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Higher Education Support Amendment (Freedom of Speech) Bill 2020



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BILLS DIGEST NO. 28, 2020-21 20 NOVEMBER 2020

Higher Education Support Amendment (Freedom of Speech) Bill 2020 Dr Hazel Ferguson Social Policy Section

Contents

Purpose of the Bill ........................................................... 2

Background ..................................................................... 2

Academic freedom ...................................................... 2

State and territory legislation ................................... 3

Commonwealth legislation ....................................... 3

University policies and enterprise agreements ........ 4 Concerns about academic freedom and free speech on campus ....................................................... 5

Institutional and academic autonomy ...................... 6 Academic bias, student academic freedom, campus culture, and student politics ........................ 8

Academic bias and student academic freedom ...... 8 Campus culture and student politics ....................... 9

Independent review into freedom of speech in higher education ....................................................... 11

Committee consideration .............................................. 13

Senate Standing Committee for Selection of Bills .... 13 Senate Standing Committee for the Scrutiny of Bills ............................................................................ 13

Policy position of non-government parties/independents.................................................... 13

Position of major interest groups................................... 13

Financial implications .................................................... 14

Statement of Compatibility with Human Rights.............. 14

Parliamentary Joint Committee on Human Rights ... 14 Key issues and provisions: replacing ‘free intellectual inquiry’ with ‘freedom of speech and academic freedom’ in HESA .......................................................... 14

Concluding comments ................................................... 16

Date introduced: 28 October 2020

House: House of Representatives

Portfolio: Education

Commencement: The day after the Act receives Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2020.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 2

Purpose of the Bill The purpose of the Higher Education Support Amendment (Freedom of Speech) Bill 2020 (the Bill) is to amend the Higher Education Support Act 2003 (HESA) to repeal and replace the two references to ‘free intellectual inquiry’ with references to ‘freedom of speech and academic freedom’, and insert a definition of academic freedom.

These changes are part of the Government’s response to the Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers (the French Review), published in March 2019.1 The response to the French Review has so far consisted of universities agreeing to adopt a model code on freedom of speech and academic freedom, without the need for legislative changes.2 Education Minister Dan Tehan stated in his second reading speech that the purpose of the Bill’s proposed amendments is to align the language of HESA with the language used in the model code.3

The background to this Bills Digest provides an overview of the protections for academic freedom currently provided at state and territory, Commonwealth, and university level. It then summarises key concerns about freedom of speech and academic freedom—these include matters such as university and academic autonomy, academic bias, student academic freedom, campus culture, and student politics, which together provide the focus for a sometimes contradictory set of policy problems, informed by varying political and world views.4 The issues and provisions and concluding comments sections of this Bills Digest therefore consider not only whether the Bill achieves its aim of consistency in terminology in order to reduce the complexity of legislative frameworks related to academic freedom, but how it addresses and features in the broader issues that feed continued interest in this topic.

Background

Academic freedom Academic freedom is generally considered fundamental to the effective functioning of universities. Although there are some areas of debate, it is widely understood to comprise the freedom of members of an academic community to undertake scholarly work in accordance with standards and ethics determined by that community without outside pressure, and is intended to safeguard the rigor and accuracy of scholarship and research.5

In contemporary Australian universities, academic freedom has been described by academics as ‘an individual right to: teach, research and publish on contentious issues; choose their own research colleagues; and speak on social issues without fear or favour in areas of their expertise…

1. R French, Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers, (French Review), [Department of Education, Skills and Employment (DESE)], [Canberra], March 2019. 2. D Tehan (Minister for Education), Independent Review of Freedom of Speech in Australian Higher Education Providers, media release, 6 April 2019; D Tehan, ‘Second reading speech: Higher Education Support Amendment (Freedom of Speech)

Bill 2020’, House of Representatives, Debates, (proof), 28 October 2020, pp. 5-6. 3. Tehan, ‘Second reading speech’, op. cit., p. 5. A draft model code was included in the French Review, op. cit., pp. 230-236. 4. French Review, op. cit., p. 13. 5. World University Service, The Lima Declaration on Academic Freedom and Autonomy of Institutions of Higher Education,

September 1988; United Nations Educational, Scientific and Cultural Organization, Recommendation concerning the Status of Higher-Education Teaching Personnel, 11 November 1997; International Association of Universities, Academic freedom, university autonomy and social responsibility, April 1988; Association of American Universities, Group of Eight (Australia), League of European Research Universities, Chinese 9 Universities, Hefei Statement on the ten characteristics of contemporary research universities, October 2013; Council for the Development of Social Science Research in Africa, The Kampala Declaration on Intellectual Freedom and Social Responsibility, 29 November 1990.

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balanced by the responsible and disciplined exercise of scholarly expertise’.6 These rights and responsibilities are provided through state and Commonwealth legislation, as well as in internal university policies, and (in some cases) enterprise agreements.

State and territory legislation Australian universities are predominantly creations of state governments.7 Each university’s establishing Act sets out its purpose, governance arrangements, and any other responsibilities.

Provision is generally (although not always) made for free inquiry in these Acts. For example, according to the University of Sydney Act 1989, the object of the University is ‘the promotion, within the limits of the University’s resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence’.8 Under the University of Canberra Act 1989, the Australian Capital Territory Chief Minister, in appointing members to the University of Canberra’s governing Council, must try to ensure that members ‘have an appreciation of the values of a higher education provider, its core activities of teaching and research, its independence and academic freedom and the community’s needs’.9

Commonwealth legislation The regulation of universities predominantly occurs through the national higher education regulator, the Tertiary Education Quality and Standards Agency (TEQSA), operating under the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act). As a condition of registration with TEQSA, each higher education provider’s governing body must ‘develop and maintain an institutional environment in which freedom of intellectual inquiry is upheld and protected’—this is required to meet the Threshold Standards (currently the Higher Education Standards Framework (Threshold Standards) 2015) under the TEQSA Act.10

This requirement is a well-established condition of Australian university registration. Prior to the establishment of TEQSA, state and territory governments were responsible for higher education provider approvals. The Threshold Standards are adapted from the National Protocols for Higher Education Approval Processes (National Protocols), agreed by the Commonwealth and state and territory higher education ministers in 2000, and revised in 2007, which also contained a requirement that Australian universities demonstrate ‘commitment of teachers, researchers, course designers and assessors to free inquiry and the systematic advancement of knowledge’.11

In addition to requirements under the TEQSA Act, HESA, the Commonwealth higher education funding Act, requires each Australian university to have in place a policy to uphold ‘free

6. C Kayrooz, P Kinnear and P Preston, Academic freedom and commercialisation of Australian universities: perceptions and experiences of social scientists, Discussion paper, 37, The Australia Institute, March 2001, p. 44. 7. The exceptions to this are the Australian National University, established by the Commonwealth under the Australian National University Act 1991 (Cth), the Australian Catholic University, which was established in 1991 as a Company Limited by

Guarantee, and recognised by the state of Victoria through the Australian Catholic University (Victoria) Act 1991 (Vic), the Australian universities not established or recognised as public institutions by any jurisdiction (listed in Table B in section 16-20 of the Higher Education Support Act 2003 (HESA); Bond University; The University of Notre Dame Australia; University of Divinity; and Torrens University Australia. 8. University of Sydney Act 1989 (NSW), subsection 6(1). 9. University of Canberra Act 1989 (ACT), paragraph 11A(3)(b). 10. Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act), subsection 21(1); Higher Education Standards

Framework (Threshold Standards) 2015, Standard 6.1.4. 11. Higher Education Standards Framework (Threshold Standards) 2011, Chapter 2, section 2.4; Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA), National Protocols for Higher Education Approval Processes,

31 March 2000, pp. 1-3, 5; MCEETYA, National Protocols for Higher Education Approval Processes, October 2007, p. 10.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 4

intellectual inquiry’ in learning, teaching and research.12 This requirement, along with similar wording in the objects of the Act, was introduced in 2011 to align with the establishment of TEQSA and introduction of the Threshold Standards (at that time the Higher Education Standards Framework (Threshold Standards) 2011).13

University policies and enterprise agreements Consistent with the requirements of HESA and the Threshold Standards, each Australian university provides for freedom of intellectual inquiry through its internal policies and procedures. Specific arrangements vary by institution, with provisions appearing in policy statements, codes of conduct, and enterprise agreements.

For example, the Australian National University (ANU) Academic Board’s statement on Academic Freedom states:

Academic freedom is enjoyed by all members of ANU: staff, students and official visitors. It is exercised through activities relating to that membership centred on the three pillars of teaching, research and public engagement.

Academic freedom enables scholars within the University to pursue knowledge, speak and write without unreasonable restriction. This includes the right to comment on political matters including policies affecting higher education, and the actions of the University, on the basis of legitimate intellectual and professional criteria.

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The ANU enterprise agreement provides protection for academic freedom:

The University supports and upholds the concept and practice of academic freedom in accordance with the University Code of Conduct policy. Further, the University supports all staff engaging in active and frank internal debate and consultation, and the right of its staff to freely participate in such debate provided it is within the expectations of the Code of Conduct.

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The ANU Code of Conduct further specifies:

The University recognises the concept and practice of academic freedom as central to the proper conduct of teaching, research and scholarship.

Academic and professional staff are expected to use this freedom in a manner that is consistent with a responsible and honest search for knowledge and its dissemination.

Academic freedom does not extend to behaviour that is harassing, disruptive and intimidating or that interferes with the academic or work performance or freedom of others. 16

Likewise, the University of New South Wales (UNSW) academic staff enterprise agreement deals with intellectual freedom:

12. HESA, section 19-115. Formally, the requirement is imposed on Table A and Table B universities as a condition of registration to be funded under HESA. Higher education providers must meet certain ‘quality and accountability requirements’ which includes the free intellectual inquiry requirements before receiving funding (see for example HESA, section 36-60 in relation to Commonwealth Grant Scheme funding).

13. Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011; C Dow, Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Bill 2011, Bills digest, 147, 2010-11, Parliamentary Library, Canberra, 2011.

14. Australian National University (ANU), The Australian National University statement on academic freedom 2018, 2018. 15. ANU, Enterprise Agreement 2017-2021 (varied), certified 6 July 2020, subclause 21.1. 16. ANU, Code of Conduct, 1 April 2019.

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The University recognises intellectual freedom which entails the right of an employee to:

(i) contribute to the decision-making processes and structures of the University; including the right to express opinions about the operations of the University and higher education policy more generally;

(ii) pursue critical and open inquiry, publish, research and, consistent with the University's academic processes, freely discuss, teach, assess and develop curricula;

(iii) participate in public debates and express opinions about issues and ideas and about the University or higher education issues more generally;

(iv) participate in professional and representative bodies, including unions, and engage in community service;

(v) express their personal views, consistent with the University's Code of Conduct,

without fear of harassment, intimidation or unfair treatment. 17

The UNSW Code of Conduct further specifies:

The University recognises and protects the concept and practice of academic freedom as essential to the proper conduct of teaching, research and scholarship within the University. While academic freedom is a right, it carries with it the duty of academics to use the freedom in a manner consistent with a responsible and honest search for and dissemination of knowledge and truth. Academic freedom is not a defence to poor behaviour or disrespectful treatment of others.

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UNSW also summarises its commitment to promoting and protecting academic freedom in its Academic and Intellectual Freedom at UNSW statement.19

Concerns about academic freedom and free speech on campus Despite the long tradition and range of legislative and non-legislative protections for academic freedom summarised in the previous section, the practical effect of these provisions, and their precise character and limitations, are a recurrent subject of political and policy debate in Australia.

On the one hand, a relatively narrow conception of academic freedom, consistent with the traditions and protections outlined so far in this Bills Digest, tends to be associated with concerns about the ways in which institutional and academic autonomy may be constrained, and whether this constitutes undue interference in academic work.

On the other hand, a broader conception of academic freedom has been associated with concerns about academic bias and freedom of speech, and whether a dominant university culture unduly limits the range of perspectives that are welcome on campus. These kinds of concerns have at times been the focus of considerable public debate.

17. University of New South Wales (UNSW), University of New South Wales (Academic Staff) Enterprise Agreement 2018, clause 23, p. 24. 18. UNSW, Code of Conduct, 14 August 2017, p. 2. 19. UNSW, Academic and intellectual freedom at UNSW, July 2017.

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Institutional and academic autonomy Universities argue that the maintenance of academic freedom relies on some degree of institutional autonomy—that is, a university’s capacity to control its teaching and research, the internal distribution of its financial resources, and recruitment of staff.20 The history of this ideal can be traced to a number of sources, one of the most influential being John Henry Newman’s 19th Century idea of the university as concerned with the pursuit of truth for its own sake.21 Famously, the twentieth century saw the importance of academic independence affirmed in democratic nations after Trofim Lysenko’s flawed agricultural research, designed to align with ideology in the Soviet Union, contributed to substantial economic hardship in the 1930s and 1940s.22

The establishing Acts of Australian public universities provide for institutional autonomy for each university through an independent governing body, normally described as a Senate or Council, responsible for acting in the interests of the university.23 However, in practice, the autonomy of universities and individual members of academic communities are constrained both by other policy domains, and university responses to higher education policy and funding conditions.

In other policy domains, legislation protecting rights, such as anti-discrimination legislation, and public interest, such as defence and anti-terrorism legislation, overrides academic freedom. For example, researchers have raised concerns that the Defence Trade Controls Act 2012 limits academic freedom of inquiry by imposing a permit system for scientific ideas and means of application that may have some military use.24 More recently, universities have expressed similar concerns about the possible effects of the Australia’s Foreign Relations (State and Territory Arrangements) Bill 2020, which proposes to require Australian public universities to notify the Minister for Foreign Affairs of foreign arrangements, and allow the Minister to prevent, cancel, or vary agreements.25

Higher education policy normally seeks to shape academic effort more indirectly. For example, the Research Block Grants, which support research training and the indirect costs of competitive university research grants, incentivise university research engagement with business and other non-university entities by calculating funding partly on the basis of research income from these sources.26 Cases of more direct intervention, such as in 2005 by Education Minister Brendan Nelson and 2018 by Education Minister Simon Birmingham, when both chose to refuse to approve particular Australian Research Council (ARC) competitive grants which had been recommended for

20. International Association of Universities, Academic freedom, op. cit., p. [2]. 21. A short summary of these ideas in the Australian context is in S Marginson, ‘How free is academic freedom?’, Higher Education Research and Development, 16(3), 1997, pp. 359-369; C Evans, A Stone and J Roberts, Academic freedom, Melbourne Legal Studies Research Paper Series, 891, Melbourne Law School, University of Melbourne, 2020, p. 2.

22. H Forsyth, ‘University autonomy and the public interest’, Australian Policy and History, (online), November 13, 2017. 23. See for example, University of Newcastle Act 1989 (NSW), sections 8A, 16; Murdoch University Act 1973 (WA), sections 12, 17; University of Melbourne Act 2009 (Vic), sections 8, 9, 15. 24. K Korb, ‘New defence trade controls threaten academic freedom and the economy’, The Conversation, 1 March 2016. 25. Senate Foreign Affairs, Defence and Trade Legislation Committee, Australia’s Foreign Relations (State and Territory

Arrangements) Bill 2020 [Provisions] and Australia’s Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020 [Provisions], The Senate, Canberra, November 2020, pp. 2-4, 29-41. 26. Department of Education, Skills and Employment (DESE), ‘Research block grants calculation methodology’, DESE website, last modified 6 October 2020.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 7

funding according to the ARC’s usual peer review process, have raised concerns among academics.27

University responses to changing policy conditions also have an impact on academic freedom. According to Hannah Forsyth, a Senior Lecturer in Australian History at the Australian Catholic University:

Since the 1980s, university leaders have often sought to reconfigure much of their task in commercial terms, including their ability to attract government funding on a competitive basis. Unlike the public institutions they had been in the 1940s and 1950s, universities began to behave like an industry, competing with one another (and indeed other sectors) for commercial and government revenue.

While this pattern seems to assure that the public’s need for education and research are explicitly met, the public’s interest in protecting against research findings that pander to specific interest groups at the expense of others is at the same time threatened by this shift in structure. 28

In 2000, the Senate Employment, Workplace Relations, Small Business and Education References Committee found commercial incentives were having a detrimental effect on the capacity of public universities to meet Australia’s higher education needs:

The changing administrative culture of universities has seen governance and management shift from one based on a collegial model to one based on an enterprise or corporate model. An attitudinal change which has accompanied the new managerial culture appears to be a declining respect for the ideal of academic freedom.

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The Committee concluded:

…universities cannot be relied on to maintain their own internal inquiries when serious issues arise which go to the core of academic freedom. As the Committee has noted elsewhere, the new managerial culture is now so entrenched that universities have an instinct to stifle uncomfortable opinions of a kind usually associated with academic institutions. They have an understandable tendency to place the value of the university’s reputation before their obligation to protect the rights of its faculty members to free expression.

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The range of legislative and non-legislative protections, as well as individual decision-makers within universities, makes it difficult to generalise about this issue. However, there are a number of well-known examples of academics being constrained in their public comments by their universities. In one example reported in 2008, an academic who raised questions about Gardasil, the cervical cancer vaccine jointly developed by the University of Queensland and CSL, was asked by the university to apologise for the comments, following a letter of complaint from CSL to the university’s vice chancellor.31 More recently, in August 2020, Elaine Pearson, Australia director of Human Rights Watch and adjunct law lecturer at UNSW, reported that a tweet quoting her concerns about Hong Kong's new national security law had been deleted by the university in response to student criticism of her views, with the university claiming her views were ‘being

27. J Piccini and D Moses, ‘Simon Birmingham’s intervention in research funding is not unprecedented, but dangerous’, The Conversation, 26 October 2018. 28. Forsyth, ‘University autonomy and the public interest’, op. cit. 29. Senate Employment, Workplace Relations, Small Business and Education References Committee, Universities in crisis: report

into the capacity of public universities to meet Australia's higher education needs, Chapter 9: Staffing of public universities, The Senate, September 2001, p. 302. 30. Ibid., p. 305. 31. M Sweet, ‘Academic freedom is at risk in dispute over Gardasil, lecturers say’, BMJ, 336, 2008, p. 741.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 8

misconstrued as representing the university’.32 It has since been reported that the Vice-Chancellor of UNSW, Professor Ian Jacobs, has stated that the university acted in error.33

Academic bias, student academic freedom, campus culture, and student politics In contrast to issues discussed in the previous section, some commentators, building on arguments from the United Kingdom (UK), United States (US), and Canada, argue that academic freedom is undermined by the biases of academics themselves, and the tendency for universities to prioritise certain viewpoints. According to this perspective, Australian universities lack a diversity of views, and place inappropriate limitations on the arguments that can be put by students, academic staff, and visitors to campus.

Academic bias and student academic freedom In 2008, the Senate Standing Committee on Education, Employment and Workplace Relations undertook an inquiry into allegations of academic bias in universities and schools.34 The Committee was asked to examine:

(a) the level of intellectual diversity and the impact of ideological, political and cultural prejudice in the teaching of senior secondary education and of courses at Australian universities, including but not limited to:

(i) the content of curricula,

(ii) the content of course materials,

(iii) the conduct of teaching professionals, and

(iv) the conduct of student assessments;

(b) the need for the teaching of senior secondary and university courses to reflect a plurality of views, be accurate, fair, balanced and in context; and

(c) ways in which intellectual diversity and contestability of ideas may be promoted and protected, including the concept of a charter of academic freedoms. 35

The inquiry heard evidence about concerns in relation to lack of balance in course content and offerings, and a lack of openness to diverse views from students among lecturers and tutors, including in assessment.36 However, while some evidence from students claiming academic bias among university staff was heard, these experiences appeared to be relatively uncommon and isolated, and the Committee found claims of widespread bias had not been substantiated.37 The Committee considered some examples to reflect poor teaching on the part of staff, and pointed to internal and external quality assurance processes that could better handle concerns about poor teaching quality.38

32. E Pearson, ‘Academic freedom is not negotiable’, The Sydney Morning Herald, 5 August 2020, p. 19. 33. J Butler, ‘UNSW apologises after ‘act of cowardice’ accusation in deleting Hong Kong post’, New Daily, 5 August 2020. 34. Senate Standing Committee on Education, Employment and Workplace Relations, Allegations of academic bias in universities and schools, The Senate, Canberra, December 2008.

35. Ibid., p. vii. 36. Ibid., pp. 11-18. 37. Ibid., pp. ix-x. 38. Ibid., pp. 18-22.

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The difficulty of assessing such claims is partly based on the discipline-specific professional judgment that makes up the day-to-day work that takes place within universities—itself the main focus of academic freedom protections as they currently exist.39 If a certain subject, or whole discipline, prioritises knowledge that is inconsistent with a student’s world view (focusing, for example, on how gender shapes everyday experience), this has the potential to lead to interactions that are challenging for some students. However, it is not clear how a policy response from outside the university could address this tension in a way that changes the ideas and assessment practices in university courses, without also infringing on the academic freedom of staff.

The Senate Committee inquiry into allegations of academic bias in universities and schools also questioned the extent to which students should be understood as having academic freedom (a claim which appeared to underpin some of the concerns raised about academic bias), suggesting undergraduate students in particular are tasked with mastering a body of knowledge, including awareness of debates within the field, and could not reasonably claim academic freedom to take an ‘idiosyncratic perspective’.40 Others have argued that the key determinant is not who has academic freedom, but the activity in which they are engaged—from this perspective, any member of an academic community (student, academic, professional staff, or visitor) is understood to have academic freedom if they are engaged in knowledge production and dissemination.41 This view is evident to some extent in the university policies outlined in the previous section, and in HESA, which currently refers to ‘free intellectual inquiry’ in learning, as well as teaching and research.42 However, if students do claim academic freedom, this engages a need for ‘responsible and disciplined exercise of scholarly expertise’—that is, academic freedom is not usually understood to require any view to be treated as equally valid.43 Claims which test the boundaries of academic freedom by reference to free speech are considered in the next section.

Campus culture and student politics More recent writing about Australian universities limiting the diversity of views that can be put by students, academic staff, and visitors to campus has tended to treat academic freedom ‘as the on-campus version of freedom of speech’.44 Carolyn Evans, Vice Chancellor and President of Griffith University, and Adrienne Stone, Professor and Director of the Centre for Comparative Constitutional Studies at the University of Melbourne Law School, have argued that in an academic context, freedom of speech is constrained by academic methods and standards which constitute disciplinary expertise (what is understood as good work in the discipline of history, for example).45 This is distinct from broader social appeals to freedom of speech, which draw, for example, on John Stuart Mill’s argument of a search for truth through the exposure of ideas to contradiction in a ‘marketplace of ideas’.46 That is:

…academic discourse simply does not resemble the unruly and overloaded modern marketplace of ideas. Instead, the constraints of the disciplines - the commitment to academic methods and standards

39. C Evans and A Stone, Open minds: academic freedom and freedom of speech, Melbourne Legal Studies Research Paper series, 890, Melbourne Law School, University of Melbourne, 2020, p. 2. 40. Senate Standing Committee on Education, Employment and Workplace Relations, Allegations of academic bias, op. cit., p. 11. 41. Evans, Stone and Roberts, Academic freedom, op. cit., p. 5. 42. HESA, section 19-115. 43. Kayrooz, Kinnear and Preston, Academic freedom and commercialisation of Australian universities, op. cit., p. 44. 44. Evans and Stone, Open minds, op. cit., p. 1. 45. Ibid., p. 2. 46. Evans, Stone and Roberts, Academic freedom, op. cit., pp. 8-11.

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- are designed precisely to address the kinds of problems that bedevil public discourse [insensitivity to harm and over-optimism about truth seeking through public discourse]. 47

Perhaps the best known recent work focusing on free speech on campus is from the Institute for Public Affairs (IPA), which conducted a series of Free Speech on Campus Audits from 2016 to 2018, citing university equity and diversity policies and the role of students in silencing particular perspectives. The IPA’s 2018 audit report states:

A functioning university, to fulfil its Enlightenment mission to strive for empirical truth, depends on the battle of ideas. Today, a censorious culture has developed at universities. Speakers are cancelled and violently protested because certain groups disagree with their ideas. Students are self-censoring for fear of social ostracism and academic repercussions. Trigger warnings, alerts before content that could cause emotional discomfort, and safe spaces are coddling students from intellectual challenge. Activists are demanding course censorship on the basis that they dislike the content. Meanwhile, speech codes have institutionalised restrictions on free speech.

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Former Macquarie University Vice Chancellor Steven Schwartz has made similar arguments, unfavourably comparing contemporary student politics with the Free Speech Movement started at the University of California, Berkley, which defended the free speech rights of controversial speakers, including American Nazi Party officials, in the 1960s.49 Schwartz argues:

…students are becoming increasingly intolerant. Convinced of their fragility, today’s student’s believe that exposure to challenging ideas can be harmful, even traumatic. Some demand ‘safe spaces’ where they can avoid exposure to ideas that make them uncomfortable, and many universities comply. 50

Others have expressed a degree of scepticism in response to such claims. Evan Smith, a Research Fellow at Flinders University, in his recent history of ‘no platforming’ at British universities since the 1970s, notes:

For those supposedly concerned about free speech at universities, students are at the same time both fragile, risk averse ‘snowflakes’ and heavy-handed McCarthy-like warriors. Students are to be both pitied and feared.

…in an era of a resurgent far right, conservatives and libertarians in the United States, Canada, Australia and New Zealand have expressed alarm about the end of freedom of speech on university campuses. At a moment when students have seemingly become more vocal about rejecting all forms of hate speech (including racism, misogyny, homophobia and transphobia), the concept of free speech has been weaponised by the right in its various guises as a smokescreen to air offensiveness and to promulgate far right ideas about race, sexuality and gender.

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Smith also points out that trigger warnings and safe spaces, although often treated together by critics, are distinct from no platforming.52 Smith details how the emergence of ‘no platforming’ in the 1970s was in response to the spread of fascist and racist ideas on campus, and the apparent rise of the National Front.53 He argues that contemporary student resistance to certain kinds of

47. Ibid., p. 11. 48. M Lesh, Free Speech on Campus Audit 2018, Institute of Public Affairs, [Melbourne], December 2018, p. 4. 49. S Schwartz, ‘You can’t say that’, in WO Coleman, ed, Campus meltdown: the deepening crisis in Australian universities, Connor Court Publishing, Redland Bay, Queensland, 2019, pp. 43-46.

50. Ibid., p. 46. 51. E Smith, No platform: a history of anti-fascism, universities and the limits of free speech, Routledge, Abingdon, 2020, p. 2. 52. Ibid., pp. 11-12. 53. Ibid., pp. 4-8.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 11

speech or speakers can also be understood as having serious intent, in that it seeks to prevent universities, as a hub of the ‘marketplace of ideas’, being used to host events for the purposes of capturing public space for racist agitation.54

In some respects, this strand of debate is a continuation of the long history of student politics on university campuses. Students have long agitated over ideas, including language.55 As discussed below, the French Review dealt with the issue of free speech by considering it as a component of academic freedom—academic freedom does rely on, and operate as part of a tradition of, democratic free speech. However, it is not clear that this, or any other higher education policy specific approach, is likely to provide a mechanism to resolve the claims exemplified by the IPA.

In Australia, recent higher education policy about student politics has largely focused not on intervening in the decision making of autonomous universities, but on funding for membership of student representative organisations, including political organisations. Concerns and advocacy around voluntary student unionism can be traced back to reactions against radical student politics of the 1960s and 1970s.56 There is a long history of legislative back and forth over this issue.57 Today’s student services and amenities fee (SSAF), a compulsory fee for student services and amenities of a non-academic nature, does not require a student to be a member of the students’ association, although prior to 2005 some student ‘union fee’ or ‘student services fee’ arrangements did come with automatic membership of the student union.58 The Bill does not propose any changes to the SSAF.

Independent review into freedom of speech in higher education In November 2018, Education Minister Dan Tehan announced a review into university freedom of speech would be undertaken by Former Chief Justice of the High Court Robert French.59 Minister Tehan announced the review would:

 Assess the effectiveness of the Higher Education Standards Framework (the Standards) to promote and protect freedom of expression and freedom of intellectual inquiry in higher education.

 Assess the effectiveness of the policies and practices to address the requirements of the Standards, to promote and protect freedom of expression and intellectual inquiry.

 Assess international approaches to the promotion and protection of free expression and free intellectual inquiry in higher education settings, and consider whether any of these approaches would add to protections already in place in the Australian context.

 Outline realistic and practical options that could be considered to better promote and protect freedom of expression and freedom of intellectual inquiry, including:

54. Ibid., p. 10. 55. H Forsyth, A history of the modern Australian university, NewSouth Publishing, Sydney, 2014, pp. 67-87. 56. For more discussion of this context, see A Norton, ‘The free market case against voluntary student unionism (but for voluntary student representation)’, Issue Analysis, 62, The Centre for Independent Studies, 31 August 2005, p. 2.

57. K Jackson, Higher Education Legislation Amendment Bill 1999, Bills digest, 137, 1998-99, Parliamentary Library, Canberra, 19 March 1999. 58. HESA, section 19-37 (which stipulates that a university must not require a person to become a member of a students’ association); DESE, ‘Student Services and Amenities Fee’, DESE website, last modified 16 November 2020. A list of those

universities that charged membership fees and required membership of the student organisation as a condition of enrolment at 2005 is available from Australian Vice-Chancellors’ Committee (AVCC), Student services, student organisations, AVCC, November 2005. 59. D Tehan (Minister for Education), Review into university freedom of speech, media release, 14 November 2018.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 12

o revision/clarification of the Standards

o development of a sector-led code of conduct. 60

The report of the French Review, published in March 2019, took the terms of reference to refer to academic freedom, and understood freedom of speech as one component of this:

‘Academic freedom’ does not appear in the Terms of Reference. They mention ‘free intellectual inquiry’ because that term appears in the HE Standards [Threshold Standards]. It is a term of uncertain meaning but seems to cover some elements of academic freedom. Freedom of speech is an aspect of academic freedom although used in a sense which is not congruent with the general freedom of expression applicable on and off campus. It is a freedom which, in this context, reflects the distinctive relationship of academic staff and universities, a relationship not able to be defined by reference to the ordinary law of employer and employee relationships.

61

By folding freedom of speech into the definition of academic freedom, the French Review was able to deliver a response that is actionable within the existing Commonwealth higher education legislative framework. The French Review concluded:

So called ‘right’ and ‘left’ perspectives have informed debate in Australia. From the available evidence however, claims of a freedom of speech crisis on Australian campuses are not substantiated.

That said, there is a range of diverse and broadly framed institutional rules, codes and policies covering a variety of topics which leave room for the variable exercise of administrative discretions and evaluative judgments. These are capable of eroding the fundamental freedom of speech and that freedom of speech which is an essential element of academic freedom. That fact constitutes a risk to those freedoms and makes the sector an easy target for criticism.

The answer to those concerns is not increased government regulation. Existing legislative and statutory standards are pitched at a level of generality which allows for choice in how their requirements are met. They respect institutional autonomy which is a dimension of academic freedom. However, the relevant Higher Education Framework (Threshold Standards) 2015 (HE Standards) could be clarified by changing their subject matter from ‘free intellectual inquiry’ to ‘freedom of speech’ and ‘academic freedom’ and inserting a workable definition of the essential elements of academic freedom.

The principal recommendation emerging from this Report is that protection for the freedoms be strengthened, within the sector, on a voluntary basis by the adoption of umbrella principles embedded in a Code of practice for each institution…

The Model Code proposal, together with cognate amendments to the Higher Education Support Act 2003 (Cth) (HES Act) and the HE Standards are offered as a means of protecting and enhancing participatory institutional autonomy and the freedoms it should serve. 62

Minister Tehan’s April 2019 media release indicated that he intended to write to all higher education providers to ‘urge them to carefully consider Mr French’s recommendations and the adoption of the Model Code’.63 In the media release, he also indicated that the Model Code could

60. Ibid. 61. French Review, op. cit., p. 18. 62. Ibid., pp. 13-14. 63. Tehan, Independent Review of Freedom of Speech in Australian Higher Education Providers, op. cit.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 13

be adopted without amendments to HESA or the Threshold Standards.64 All Australian universities agreed to implement the Model Code by the end of 2020.65

In August 2020, Minister Tehan announced an independent review to evaluate the progress that universities have made implementing the French Model Code on university free speech, to report by November 2020.66

Committee consideration

Senate Standing Committee for Selection of Bills The Senate Standing Committee for Selection of Bills recommended the Bill not be referred to committee.67

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.68

Policy position of non-government parties/independents At the time of writing, no non-government parties or independents have expressed a position on the Bill.

Position of major interest groups At the time of writing, no major interest groups have expressed a position on the Bill. Two key interest groups published responses to a consultation draft released in early 2020, which included amendments in substantially similar terms to those in the Bill.69

In response to the consultation draft, the Innovative Research Universities (IRU) expressed support for replacing references to ‘free intellectual inquiry’ with ‘freedom of speech and academic freedom’, but not the draft definition of academic freedom, arguing that the concept is well-known and requires no definition in legislation.70 In particular, the IRU suggested that if a definition were to be adopted, it should not include ‘the freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities’, which appeared in the draft, because such a provision could create ‘highly undesirable employment disputes’.71 This element of the definition does not appear in the Bill, as discussed in the Key issues and provisions section below.

64. Ibid.

65. DESE, ‘Independent review of adoption of the Model Code on freedom of speech and academic freedom’, DESE website, last modified 2 September 2020. 66. D Tehan (Minister for Education), Evaluating progress on free speech, media release, 7 August 2020. 67. Senate Standing Committee for the Selection of Bills, Report, 10, 2020, The Senate, Canberra, 12 November 2020, p. 3. 68. Senate Standing Committee for the Scrutiny of Bills, Report, 16, 2020, The Senate, Canberra, 20 November 2020, p. 29. 69. DESE, ‘Stakeholder consultation on proposed free speech amendments to the Higher Education Support Act 2003 (HESA)’,

9 January 2020. 70. Innovative Research Universities (IRU), ‘HESA free speech amendments - IRU response’, IRU website, 26 February 2020. 71. Ibid.

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The Group of Eight (Go8) included comments on the consultation draft as part of its response to consultation about related amendments to the Threshold Standards, stating:

… while the inclusion of the definition of academic freedom in the HES Act [HESA] may appear to offer some clarity, the definition proposed in the French Review includes elements that are more about free speech than academic freedom. 72

The Go8 indicated that it understood further work was being done by university Chancellors to clarify the definition of academic freedom, and expressed concern about the possibility of institutional autonomy being at risk if internal university policies were overridden by the proposed legislative definition.73

Submissions to the consultation undertaken as part of the French Review are available on the Department of Education, Skills and Employment (DESE) website.74

Financial implications The Explanatory Memorandum states that there are no financial implications from the Bill.75

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.76

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights had not yet considered the Bill.77

Key issues and provisions: replacing ‘free intellectual inquiry’ with ‘freedom of speech and academic freedom’ in HESA Currently, one of the legislated objects of HESA is to support ‘a higher education system that promotes and protects free intellectual inquiry in learning, teaching and research’.78 This is provided through a requirement that each Australian university funded under HESA must have a policy to uphold free intellectual inquiry in these domains.79 If a provider breaches this requirement, the Minister may revoke its HESA registration, which would see the provider lose

72. Group of Eight (Go8), ‘Go8 Submission: Proposed Amendments to Higher Education Standards Framework (Threshold Standards) 2015 (Threshold Standards)’, Go8 website, 29 July 2019. 73. Ibid.

74. DESE, ‘Freedom of speech review’, DESE website, last modified 25 August 2020. 75. Explanatory Memorandum, op. cit., p. 3. 76. The Statement of Compatibility with Human Rights can be found at pages 4-7 of the Explanatory Memorandum to the Bill. 77. Parliamentary Joint Committee on Human Rights, Index of Bills considered by the Committee, 13 November 2020. 78. HESA, subparagraph 2-1(a)(iv). 79. HESA, section 19-115. Formally, all Australian universities are listed in HESA in either Table A in section 16-15 (these are

universities founded under or recognised by legislation—generally referred to as public universities, they are eligible for all HESA funding programs) or Table B in section 16-20 (these are universities that have been independently founded in Australia). HESA also includes bodies listed in Table C in section 16-22 (overseas-founded universities that operate in Australia) and other providers approved by the Minister under section 16-25. HESA does not specify requirements for an institution to be added to Tables A, B or C. However, only Table A and Table B universities are affected by the changes proposed in the Bill.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 15

access to funding.80 Providers are required to inform the Minister in writing of any event affecting the provider, or a related body corporate of the provider, that may significantly affect its capacity to meet this requirement—failure to do so is subject to a civil penalty of 60 penalty units (currently $13,320).81

Items 1 to 3 repeal references to ‘free intellectual inquiry’ in HESA, and replace them with references to ‘freedom of speech and academic freedom’. Item 4 inserts a proposed definition of academic freedom to the dictionary at subclause 1(1) of Schedule 1:

academic freedom means the following:

(a) the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;

(b) the freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research;

(c) the freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled;

(d) the freedom of academic staff to participate in professional or representative academic bodies;

(e) the freedom of students to participate in student societies and associations;

(f) the autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted.

The Government notes the Threshold Standards will also be amended to align with the language in the Model Code.82

These amendments are in similar terms to the consultation draft.83 The definition of academic freedom affirms the autonomy of higher education providers in respect to academic courses and as such will not provide an avenue for student claims of bias in course content or offerings (clause (f) of the proposed definition of academic freedom).

One element of the originally proposed definition of academic freedom in the consultation draft, ‘freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities’, does not appear in the Bill. This omission is consistent with key interest group concerns raised during consultation. For example, the IRU raised concerns that this element of the proposed definition would ‘provide rogue academics with undue protection from the usual standards of academic

80. HESA, section 22-15. The provision of Australian Government grant funding under HESA also include specific requirements to meet this condition, namely: the Commonwealth Grant Scheme (section 36-60); Indigenous student assistance grants (section 38-25); Other Grants (section 41-25); and Commonwealth scholarships (section 46-25). References throughout these sections are to adherence to the quality and accountability requirements which are defined at section 19-1 as including the compact and academic freedom requirements. The compact and academic requirements in turn include the free intellectual inquiry requirements at section 19-115.

81. HESA, section 19-75. Penalties are expressed in penalty units to facilitate adjustment across the Act from time to time. A penalty unit is currently equal to $222, with effect from 1 July 2020. See Notice of Indexation of the Penalty Unit Amount. 82. Explanatory Memorandum, op. cit., p. 2. 83. DESE, Stakeholder consultation, op. cit.

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scrutiny and rigor’.84 However, this does potentially point to an ongoing area of uncertainty in relation to the extent of academic freedom in practice. For example, all Australian universities have social media policies, most of which contain some reference to academic freedom and freedom of speech.85 Most policies seek to distinguish between private social media use (subject to the same freedom of expression as any other person) and use that relates to the person’s university affiliation (subject to academic freedom).86 Yet, there is an inevitable difficulty in distinguishing between the two, especially when mobile digital technology is always available, and more informal interactions may appear alongside academic comment on areas of expertise, and engagement between university staff and students.87

Further, the proposed definition makes clear that academic freedom is extended to students. Andrew Norton has argued:

As academic apprentices, students do not have full academic freedom, which includes the right to choose research topics and to be supported by the university. Academic freedom derives from the intellectual authority of an academic, acquired through getting degrees, receiving academic appointments, and being published and cited in reputable publications. Students are in a different category.

88

While much of the concern with academic freedom does focus on academic staff, arguably the inclusion of ‘learning’ in the current wording of HESA already captures at least some student activity, meaning the proposed definition constitutes a clarification rather than shift in student rights to claim academic freedom. Even so, student academic freedom is likely to be understood not as a general right to take up any view in the classroom, but as subject to the same duties of rigour that accompany the academic freedom of staff.

Finally, while freedom of speech could be treated as a component of academic freedom, as it was in the French Review, the inclusion of this language could also contribute to ongoing uncertainty, given that (as discussed above) one of the main areas of disagreement is over the extent to which academic freedom can be treated as an ‘on-campus version of freedom of speech’.89 While it inserts the term into the HESA, the Bill does not include a proposed definition for ‘freedom of speech’ which adds to this uncertainty.

Concluding comments This Bill addresses one part of a broad range of debates over university and academic autonomy, academic bias, student academic freedom, campus culture, and student politics, which come together to form a sometimes contradictory set of concerns about academic freedom. The French Review and previous Parliamentary inquiries examined some of this terrain, with most concerns found to be unsubstantiated.

This Bill replaces ‘free intellectual inquiry’ with ‘freedom of speech and academic freedom’ in HESA, and inserts a definition of academic freedom. In doing so, it aligns the language of HESA

84. IRU, ‘HESA free speech amendments - IRU response’, IRU website, 26 February 2020. 85. French Review, op. cit., pp. 166-169. 86. Ibid.

87. D Lupton, I Mewburn and P Thomson, eds, The digital academic: critical perspectives on digital technologies in higher education, Routledge, Abingdon, 2017. 88. A Norton, ‘Do students have academic freedom? (And other issues with the proposed legal definition of “academic freedom”)’, Andrew Norton: Higher Education Commentary from Carlton, blog, 14 January 2020. 89. Evans and Stone, Open minds, op. cit., p. 1.

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Higher Education Support Amendment (Freedom of Speech) Bill 2020 17

with the Model Code developed as part of the French Review, which universities have agreed to adopt. With the model code adoption already in progress, there may be little immediate practical effect from the changes proposed in the Bill. While the changes in the Bill contribute to consistency in academic freedom protections, the inclusion of freedom of speech, and specific academic freedom protections for students, may contribute to future issues, while the area of academic staff comment in a private capacity remains an area of uncertainty.

However, uncertainties and debates about the precise character and limits of academic freedom are likely to remain, as the changing context within which universities operate shapes a division between the ‘romance’ of academic freedom, and its reality.90 Simon Marginson, Professor of Higher Education at the University of Oxford, has argued that contemporary academic freedom can best be understood not as a carving out of government power which leaves academic communities free from the concerns of the society around them in the Newman model, but as:

regulated autonomy in which the freedom of academics in teaching and research is necessary to the discharge of their normal functions, but these functions are exercised within boundaries controlled by government and [university] management. 91

Although this more pragmatic understanding of academic freedom may be well accepted by some, differing understandings of the concept of academic freedom, shaped by differing political and world views, are likely to continue to generate interest in this topic. Free speech claims, such as those put forward by the IPA, are unlikely to be resolved by higher education legislation, which favours a conception of academic freedom where freedom of expression is balanced by scholarly expertise, free from government interference.

90. N Stobbs, ‘Academic freedom and university autonomy’, in S Varnham, P Kamvounias and J Squelch, eds, Higher education and the law, The Federation Press, Sydney, 2015, pp. 203-214. 91. Marginson, ‘How free is academic freedom?’, op. cit, p. 359.

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