Don’t judge me because I’m a judge.

A forthcoming paper in the refereed journal the “New Zealand Business Law Quarterly” has attracted the ire of the New Zealand Attorney General Chris Finlayson and the Law Society. They reportedly believe that the author of the paper should not be allowed to issue his expert academic opinion.

The author of the paper is Sir Edmund Thomas of the University of Auckland Law Faculty. Sir Edmund is a former Supreme Court and Court of Appeals judge but is now an academic.

Speaking for the Law Society, Chris Moore said that Sir Edmund’s opinion violated “what we regard as pretty much a basic protocol which is that you don’t criticise the judges, because the judges are in the invidious position of not being able to defend themselves.” Finlayson said: “He can’t escape criticism by saying, ‘I’m an academic’ now’.”

Two key issues for academic freedom are raised by the response of Moore and Finlayson. These are that:

1. statutory obligations of staff and students as described by the Education Act may be suspended because of past occupation or simply at the discretion of a professional society or government appointee; and
2. some professions, institutions or individuals are exempt from review by institutions that serve as critic and conscience of society and those that provide that service responsibly through the exercise of academic freedom.

I wish to set aside why Sir Edmund spoke out on the matter and whether or not his actions were selfless, because these are details others would be better placed to comment upon. Instead, I want to focus on the issue of whether academic freedom has the boundaries suggested by the Law Society and the Attorney General, and whether statutory obligations are secondary to less formal professional practices.

Their positions appear to me to be at odds with the author’s rights and responsibilities under the Education Act 1989, in particular:

Furthermore, New Zealand has obligations set by the United Nations Educational, Scientific and Cultural Organisation and the UNESCO policy on academic freedom is clear:

The Act does not exclude current students and staff from exercising academic freedom because they used to do something else. That is, because Sir Edmund formerly worked as a judge does not prevent his use of academic freedom while he is an academic. The work of being a student or academic is what qualifies them to bring forward opinions that deliver on a tertiary institution’s obligations as critic and conscience of society. Importantly, the Act does not in my reading identify learned societies or government appointees as having an authority above the law on the exercise of academic freedom.

Moreover, the Act excludes no institutions or disciplines from examination under the provisions of academic freedom. To argue that some prominent roles and institutions in society, such as judges and the courts, are exempt is to undermine the law. The more important the institution, the more, not less, it should be subject to review by scholars.

Moore’s point that “the judges are in the invidious position of not being able to defend themselves” nevertheless has resonance in the UNESCO policy. In exercising his academic freedom, a scholar “should recognize that the exercise of rights carries with it special duties and responsibilities, including … to ensure the fair discussion of contrary views.” However, clearly the Law Society and the Attorney General are capable of presenting contrary views without the judges themselves needing to; and they have done so. If proper use of academic freedom becomes problematic because of conventions among some professions, such as the restriction on sitting judges from engaging in debate on their decisions, then it is the convention of the profession and not the practice of academic freedom that needs to be examined. Otherwise, all professions and institutions could synthesise a convention that cloaks them from scrutiny by the critic and conscience of society.

Is Sir Edmund right about the judges’ findings? That is a topic of debate among experts and that discussion should be carried out with vigour and integrity. However, for any parties engaged in the dispute, including the Law Society and the Attorney General, to direct their criticisms to the academic and suggest that he should be silent, is in my view neither a symptom of a healthy democracy and secure society nor compliant with the law.