Bills Digest No. 28, 2020–21
PDF version [620KB]
Dr Hazel Ferguson
Social Policy Section
20
November 2020
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions: replacing
‘free intellectual inquiry’ with ‘freedom of speech and
academic freedom’ in HESA
Concluding comments
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.
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… 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 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.[14]
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.[15]
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:
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.[18]
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.
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 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.[29]
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.[30]
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 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]
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 –
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.[48]
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.[51]
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 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:
- revision/clarification of the
Standards
- 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 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.
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 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 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 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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.