Jane Kelsey: Protection is needed for truth to out

Opinion: Emeritus Professor Jane Kelsey says academics face worsening challenges to be public intellectuals and feel vulnerable when speaking out.

Emeritus Professor Jane Kelsey sitting at a desk
Emeritus Professor Jane Kelsey

After four decades of service as a top critical legal intellectual at the University of Auckand, Emeritus Professor Jane Kelsey delivered her valedictory lecture on 28 July. Here are some of her key messages.

I want to focus on the roles and responsibilities of legal academics as active members of our societies.

We have a hugely privileged job. Despite the creeping privatisation of tertiary education, we are still predominantly funded by taxpayers to research, teach and advance the wider public good within universities that historically have a quasi-constitutional function, equivalent to the fourth estate. Those responsibilities include to be repositories of knowledge, hold power to account as critics and conscience of society, and to act as catalysts for informed change.

I shudder at the daunting array of challenges that face today’s scholars and public intellectuals in Aotearoa: from the existential climate crisis, structural inequality and poverty, and denial of women’s rights to control their own bodies, to establishing an authentic system of constitutional authority and law sourced in te Tiriti o Waitangi.

At the same time, we face challenges to simply be public intellectuals. A recent inquiry into job security in Australia found casuals and staff on fixed-term contracts made up two-thirds of the university sector in 2021 and almost half (47 percent) of the University of Melbourne’s 11,000 staff were casuals.

In July a report, The Elephant in the Room: Precarious Work in New Zealand’s Universities, showed we are heading the same way. Precarious employment creates a climate of fear, bullying, self-censorship and de-unionisation, where universities’ HR departments wield more power than participatory forums for academic governance.

In July, UK universities, including most of the 24 research universities that make up the Russell Group, rejected government pressure to withdraw from the race equality charter run by a charity that aims to identify barriers to success for Black, Asian and minority ethnic students.

A so-called “higher education freedom of speech” bill debated in the House of Lords seeks to impose a new free speech regulator with fresh powers to fine universities and student unions for failing to comply with free speech provisions – code that redefines support for occupied Palestine as antisemitism, and justifies lazy attacks on “wokeness” and “cancel culture”.

Not all academics embrace the role of the public intellectual, let alone the critical academic. But universities have an obligation to ensure that academics know this is an integral and valued part of our work and to create conditions that empower those who choose to fulfil that role. And they must ensure our well-being as we do so.

It is also our responsibility as academics to defend this space by speaking truth to power within the University. Statutory references to academic freedom and the critic and conscience role of universities were hard-won protections in the later 1980s, thanks to Auckland academics Ruth Butterworth, Margaret Wilson and Nic Tarling, when Education Minister Phil Goff sought to take the universities to market.

Restoring and upholding the public good function of universities requires leadership at all levels. Academics need to rediscover a collective spine.

Emeritus Professor Jane Kelsey, Auckland Law School Waipapa Taumata Rau

I’ve been a member of the University Senate since 1984, for most of my career, often in lonely battles with vice-chancellors in the chair; as a sub-professorial member of Council alongside academic icons including Dr Ruth Butterworth, professors Philippa Black and Jack Woodward; as national President of the then Association of University Staff in the late 1990s, where we temporarily held back the worst excesses of tertiary reforms, and established an Academic Freedom Award presented by Noam Chomsky.

Protecting that space has become increasingly difficult over three decades of managerialism, the downgrading of vice-chancellors from academic leaders to chief executives and employers, the privatisation of university financing, and the deunionisation of campuses. Collective governance on academic matters through faculty, Senate and Council is still embedded in the Education Act, but has been systematically marginalised by management hierarchies.

The union, once considered an integral part of university governance, is treated by management as the enemy in an institution that increasingly relies on precarious employment and where academic decisions rest with HR.

Academics feel vulnerable when speaking truth to internal power under these conditions. Bullying has become endemic in the hierarchy of universities.

Restoring and upholding the public good function of universities requires leadership at all levels. Academics need to rediscover a collective spine.

Protection rests in numbers, including through the union, and we need to perform our public responsibilities despite any gagging and loyalty clauses inserted in our contracts or imposed unilaterally as university policies.

We require support for academic activism from the top
down to create an environment free from fear, that fosters and celebrates the diversity of our public good roles.

Emeritus Professor Jane Kelsey Faculty of Law, University of Auckland

As I leave after 42 years, I hope vice-chancellors, deans and others will treasure the taonga that is this university, the knowledge it holds and will create, and the academic and professional staff who hold the key to its future.

Precisely because talking truth to power is a risky and unequal encounter, those who undertake it need to be protected. Too often, critical scholars who survive and succeed in academia do so in spite, rather than because, of our intellectual home.

That needs to change.

We require support for academic activism from the top down to create an environment that is free from fear and that fosters and celebrates the full diversity of our public good roles. I look forward to one day attending a vice-chancellor’s public lecture entitled ‘University leaders as licensed subversives in Aotearoa New Zealand’.

This opinion piece first ran in the August 2022 edition of UniNews.