course, individual agitators and lawbreakers among the protest group need to be dealt with appropriately by law enforcement, but the Speaker’s call to close the lawn and trespass the protestors was uncalled for, obviously wrong and appears politically motivated.
It was also disappointing and troubling that Barry Soper was reportedly reprimanded by the Speaker for speaking to a protestor at Parliament — that is to say — for doing his job. This unacceptable incursion on press freedom just threatens to sow the seeds of division further and alienate people.
Protest is a core right for all Kiwis. It doesn’t mean you have a right to an audience, or that your cause is right. But when the Speaker of the House threatens media for speaking with and reporting on these events, the disdain for free speech is palpable.
“Grant Robertson's illegal interference sets a disturbing precedent and puts the Police in an impossible position; Trevor Mallard's decision to pressure media into not reporting on the events risks confirming the protestor's greatest fears. As unpopular as they may be in and around Wellington, the current protesters are just as entitled to peacefully assemble and protest as any other New Zealanders.”
It doesn't look like this protest is going to anywhere soon. We'll keep fighting for the rights of peaceful Kiwis to gather to use their free speech. I sat down with Dane Giraud and Ani O'Brien to discuss this complex issue. You can listen to our podcast discussion here.
Also on the Free Speech Union podcast, our Council member Ani O’Brien sats down with Kate Cormack from Voice for Life New Zealand to flesh out activism, freedom of expression and why the Safe Zones Bill will have a chilling effect on free speech.
Voice For Life is New Zealand’s oldest and largest pro-life organisation. Kate and Ani get into the impact of the proposed 'Safe Areas' Bill (which is about to be voted on again in Parliament following the Select Committee report) on her group's activism, the fraught process of making submissions, and why the Pro-Life movement could be the canary in the coalmine for the suppression of more protest movements.
You can listen to the podcast here, or by searching for 'Free Speech Union' wherever good podcasts are found.
If you're looking for some good reading this week, check out these two pieces:
- Sending a mean tweet about Captain Tom shouldn’t be a crime (The Spectator)
Thank you for your support.