(Photo: Julia Taubitz on Unsplash.)
ACT MP Todd Stephenson misuses the concept of free speech in his stance on the Nursing Code of Conduct, writes Professor Dominic O’Sullivan.
ACT MP Todd Stephenson’s campaign against “Treaty and equity obligations” in nursing and other professional codes of conduct is not really a defence of free speech.
In reality, he is effectively arguing that Māori people shouldn’t get the same quality of care as everyone else.
Let me explain.
The Nursing Council’s draft code is out for public consultation. It proposes banning nurses from using “offensive”, “inflammatory”, or “ill-informed” language in social media posts. The intention of the ban is to ensure that nurses don’t use disinformation to harm others, as in the anti-vaccination movement, for example.
Todd Stephenson is right to say that the Nursing Council needs to be cautious about doing this. The language in the draft is vague. The thresholds for what counts as breaching the code would need to be clarified to protect lawful free speech. This is important and the Council has work to do.
But Stephenson goes on to say: “The problem is made worse by the draft code’s expanded Treaty and equity obligations.”
The code’s references to Te Tiriti are, in fact, minimal. They require nurses to treat Māori patients equitably, meaning those patients get the same opportunity for positive outcomes as anyone else.
There is extensive evidence that not all nurses, and not all health professionals, give everyone the same quality of care. Rachael Walker and her colleagues provide just one example. They showed that racism contributed to inequitable outcomes for Māori people requiring kidney transplants. They write:
“Reported experiences of racism in Aotearoa New Zealand are consistently associated with negative measures of health, self-rated health, life satisfaction, and reduced access to high-quality healthcare with subsequent poor health outcomes.”
Unrestricted free speech would mean nurses are free to say that they don’t want to treat Māori patients equitably. They might say this explicitly. They might use offensive and inflammatory language to make their point. Either way, they’re saying they want to do harm to some patients.
For these nurses, Te Tiriti stands in their way, and that’s why it matters.
Te Tiriti supports the Nursing Council’s statutory responsibility for patient safety, which is essential for people to have trust and confidence in the health system.
The idea that it doesn’t matter how nurses speak to people, or what choices they make about whose care to prioritise and whose values to respect and offend, is to remove humanity from healthcare. It also explains how and why racism contributes to ill-health.
Professor Yin Paradies and his colleagues reviewed 293 studies, mostly from the US and other high-income countries, which found that racism is consistently associated with poorer health.
So this is not just a New Zealand problem. We should, of course, be free to argue that Te Tiriti doesn’t provide the best response to this problem. But it is quite another thing to argue that we don’t need a response at all because, in Stephenson’s words, it is equity objectives that are the problem.
To connect Te Tiriti to the right to quality care is far from “embedding race-based or ideology-driven” practices into healthcare. Racism, by contrast, is ideologically driven.
A nurse who pretends that colonialism isn’t real, and that racism doesn’t help explain relative Māori ill-health, can’t approach a Māori patient with the care and respect that positive outcomes require.
Te Tiriti doesn’t use the word race, and Māori people don’t routinely refer to themselves as a race, either. That is other people’s language. Whakapapa, culture, and colonial context are what matter, and they are vastly more complex.
Despite Stephenson’s framing, Te Tiriti hardly features in the draft code. It says that nurses should “Recognise Māori as tangata whenua and uphold their rights under Te Tiriti o Waitangi”. One could rightly say that this is vague, and expect problems of interpretation to follow. However, the code’s next sentence is explicit. It says nurses should “Take steps to reduce health inequities and address the ongoing impacts of colonisation”, one of which is racism and its impact on people’s opportunities for good health.
The Nursing Council is not a private club. It regulates a profession to assure the public that the people it registers can practice competently. To say that it should be selective when it carries out this task, applying it to some people but not others, is exactly the kind of outcome that Te Tiriti protects against.
In this respect, the Pharmacy Council’s Competence Standards are more explicit, requiring pharmacists to contribute to reducing health inequities and to understand how Te Tiriti might help achieve this.
In my forthcoming book, Te Tiriti, Equality and the Future of New Zealand Democracy, I argue that Te Tiriti helps because it’s concerned with how authority and responsibility are shared to support fundamental human equality.
Te Tiriti contributes to better health outcomes because it says that government (kāwanatanga) exists to serve the interests of all people, not just non-Māori. And the Nursing Council, while independent, is part of the machinery of government.
Kāwanatanga should work equally well for everyone because it belongs equally to everyone. This is how Article 3 constrains the powers of government when it says that Māori people may exercise citizenship with equal tikanga. Rangatiratanga sits alongside by guaranteeing Māori rights over their own affairs, including the protection and development of culture as part of good health.
Te Tiriti is important to healthcare because it respects Māori spaces of ownership and influence — including spaces of influence over how health systems work, and the objectives they should follow.
Importantly, Te Tiriti protects culture because without culture, we are devoid of humanity.
Culture matters, not as a source of privilege that takes away other people’s rights to good health outcomes, but as a matter of fundamental human equality. Te Tiriti helps frame what that equality means in practice.
For example, it gives Māori the same opportunity as other citizens to influence how health systems work — whether those are independent Māori health systems or state systems. It gives Māori the same opportunity as other citizens to influence the regulation of the nursing profession and to define what is required to fulfil the Nursing Council’s statutory obligation to “protect the health and safety of the public”, set “standards of clinical and professional competence”, assess “the fitness of practitioners to practise”, define “scopes of practice”, and manage “disciplinary processes”. Māori should also have the same opportunity as other citizens to decide whether these are the most suitable regulatory criteria.
Contributing to these tasks requires accepting that kāwanatanga doesn’t belong to Pākehā alone. Kāwanatanga is the shared authority of citizens. It belongs to everyone because it is everyone, and free speech is an equal right. Māori people are entitled to think and contribute to public decisions in ways that make cultural sense, for purposes that make cultural sense, and to respond to the colonial context.
When Australia considered free speech laws in 2014, the Attorney-General told parliament that people have “a right to be bigots“. But is this a threshold we can accept if we really believe nurses should care for everyone equally well? It’s hard to see how someone who wants to offend and inflame social tensions can have the skill and big heart that Stephenson said are the main qualities a nurse needs.
Yes, free speech means people are entitled to critique interpretations of Te Tiriti. People should be free to object to the state’s chosen path. Māori and other nurses have always done this to argue for better quality care.
But to say that it’s reasonable for nurses to argue against equitable care is to argue against the profession itself.
Dominic O’Sullivan (Te Rarawa and Ngāti Kahu) is a professor of political science at Charles Sturt University, adjunct professor at the Auckland University of Technology and Victoria University of Wellington. Dominic is the author of nine books, includingTe Tiriti, Equality and the Future of New Zealand Democracy, which Auckland University Press will publish in June 2026.
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