Critical clauses

The only institutions in New Zealand mandated by law to "tell it like it is" are being told by government departments to "be seen but not heard", say academics who fear it is harming people, the environment and democracy. Government and university representatives, however, say it's not a problem. Bruce Munro investigates suppression clauses in government contracts with university researchers.

The police had blundered, banning Dr Jarrod Gilbert from gathering information because he had a history of researching gangs. It was a stupid mistake, quickly dissolved in the glare of national publicity. The University of Canterbury sociologist's name was moved from the "naughty" to the "nice" list; for Christmas, Dr Gilbert would get the police data he needed to research alcohol-related crime.

Dr Jarrod Gilbert, of the University of Canterbury, says his trouble with police contracts that used to contain clauses allowing police to ''improve'' research that had ''negative'' results or ''veto'' their publication highlights why universities' legisl
Dr Jarrod Gilbert, of the University of Canterbury, says his trouble with police contracts that used to contain clauses allowing police to ''improve'' research that had ''negative'' results or ''veto'' their publication highlights why universities' legislated role of critic and conscience of society is important. PHOTO: SUPPLIED

Tagging along, however, was another issue. It always got a mention; something about contract clauses that would let police "improve" research that had "negative results" or "veto" their publication. But it was, perhaps, harder to explain. So, mostly, it sat in the shadows. Then the police said not only was Dr Gilbert getting the green light, but the old contracts were being given an upgrade too. End of story.

That was three months ago. Now, it appears it was neither the beginning nor the end of the story.

Twenty-six years ago, then prime minister Geoffrey Palmer and his deputy, Helen Clark, spent several frantic days drafting legislation to placate some angry university vice-chancellors. Fellow minister Phil Goff had alarmed university heads with his Education Act of 1989. They were so concerned it might undermine academic freedom and the autonomy of universities that they took legal action. In response, Sir Geoffrey and Ms Clark, with the help of then Court of Appeal judge Sir Kenneth Keith, drafted an amendment to the Act.

"It was put in very deliberately ... to protect the fundamental purpose of universities," Sir Geoffrey said.

Among the bits added, sections 161 and 162 stand out. The first says "academic freedom and the autonomy" of universities "are to be preserved and enhanced". The second says universities are to be about advanced learning, developing intellectual independence, research and teaching at an international standard and a place to find knowledge and expertise. It concludes by giving universities a special function. They shall "accept a role as critic and conscience of society".

The role is extremely important, Sir Geoffrey says.

Former prime minister Sir Geoffrey Palmer, who wrote the universities' role as critic and conscience of society into law, says it was done deliberately to protect their fundamental purpose. PHOTO: ODT FILES
Former prime minister Sir Geoffrey Palmer, who wrote the universities' role as critic and conscience of society into law, says it was done deliberately to protect their fundamental purpose. PHOTO: ODT FILES

"Universities are about the transmission of knowledge. The establishment of new knowledge may involve uncomfortable and critical comments on all sorts of institutions and features of society, including governments," he says.

"Freedom of speech and the freedom to impart information is fundamental to the research and teaching functions of universities. All questions and all opinions must be open to examination."

It is a role that is little known, and even less talked about, outside of academic circles. But it is of vital significance to all of us. For a liberal, democratic society to function well, checks and balances are needed. So, power is divided between the Government, Parliament and the judiciary. Forces outside the power structure are also needed to keep an eye on what goes on inside. Since the late 18th century, that fourth estate has been the media. The 1990 amendment to the Education Act formalised another pillar. Universities, whose academics pursue knowledge and understanding, were to use that expertise to act as critic and conscience of society, applying what they were discovering, without fear or favour, for the good of all.

A decade after the Act was amended, Emeritus Prof Gareth Jones, who was then professor of anatomy and structural biology, at the University of Otago, was lead author of a paper on the importance of academic freedom and the role of critic and conscience of society.

In the paper, written for the academic audit unit of the university umbrella organisation, Universities New Zealand, he argues that universities have a responsibility to work for the good of society, even at the cost of passing judgement on aspects of that society.

"Implicit within this role of universities is the freedom of academic staff to critique ideas both within and beyond the universities themselves," the paper stated.

Emeritus Prof Gareth Jones, of the University of Otago, says academic freedom and the role of critic and conscience is essential in modern society. PHOTO: CHRISTINE O'CONNOR
Emeritus Prof Gareth Jones, of the University of Otago, says academic freedom and the role of critic and conscience is essential in modern society. PHOTO: CHRISTINE O'CONNOR

Today, Prof Jones is as convinced as ever that it is a valuable role.

"This is absolutely essential for the sort of societies in which we live," he says.

"Many of the issues with which we are dealing are highly complex and ... which no-one has dealt with before."

He cites examples such as terrorism group IS and his own area of expertise, reproductive technologies.

"They [university academics] are providing the information. And that is the basis for being able to analyse and assess where your society should be going."

In 2014, Prof Philippa Howden-Chapman, of the University of Otago, became the first woman researcher to receive the prestigious $500,000, Prime Minister's Science Prize. The work of Prof Howden-Chapman's multidisciplinary team, which has researched the impacts of housing quality on people's health and wellbeing, has informed housing policy of Labour-led and National-led coalition governments. Prof Howden-Chapman describes the critic and conscience role as the "jewel in the crown" of university legislation.

"Otherwise there's arcane knowledge which is known by people in the inner circle and no-one else," she says.

Prof Philippa Howden-Chapman, of the University of Otago, describes the critic and conscience mandate as the ''jewel in the crown'' of university legislation. PHOTO: SUPPLIED
Prof Philippa Howden-Chapman, of the University of Otago, describes the critic and conscience mandate as the ''jewel in the crown'' of university legislation. PHOTO: SUPPLIED

"[People] forget that taxpayers pay for the university to be in a privileged position to gather knowledge, to interpret it and then to think about what the implications are."

So, the legislated mandate of universities to act as conscience and critic of society is important. Point made. So far, so good.

Except that, within a few years of the legislation coming into force, some researchers began noticing a worrying development. Government departments and agencies, when contracting university researchers to do work for them, were including clauses in the contracts that seemed designed in large part to suppress awkward and inconvenient findings. Over time, the academics say, the clauses have become more controlling, potentially bringing those who sign the contracts into direct conflict with their critic and conscience mandate.

The list of those voicing their concern is as diverse as it is illustrious.

Prof Kypros Kypri is an injury-prevention researcher who has become so concerned about suppression clauses in government contracts with academics that he has begun researching them. Prof Kypri works in the School of Medicine and Public Health, University of Newcastle, Australia. Until 2004, he worked in the University of Otago's renowned Injury Prevention Research Unit, and still has research links at Otago.

"I've watched the contracts change from the late 1990s to the present day," Prof Kypri says.

Prof Kypros Kypri, of the School of Medicine and Public Health, University of Newcastle, Australia, is investigating suppression clauses in research contracts between government departments and academics. PHOTO: SUPPLIED
Prof Kypros Kypri, of the School of Medicine and Public Health, University of Newcastle, Australia, is investigating suppression clauses in research contracts between government departments and academics. PHOTO: SUPPLIED

"My impression is that some government agencies in particular have become more and more controlling of research that is performed for public-good purposes."

He has collected draft contracts from both sides of the Tasman. In New Zealand that has meant systematically going through contracts on the Government Electronic Tenders Service website. He has divided the suppression clauses he has found into three categories: intellectual property (IP), publication, and termination for convenience (TfC).

The first category gives ownership of intellectual property generated by the research to the government department or agency. The second allows the funder to modify, delay or prohibit publication of research results.

"And third is the termination for convenience clause which ... I'm staggered by. But they're very common," Prof Kypri says.

"They allow the purchaser to terminate the contract without notice or explanation."

New Zealand examples came from entities including the Ministry of Health, ACC, Ministry of Education, Health Promotion Agency, New Zealand Transport Agency and Department of Corrections. Marsden Fund and Health Research Council grants do not have the clauses.

"Most draft contracts used to purchase social, health and education research contain one or more suppression clauses in them; clauses that permit the purchaser to modify, substantially delay or prohibit the reporting of the findings," he says.

Emeritus Prof John Langley was Prof Kypri's supervisor during his PhD studies at Otago. He can understand why an industry-funded contract might have restrictive clauses to protect competitive advantage. But he can see few reasons for such clauses in publicly funded research.

Emeritus Prof John Langley, of the University of Otago, says there can be few legitimate reasons for suppression clauses in publicly funded research. PHOTO: SUPPLIED
Emeritus Prof John Langley, of the University of Otago, says there can be few legitimate reasons for suppression clauses in publicly funded research. PHOTO: SUPPLIED

"It's money provided by you and me, by taxpayers, and there should be total transparency about everything that goes on."

Prof Langley believes one reason for the clauses is research money is so hard to come by that universities and academics are willing to take what they can get. Another, he suspects, is government aversion to bad publicity driving it to try to control what information emerges and when.

"Suppression clauses are completely counter to universities being critic and conscience of society," Prof Langley concludes.

"To interfere with research results and with the free and open exchange of ideas, is interfering with universities being able to perform that role."

Prof Boyd Swinburn's experience of research suppression occurred in Australia. But it leaves him deeply concerned that New Zealand could be going down the same track.

He is professor of population nutrition and global health at the University of Auckland, and director of the World Health Organisation (WHO) Collaborating Centre for Obesity Prevention, at Deakin University, in Melbourne.

Prof Boyd Swinburn, of the University of Auckland, fought with the Victorian government in Australia to be able to publish research that did not support its existing child obesity strategies. Photo: Supplied
Prof Boyd Swinburn, of the University of Auckland, fought with the Victorian government in Australia to be able to publish research that did not support its existing child obesity strategies. Photo: Supplied

Several years ago, he was involved in research for the Victoria state government, analysing the most effective interventions to reduce childhood obesity.

"As it turned out, the most cost-effective and indeed cost-saving intervention happened to be the one the government didn't want to do because of industry opposition. And the ones that were least cost-effective were the ones they were currently funding."

He was prevented from publishing the research for several years.

"While I think it may be a bit difficult and unpleasant for the seat of power to have voices criticising what government is doing, it is absolutely central for democracy," Prof Swinburn says.

"The more we see this sort of managerial closing down of voices ... the worse off we are as a society."

Prof Jennie Connor holds the chair in preventive and social medicine at the University of Otago. She says suppression clauses have been "of growing concern the whole time I have been involved in research".

"This is a very significant issue. I consider it is corrupting the processes that develop new knowledge and ideas," Prof Connor says.

"We weren't able to get a contract signed with the ministry until the end of February 2009, because they would not agree to let us publish freely."In May 2008, she was awarded a research grant by a government ministry group. The money was for a one-year project starting in July. But the contract included a clause requiring ministry approval before anything was published.

Jennie Connor
Jennie Connor

Ironically, by the time the research was published the funding group had been disbanded and monitoring of the contract had been abandoned.

Alcohol policy is a prime example of how ignoring research is harming people, she says.

It is largely determined by government ideology and lobbying by multinational corporations, while the plentiful evidence of the negative health, social and economic impacts is "mostly ignored".

"Publication of unbiased information would make this dominance of ideology and commerce more difficult, and so suppression and control of researchers becomes an extension of party politics."

Prof Connor says funding pressures and a more commercial orientation means "universities are no longer standing on principle when it comes to independence".

"Of particular concern is the unwillingness of New Zealand and Australian universities to draw a line in the sand and have a policy not to accept contracts with suppression clauses."

Prof Richard Blaikie, who is deputy vice-chancellor of research and commercialisation, University of Otago, and on the Universities New Zealand research committee, says some contracts make academics employees rather than researchers.

"Of particular concern is the unwillingness of New Zealand and Australian universities to draw a line in the sand and have a policy not to accept contracts with suppression clauses."

The way the academics tell it, it sounds alarming, deeply troubling. It is just not reality, reply government and university bosses.

Steven Joyce is minister of, well, lots of things. But in this context, he is minister for tertiary education, skills and employment.

In an email response to questions, Mr Joyce says he would be concerned if research was being suppressed, making it difficult for universities and academics to exercise academic freedom and perform the role of critic and conscience of society.

"If it applied to core research and development or teaching and learning, but it doesn't," he says emphatically. Mr Joyce has great expectations of universities and the public sector.

He expects universities would not enter contracts that compromise their core role. The Government has set standards of good practice for procurement. He expects public sector agencies would with comply with them.

As deputy vice-chancellor, Prof Richard Blaikie oversees all research and commercialisation activities at the University of Otago. He is also on the Universities New Zealand research committee. Seated with him in Prof Blaikie's office is the university's research and enterprise director, Dr Gavin Clark. Dr Clark is also a member of the Universities Research Offices of New Zealand.

Prof Richard Blaikie, who is deputy vice-chancellor of research and commercialisation, University of Otago, and on the Universities New Zealand research committee, says some contracts make academics employees rather than researchers.
Prof Richard Blaikie, who is deputy vice-chancellor of research and commercialisation, University of Otago, and on the Universities New Zealand research committee, says some contracts make academics employees rather than researchers.

They have agreed to answer some questions about suppression clauses.

"We're actually set up quite the opposite to how the questions are framed," Dr Clark says.

"The core of our contracting process is to ensure dissemination of knowledge."

The contracts they are involved with preserve academics' right to publish and make it clear that the research results may not be what the funder wants, they say.

If the funder gets the IP, then the standard contract still stipulates that the university can use the knowledge for research and education.

Dr Clark is sure that when it comes to research contracts, all of New Zealand's eight universities operate with similar principles.

"If we were presented with something defined as a suppression clause as you have, we would almost certainly reject it and renegotiate it. That occasionally happens," he says.

That is not to say that there are not older contracts with some clauses which they would want to renegotiate when they came up for renewal, Prof Blaikie says.

There are also situations, he says, where the contract puts the academic in a different relationship with the funder.

"At times people will contract as if they are employees in that organisation," Prof Blaikie says.

"You have to ask what is the relationship? Is it a research relationship? Is it a consultation where the sponsor or government department is wanting to purchase-in as a consultant that expertise to work with their data and do something internal with it? Then it's not a research contract. It's a contract for services."

It helps explain a comment made by Mr Joyce.

"When a university enters into a contractual arrangement with a government department or agency, this is a type of service delivery that can be distinct from its role of conscience and critic of society," Mr Joyce said.

If government and university bosses have boxed off a chunk of contracts as not relevant to the critic and conscience discussion, it might explain why both sides have such different views. Or it could be a red herring.

What is needed is some more facts. Are these clauses, which appear in draft government contracts, making it through to contracts signed by researchers and their universities?Prof Kypri is trying to find out. He has been investigating this in Australia and says in that country they certainly are.

In New Zealand, the work has just begun. In January, a researcher working with Prof Kypri lodged Official Information Act requests with research purchasers asking for copies of signed contracts. They have not received any yet.

Prof Kypri also hopes to contact academics in both countries to research their experiences of interference in research by funders. Response to talks and articles on the topic - his most recent was in Auckland, in October - suggests he will get plenty of feedback.

"It is well beyond health. A lot of it was environmental research. Environmental impact statements for example which get suppressed because they have findings in them that suggest there will be harm."

Dr Gilbert has received the police data for his crime research. He says he takes the police at their word when they say the contracts will be changed.

"But obviously they need to ensure that not only the words change, but that attitude changes," he says.

He agrees his wrangle with police is pertinent to universities' role as critic and conscience of society.

"Academics having access to the best data means we will get the best research, the best findings and the best recommendations. This is in everybody's interest. It should be completely uncontroversial," Dr Gilbert says.

"These freedoms are the basis of Western democratic ideals. It's not too fine a point to say we have fought wars for these things.

"They aren't just wonderful philosophical ideas. They have practical implications. Academic research advances the interests of New Zealand. It's absolutely important that we have the freedom to do the work we do.

"If that at times is uncomfortable ... for official agencies or the Government, then so be it. That's exactly why those freedoms are there."

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