Submission to the Education and Workforce Select Committee on the Education and Training Amendment Bill (No 2)

From: Rights Aotearoa
Date of Submission: 11 June 2025
Submitted To: The Education and Workforce Select Committee, New Zealand Parliament
Regarding: The Education and Training Amendment Bill (No 2)

We formally request the opportunity to present our submission to the Committee.

Executive Summary

The Education and Training Amendment Bill (No 2) represents a profound betrayal of New Zealand's international human rights commitments, wrapped in the deceptive rhetoric of "academic freedom." This legislation systematically dismantles protections for Māori and LGBTQIA+ students while forcing universities into philosophically incoherent positions that violate our binding obligations under international law.

The Bill's elevation of "educational achievement" to paramount status above Te Tiriti obligations represents legislative sleight of hand that will predictably widen achievement gaps for Māori students. Meanwhile, the university’s free expression provisions constitute a deliberate assault on human rights protections, which will transform our universities from engines of critical inquiry into platforms for legitimised discrimination.

This submission urges the Select Committee to reject these provisions entirely. The evidence, the law, and fundamental human decency all demand rejection of this legislation's dangerous and discriminatory provisions.

1. Introduction

Purpose and Scope

This submission demonstrates that the Education and Training Amendment Bill (No 2) will catastrophically undermine vulnerable student populations, betray our Te Tiriti o Waitangi obligations, and introduce a fundamentally flawed paradigm for freedom of expression within tertiary institutions. These changes violate both New Zealand's domestic human rights legislation and its binding international obligations.

The Deception at the Bill's Core

Under the guise of improving educational outcomes and protecting academic freedom, this legislation creates a framework designed to dismantle universities' capacity to fulfil their most fundamental obligations to protect human dignity and combat systemic discrimination. The Bill forces institutions to adopt the pretence that remaining silent in the face of hate speech somehow advances knowledge and learning.

Critical Areas of Concern

This submission examines two principal areas where the Bill fundamentally fails our students and our international commitments:

First, the hierarchical restructuring of school board objectives creates an explicit prioritisation that will demonstrably harm Māori and LGBTQIA+ students. The elevation of "educational achievement" to paramount status while relegating Te Tiriti obligations and student safety to mere "supporting" roles represents a calculated retreat from equity commitments.

Second, the mandate for universities to adopt "freedom of expression" statements reflects a narrow civil liberties framework that directly conflicts with New Zealand's human rights obligations. This approach fails to address hate speech, violates the Bill of Rights Act 1990 and Human Rights Act 1993, and contravenes our international commitments under multiple treaties.

Call to Action

The Select Committee must recommend substantive amendments to address these critical flaws. In the absence of amendments that fully rectify these deficiencies, the Committee must recommend the rejection of these provisions to safeguard the integrity of our education system and uphold fundamental human rights.

2. Part I: The Systematic Dismantling of Equity Through School Board "Reform"

A. Exposing the Legislative Architecture of Discrimination

The Bill's proposed changes to school board objectives represent far more than administrative restructuring—they constitute a deliberate dismantling of hard-won protections for our most vulnerable students. Clause 8 replaces section 127 of the Education and Training Act 2020, establishing that "the paramount objective of a board in governing a school is to ensure that every student at the school is able to attain their highest possible standard in educational achievement."

This seemingly innocuous change masks a profound betrayal. All other objectives—including Te Tiriti o Waitangi obligations, ensuring physical and emotional safety, and fostering inclusivity—are explicitly relegated to "supporting" status. The government claims this will improve educational outcomes, but the evidence tells a different story entirely.

To expose the legislative sleight of hand at work, consider how the government has systematically dismantled protections for our most vulnerable students through these word changes.

Table 1: The Dismantling of Educational Equity - Current Law vs Proposed Amendments

The Ministry of Education's own Regulatory Impact Statement acknowledged that the 2020 framework deliberately "refocus[ed] boards on a wider range of objectives so that educational achievement was no longer the sole primary objective." The current Bill seeks to destroy this carefully constructed balance, returning to a failed model that prioritises narrow metrics over student wellbeing.

B. The Predictable Devastation for Māori Students

The Bill's cynical elevation of "educational achievement" above Te Tiriti obligations exposes a deliberate strategy to abandon Māori students. This is not hyperbole—it is the predictable consequence of the proposed legislative architecture.

Current data starkly illustrates existing inequities: only 62.2% of Māori school leavers achieve NCEA Level 2 compared to 83% for European/Pākehā students. Māori students have the lowest retention rates of any ethnic group. These disparities exist despite—or perhaps because of—educational approaches that prioritise standardised "achievement" over culturally responsive pedagogy.

The government's own consultation revealed the truth: 80.5% of submitters opposed elevating one objective to "paramount" status precisely because they understood it would "deprioritise the other objectives" and "undermine the requirement to give effect to Te Tiriti." The public saw through this deception even if the government pretends not to.

Kārena Ngata articulates what every credible educator knows: "Our obligations to Te Tiriti o Waitangi should be realised in every aspect of the school's systems, policies and practices." The Bill creates a false dichotomy between educational achievement and Te Tiriti obligations when, for Māori students, these are inseparable. Māori students succeed when their identity, language, and culture are affirmed—the very elements this Bill systematically deprioritises.

Most damning is the admission in the Regulatory Impact Statement of "inadequate time for comprehensive consultation with Māori, iwi and hapū." The government is restructuring Māori education without meaningful consultation with Māori—a violation of partnership principles so fundamental it renders the entire process illegitimate. 

C. Creating Hostile Environments for LGBTQIA+ Students

While the Bill maintains safety and inclusion as objectives, their explicit demotion to "supporting" status sends a clear message: LGBTQIA+ student safety is negotiable. When boards face resource constraints—as they always do—they now have legislative permission to prioritise test scores over creating safe environments for gender and sexually diverse students.

Research demonstrates LGBTQIA+ students are three times more likely to face weekly bullying, with transgender students experiencing rates 4.5 times higher. These students already navigate hostile environments. The Bill's hierarchy explicitly authorises boards to treat their safety as secondary to academic metrics.

The Ministry's own wellbeing frameworks emphasise that students cannot achieve academically when they feel unsafe or excluded. By creating this false hierarchy, the Bill undermines its own stated goal of improving achievement. For LGBTQIA+ students who miss school due to bullying or whose mental health suffers from discrimination, no amount of "paramount" focus on achievement will help—they need safety first.

D. Violating the Bill of Rights Act 1990

The proposed amendments create conditions that foreseeably violate section 19 of the New Zealand Bill of Rights Act 1990, which guarantees freedom from discrimination. When legislative architecture systematically advantages some students while disadvantaging others based on ethnicity or LGBTQIA+ status, it enables discrimination.

Under section 5 of BORA, any limitation on rights must be "demonstrably justified in a free and democratic society." The government cannot credibly argue that undermining Māori educational equity or LGBTQIA+ student safety is necessary for improving educational outcomes. International evidence consistently shows that inclusive, culturally responsive education improves outcomes for all students.

The Bill fails the section 5 test entirely. Less rights-infringing alternatives exist—maintaining balanced objectives as in current law. The consultation showed overwhelming opposition. The lack of Māori consultation violates partnership principles. This is discrimination hiding behind bureaucratic language.

3. Part II: University "Freedom of Expression" - A Trojan Horse for Legitimised Discrimination

A. The Machinery of Enforced Complicity

The Bill's university provisions represent something far more sinister than protecting academic discourse. New sections 281(1)(g) and 281A mandate that universities develop "freedom of expression statements" and report on complaints, creating an enforcement apparatus designed to prevent institutions from protecting vulnerable students from hate speech.

Minister Erica Stanford claims this ensures universities are "a place of genuine debate, where diverse opinions can be discussed and challenged." This framing reveals the fundamental deception—it presumes all "opinions" deserve equal platform regardless of harm they cause. When "diverse opinions" include racial supremacist ideology or anti-LGBTQIA+ hate speech, forcing universities to protect such expression makes them complicit in discrimination.

The requirement for annual reporting on freedom of expression complaints, notably absent any equivalent requirement to report on discrimination or hate speech incidents, exposes the Bill's true priorities. Universities must dedicate resources to protecting harmful speech while having no equivalent mandate to protect students from that harm.

B. The Civil Liberties Deception

The Bill imports a narrow "civil liberties" model fundamentally incompatible with New Zealand's human rights framework. This approach treats freedom of expression as an almost absolute right, wilfully ignoring our legal tradition's recognition that rights must be balanced and that expression causing serious harm can and must be limited.

New Zealand's approach, embodied in BORA and the Human Rights Act 1993, recognises that true freedom requires protection from discrimination and hate speech. Section 61 of the Human Rights Act explicitly prohibits expression that incites racial hostility. Section 131 creates criminal penalties for intentional incitement. Our international obligations under ICCPR Article 20(2) and CERD Article 4 mandate prohibition of hate speech.

The Bill's provisions create an impossible contradiction: universities must "protect and promote" expression that existing law prohibits. This is not protecting freedom—it is creating legal chaos while endangering vulnerable students.

Table 2: How "Freedom" Becomes Oppression - Civil Liberties vs Human Rights Approaches

C. Direct Conflict with Human Rights Law

The Bill places universities in an impossible position, mandating protection of expression that violates multiple laws:

New Zealand Bill of Rights Act 1990: Section 14 protects expression but explicitly subject to section 5 limitations. Section 19 guarantees freedom from discrimination. The Bill disregards this careful balance, creating conditions where discriminatory expression flourishes, in violation of Section 19 rights.

Human Rights Act 1993: Sections 61 and 131 prohibit racial disharmony and hate speech. Universities cannot simultaneously "protect and promote" expression that these sections explicitly outlaw. The Bill creates a legal paradox with no resolution.

International Obligations: ICCPR Article 20(2) mandates that "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." This is not optional—it is a binding obligation. CERD Article 4 requires prohibition of "all dissemination of ideas based on racial superiority or hatred."

The Bill's silence on these obligations amounts to directing universities to violate international law. When challenged, universities will face litigation regardless of their choice—sued for restricting hate speech under the Bill or sued for allowing it under existing law.

D. The Philosophical Bankruptcy of Forced Neutrality

The Bill's approach rests on the philosophically incoherent concept of "institutional neutrality"—the fantasy that universities can avoid taking positions on fundamental issues. This is not merely impractical; it is impossible and destructive.

Universities exist to advance knowledge through evidence-based inquiry. When climate science demonstrates anthropogenic climate change, universities cannot remain "neutral" between scientific consensus and denialism without betraying their fundamental purpose. When historical evidence documents colonisation's ongoing impacts, universities cannot treat indigenous rights as merely one "opinion" among many.

The American Association of University Professors recognises that externally imposed neutrality mandates threaten rather than protect academic freedom. True academic freedom requires institutions capable of defending evidence-based positions and protecting scholarly inquiry from political interference.

Moreover, neutrality is itself a position—typically one that protects existing power structures. When universities remain "neutral" about racist harassment of students, they effectively side with harassers. When they refuse to condemn discrimination, they enable it. Forced neutrality means forced complicity with injustice.

New Zealand law explicitly recognises universities as "critic and conscience of society" under section 267(4) of the Education and Training Act 2020. This role requires taking positions based on research and evidence. The Bill's neutrality mandate directly contradicts this statutory responsibility, creating yet another legal contradiction.

The Tertiary Education Union correctly identifies forcing universities to "keep quiet" as an "outright threat" to institutional academic freedom. Universities stripped of their voice cannot fulfil their democratic function of challenging orthodoxy and advancing knowledge.

E. International Evidence of Inevitable Harm

Comparative analysis reveals consistent patterns when similar legislation is imposed:

United States: Universities adopting strict neutrality policies report increased harassment of minority students, reduced academic success among marginalised groups, and faculty self-censorship on research addressing discrimination. The University of Washington spent $17,000 on security for far-right rallies while cancelling events celebrating marginalised communities—"neutrality" that clearly favours one side.

United Kingdom: The Higher Education (Freedom of Speech) Act 2023 attempts balance by maintaining anti-discrimination obligations alongside speech protections. Even this more nuanced approach has created legal uncertainty and increased administrative burden without evidence of improving campus discourse.

Australia: Proposed institutional neutrality legislation faced insurmountable conflicts with anti-discrimination law, leading legal experts to warn of "unworkable contradictions" that would paralyse university decision-making.

No jurisdiction has successfully implemented forced neutrality without harming vulnerable students and undermining academic freedom. The evidence is unanimous: these policies fail their stated goals while causing predictable harm.

4. The Democratic Stakes

Universities serve democracy not through enforced silence but by generating knowledge, challenging assumptions, and preparing engaged citizens. The Bill undermines this mission by preventing evidence-based positions on critical issues.

Democratic education requires more than mechanical presentation of "both sides"—it demands critical analysis and commitment to truth. When universities must treat peer-reviewed climate science and fossil fuel industry propaganda as equivalent, they cannot teach students to evaluate evidence. When they must remain neutral between human rights and discrimination, they cannot prepare citizens for democratic participation.

The Bill reflects profound misunderstanding of universities' democratic function. Rather than neutral platforms, universities are institutions committed to advancing knowledge and human flourishing. This commitment necessarily involves taking positions based on evidence—positions that may appear "political" to those who benefit from ignorance or injustice.

Democratic societies need institutions capable of providing independent analysis and critique. By forcing universities into silence, the Bill eliminates crucial sources of evidence-based analysis that democratic governance requires. A democracy that muzzles its universities is a democracy in decline.

5. Conclusions and Recommendations

The Choice Before Aotearoa

This Bill presents a stark choice between competing visions of education's role in society. One vision sees educational institutions as neutral platforms where "achievement" matters more than equity and where discrimination flourishes under the banner of "free expression." The other recognises education as a force for human dignity, social justice, and evidence-based progress.

The evidence overwhelmingly supports the second vision. New Zealand's international commitments, constitutional principles, and basic morality all demand rejection of this legislation's discriminatory provisions.

Specific Recommendations to the Select Committee

Regarding School Board Objectives:

1.     Reject Clause 8 entirely. Delete all provisions creating a "paramount objective" hierarchy. The existing balanced framework must be retained.

2.     Strengthen Te Tiriti integration. Any amendments must embed Te Tiriti obligations as foundational principles informing all objectives, not subordinate considerations.

3.     Mandate genuine consultation. Require meaningful engagement with Māori and LGBTQIA+ communities on any changes affecting their educational experiences.

4.     Preserve holistic wellbeing focus. Maintain equal priority for safety, inclusion, and culturally responsive education alongside academic achievement.

Regarding University Freedom of Expression:

1.     Delete sections 281(1)(g) and 281A entirely. These provisions are irredeemably flawed and must be removed.

2.     If any expression provisions remain, require human rights compliance. Any framework must explicitly:

o   Acknowledge expression limits under BORA section 5

o   Mandate compliance with Human Rights Act prohibitions on hate speech

o   Require protection from discrimination under international obligations

o   Preserve universities' critic and conscience role

3.     Reject institutional neutrality. Explicitly affirm universities' right and responsibility to take evidence-based positions on matters within their expertise.

4.     Clarify legal relationships. Any provisions must clearly articulate consistency with existing human rights law to avoid creating impossible contradictions.

Final Statement

The Education and Training Amendment Bill (No 2) represents a calculated assault on educational equity and human rights disguised as reform. Its provisions will cause lasting harm to Māori and LGBTQIA+ students while forcing universities to become platforms for discrimination.

This is not a time for minor amendments or cosmetic changes. The Bill's fundamental premises are so flawed, its architecture so discriminatory, and its consequences so harmful that only wholesale rejection of these provisions can protect New Zealand's educational integrity and human rights commitments.

The Select Committee faces a moral test. Will you stand with vulnerable students or with those who would sacrifice their safety and dignity for ideological purposes? Will you uphold New Zealand's international obligations or join the shameful ranks of nations abandoning human rights protections?

The evidence is clear. The law is unambiguous. The moral imperative is overwhelming. These provisions must be rejected entirely. New Zealand's students deserve nothing less.