Chapter 2Background

2.1This chapter provides an overview of recent inquiries examining the prevalence of antisemitism in Australia, as well as the legislative framework which regulates universities in Australia.

Recent inquiries examining the prevalence of antisemitism in Australia

2.2In referring these matters to the Parliamentary Joint Committee on Human Rights, the Attorney-General stated that:

On 1 October 2024, the Legal and Constitutional Affairs Committee…found there has been a rise in antisemitism in Australia, including on Australian university campuses. It also found the university response to incidents of antisemitism was inadequate, and that further action is needed to address the tensions on university campuses and protect the safety of students and staff. The Legal and Constitutional Affairs Committee was deeply troubled by the experiences of hostility, abuse and discrimination it heard from Jewish students and staff at Australian universities, and their concerns about the lack of support that they received from their university when reporting incidents.[1]

2.3There have also been numerous public reports outlining instances of anti-Jewish violence, graffiti, and attacks on synagogues.[2]

2.4On 4 July 2024, the Senate referred the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2) to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 4 October 2024.[3] This private Senator’s bill sought to establish a commission of inquiry, with Royal Commission-like powers, to inquire into antisemitism at Australian universities, led by a current or former Judge.[4]

2.5The Legal and Constitutional Affairs Legislation Committee received 669 submissions, as well as short statements and form letters. The committee held two hearings in Canberra on 17 September 2024 and 20 September 2024.

2.6The report set out a number of key issues raised by submitters and witnesses, including: experiences of antisemitism on campus; concerns regarding the responses of universities to complaints of antisemitism; the actions of regulators; and alternative mechanisms for addressing antisemitism.[5]

2.7Many submitters and witnesses indicated they had personal experiences of antisemitism. Some submitters and witnesses highlighted either a significant rise in antisemitism or its long-term presence, resulting in a systemic and embedded culture.[6] Others considered that Islamophobia was present at an equivalent level,[7] or that antisemitism had not become endemic.[8]Some argued that discomfort regarding engagement with the Israeli-Palestinian conflict may be incorrectly equated with antisemitism.[9]

2.8Some submitters stated that their mental health had been poorly affected by the campus environment.[10] Some submitters expressed that they had felt fear on campus of being approached and confronted by other university students over being identified as Jewish through their attire such as wearing a yarmulkes or jewellery containing a Star of David.[11]

2.9Universities and university bodies referred to their roles in maintaining or promoting academic freedom and freedom of speech to openly discuss and debate ideas of popular and unpopular nature. Almost all universities noted either reiterating or updating their policies relevant to tackling antisemitism, such as the University of New South Wales’ Anti-Racism Policy which was updated to include Anti-Religious Vilification in compliance with changes to state anti-discrimination legislation,[12] or the University of Melbourne’s re-communication of relevant policies which also handle other forms of racist behaviour.[13]

2.10The report also noted that universities had highlighted further actions they had taken to address antisemitism on their campuses, including:

University of Melbourne provided a physical space for Jewish students, alongside consistent contact with Jewish student representatives and the implementation of a safety app which reported offensive stickers and graffiti for campus security to manage;

University of Technology Sydney provided a physical space, and regularly engaged with student leaders from the Australasian Union for Jewish Students (AUJS), the Palestinian Society and Student Representative Council;

Deakin University and the University of Adelaide noted that they had taken action under their existing student misconduct procedure or rules; and

The University of Sydney advised that it was in constant contact with NSW Police during the encampment and regularly communicated to students and staff the University’s expectations in accordance with their code of conduct and other policies and guidelines.[14]

2.11A number of senior university leaders noted their efforts to balance the right to protest and the protection of academic freedom with the rights of staff and students to conduct their work and study in a safe environment when responding to student encampments on campus.[15]

2.12Many assessments of the response to antisemitism by universities were negative. Many examples provided in the report argued that university responses were lacking, uncoordinated, or dismissive. For example, the Australasian Union of Jewish Students (AUJS) Vice-President Mr Zachary Morris argued that universities are hesitant to engage, and maintain engagement, with certain issues:

One [systemic gap] that we've noticed is, if an incident is significant enough to be reported to the police, then in that case universities will be reluctant to investigate because they don't want to compromise a police investigation. But, if the police don't follow up because they don't perceive it as serious enough, then you almost have this issue where the higher the gravity of the incident, the less likely it is to get reported on or followed up.[16]

2.13The Executive Council of Australia Jewry and AUJS argued that the failure of universities stemmed from inaction, often due to an inability to distinguish ‘free speech’ and ‘academic freedom’ from antisemitic or discriminatory language, and the conflation of antiracist mechanisms with antisemitic responses, rather than providing a response focused on antisemitism.[17]

2.14The Tertiary Education Quality and Standards Agency (TEQSA)—the independent national quality assurance and regulatory agency for higher education—expressed concern that education providers had not applied what they had learnt with regard to developing trauma-informed policies, procedures and grievance procedures in cases of sexual assault and sexual harassment to complaints of antisemitism.[18]

2.15The committee recommended that, in collaboration with TEQSA and the Special Envoy to Combat Antisemitism, all Australian universities urgently review their complaints processes and give effect to any and all changes necessary to ensure these processes are known to and understood by students and staff, and deliver real and meaningful outcomes for complainants.[19] It also recommended the referral of an inquiry into antisemitism to this committee.

Regulation of universities

2.16Universities in Australia are subject to both Commonwealth legislation, as well as to the operation of various state or territory laws depending on their location.

2.17The Higher Education Support Act 2003 is the primary legislation governing universities. It imposes obligations on universities in order to remain eligible for public funding, and in particular:

the objects of the Act include to support a higher education system that ‘promotes and protects freedom of speech and academic freedom’;[20]

defines ‘academic freedom’ to include: 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;[21]

requires a complaints mechanism to exist for both academic and non-academic purposes;[22] and

requires that universities have a policy that upholds freedom of speech and academic freedom.[23]

2.18It incorporates monitoring, investigation and enforcement powers under the Regulatory Powers (Standard Provisions) Act 2014 to provide mechanisms for these provisions to be enforced.[24]

2.19Universities are subject to oversight by TEQSA. TEQSA is responsible for regulating and assuring the quality of all providers of higher education in Australia pursuant to the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act). This Act provides for the administrative and quality evaluation of universities and provides for the creation of higher education standards by legislative instrument. These standards are used to regulate universities and courses of study.

2.20TheHigher Education Standards Framework (Threshold Standards) 2021, made pursuant to the TEQSA Act, include requirements that:

access to support services and the promotion and fostering of a safe environment; as well as a critical-incident policy together with readily accessible procedures that cover the immediate actions to be taken in the event of a critical incident and any follow-up required;[25]

access to mechanisms that are capable of resolving grievances; policies and processes that deliver timely resolution of formal complaints; and their consistent and fair application;[26] and

the governing body takes steps to develop and maintain an institutional environment in which freedom of speech and academic freedom are upheld and protected; students and staff are treated equitably; the wellbeing of students and staff is fostered; informed decision making by students is supported and students have opportunities to participate in the deliberative and decision-making processes of the higher education provider.[27]

2.21TEQSA does not have the legislative authority to issue standardised requirements on higher education providers. Rather, it issues guidance and statements of regulatory expectations about specific actions which it expects universities to take.[28]

2.22On 10 December 2024, the Universities Accord (National Student Ombudsman) Act 2024 received Royal Assent. This established the National Student Ombudsman as a new statutory function of the Commonwealth Ombudsman to deal with complaints about, and conduct investigations into, any action of higher education providers (aside from excluded actions).[29] The National Student Ombudsman will also provide universities with training and advice on handling complaints.

2.23In addition, universities have obligations arising under other laws. For example, the Racial Discrimination Act 1975 makes it unlawful to discriminate against a person based on their race, country or origin or ethnic origin.[30] It is also unlawful to do a public act that is reasonably likely to offend, insult, humiliate or intimidate a person because of their race, colour or national or ethnic origins.[31] The Australian Human Rights Commission can investigate complaints regarding alleged breaches of the Racial Discrimination Act. Further obligations may also apply to universities under state or territory law, depending on the state or territory in which it is located.[32]

2.24Of broader relevance, the Criminal Code Act 1995 criminalises:

the urging of violence against groups or members of groups (which are distinguished by race, religion, nationality, national or ethnic origin or political opinion);[33]

the advocacy of genocide;[34] and

the public display of a prohibited Nazi symbol or prohibited terrorist organisation symbol, or the making of a gesture that is the Nazi salute.[35]

2.25On Thursday, 6 February 2025, the Criminal Code Amendment (Hate Crimes) Bill 2024 passed both Houses of Parliament.[36] This bill (now Act) expands existing offences and introduces new offences for displaying prohibited hate symbols and urging or threatening violence against groups or members of groups with protected attributes. It also removed the existing defence of taking an action in good faith, and introduced mandatory minimum terms of imprisonment for several offences, including:

public display of prohibited Nazi symbol or giving Nazi salute;[37]

public display of prohibited terrorist organisation symbols;[38] and

advocating force or violence through causing damage to property.[39]

Current studies examining racism at universities

2.26On 25 February 2024, the Australian Universities Accord recommended:

That to contribute to making the tertiary education system as safe as possible for students andstaff, the Australian Government conduct a study into the prevalence and impact of racism across the tertiary education system, on campus and online, guided by an expert committee with representation from a wide range of stakeholder groups, with the Australian Tertiary Education Commission tasked with leading the response and acting on the outcomes.[40]

2.27In response, the government stated that it would undertake a study intoantisemitism, Islamophobia, racism andtheexperience of First Nations people in the university sector.[41] This study, being undertaken by the Australian Human Rights Commission (AHRC), is being led by the Race Discrimination Commissioner, Mr Giridharan Sivaraman. An interim report was published in December 2024, and noted that:

Indigenous participants report enduring structural and interpersonal racism;

Jewish students and staff cited a rise in antisemitism since October 2023, including extremist propaganda, intimidation, and exclusion. Concerns over safety were compounded by insufficient university responses;

Palestinian, Arab, and Muslim Students and Staff described hostility, threats, and discriminatory practices, including restrictions on cultural expression and prayer spaces;

African students and staff frequently encountered severe racism and Asian participants reported being stereotyped; and

reports of exclusion, social isolation, and fears of visa repercussions were common among international students.[42]

2.28The next phrase of the study will include a comprehensive survey of students and staff. The final report is due in June 2025.

2.29In addition, the AHRC launched a national Anti-Racism Framework in November 2024, which ‘provides a roadmap for governments, business and community organisations to address all forms of racism in Australia’.[43]

French Model Code Review

2.30In 2019, former Chief Justice of the High Court of Australia the Hon Mr Robert French AC undertook an extensive review of the effectiveness of higher education standards, policies and practices to promote and protect freedom of expression and freedom of intellectual inquiry in higher education.[44]

2.31The report included an extensive and comprehensive analysis of the legislative and regulatory framework regulating the operation of Australian universities. It also considered, in detail, permissible limits on freedom of speech and the application of definitions:

Constraints upon freedom of speech under the general law often require difficult judgments about which reasonable minds may differ. Laws affecting freedom of speech, both by way of protection and qualification of the freedom, often use rather general language. Its application can create challenges for administrators and law enforcement agencies and ultimately by courts. In the case of the domestic rules and policies of higher education providers the broader the terminology used to describe the circumstances in which expressive conduct can be constrained, the wider the potential application of constraints and the greater the risk of overreach even if resulting from ad hoc decisions short of a systemic approach. Its general conclusions draw attention to broad terminology utilised by universities within their own policies and rules.[45]

2.32The review recommend that higher education providers adopt at least umbrella principles operationalised in a code applicable to cases in which freedom of speech and academic freedom may be in issue.[46] It cautioned that:

There are cases in which there may be strong ‘harm’ arguments for not providing a platform for the lawful expression of an opinion. As a matter of general principle, the class of speech to be characterised as ‘harmful’ for the purpose of a model code should be as small as possible and, by its very definition, offer justification for the imposition of a restriction.[47]

2.33As to the appropriate role of regulators, it stated:

Arming a regulator with a detailed statutory prescription would probably require additional compliance resourcing for the regulator. It would impose on the regulator the burden of contestable evaluative and normative judgments. It would diminish institutional autonomy. A statutory standard, beyond the level of generality presently reflected in the HE Standards made under the TEQSA Act, is at risk of being disproportionate to any threat to freedom of expression which exists or is likely to exist on Australian university campuses for the foreseeable future.

Effective statutory standards can and should be confined to broadly expressed requirements that higher education providers have in place policies reflected in their domestic rules or principles and applicable to student representative bodies, the objectives of which are the protection of freedom of speech as a free-standing value and academic freedom which encompasses freedom of expression peculiar to the distinctive character of higher education institutions and their academic staff in particular.[48]

2.34As to the potential relevance of human rights legislation, the review stated:

A more far-reaching measure, in relation to freedom of speech generally, would be the imposition of a statutory duty on higher education providers in relation to freedom of expression which is modelled on the duty imposed on public authorities under the human rights legislation of Victoria, the ACT and now Queensland and in the United Kingdom under the Human Rights Act 1998 (UK). Freedom of speech and expression in that statutory context are terms which are the subject of an extensive body of domestic and international law which has worked out their application and limits case-by-case over many years. The imposition of such a statutory mandate would not involve the application of a novel legal standard although it would be necessary to ensure that its application to the decision-making of higher education providers covered the exercise of statutory discretions and the application of domestic rules and policies. The proposed Model Code should provide a way of responding to such a statutory duty in those places in which it already applies.

Some might say — if a law of the Commonwealth were to create a statutory mandate along the lines of the existing Victorian, Queensland or ACT provisions applicable to higher education providers —why should it not apply to all public authorities throughout Australia? Such an application would appear to be within the constitutional authority of the Commonwealth Parliament to make laws with respect to external affairs, given the inclusion of freedom of expression in the International Covenant on Civil and Political Rights to which Australia is a party. This Review does not propose a general statutory duty of the kind imposed in Victoria, Queensland and the ACT as one of its recommendations. Such a proposal would have policy implications with which it is not necessary to engage for present purposes. The recommendation of a Model Code, operationalising umbrella principles, coupled with cognate amendments to the HES Act and the HE Standards should be sufficient unto the day.[49]

2.35In relation to ‘hate speech’ and freedom of speech, the review examined the definition of hate speech across other jurisdictions, noting:

[I]t is desirable that if the term ‘hate speech’ is used in university rules or policies it should be defined at a level that is relatable to ordinary usage, rather than at a level which widens the range of constraints which may be imposed on expressive conduct well beyond that which ordinary people would understand as involving ‘hate’ or incitement to ‘hate’.[50]

2.36The Hon Robert French AC developed a Model Code for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers (the code). The objects of the code are:

(a)to ensure that the freedom of lawful speech of staff and students of the university and visitors to the university is treated as a paramount value and therefore is not restricted nor its exercise unnecessarily burdened by restrictions or burdens other than those imposed by law and set out in the principles of the code;

(b)to ensure that academic freedom is treated as a defining value by the university and therefore not restricted nor its exercise unnecessarily burdened by restrictions or burdens other than those imposed by law and set out in the principles of the code; and

(c)to affirm the importance of the university’s institutional autonomy under law in the regulation of its affairs, including in the protection of freedom of speech and academic freedom.

2.37The code provides that staff and students at the relevant university enjoy freedom of speech exercised on university land or in connection with the university subject only to specific restraints or burdens.[51] It provides that universities should have regard to the principles of the code when drafting, reviewing, amending or interpreting polices, rules, or delegated legislation. It provides that universities’ duty to foster the wellbeing of staff and students does not extend to a duty to protect any person from feeling offended or shocked or insulted by the lawful speech of another.

Adoption of the Model Code

2.38Following the review, the federal government asked Professor Sally Walker AM to review the implementation of the voluntary code by universities, to provide institutions with advice and suggestions on options to address any evident gaps in policies and to provide the minister with advice on the overall alignment of relevant polices across the university sector with the principles of the code. Professor Walker provided her report in November 2020.[52] At this time, 33 of 42 universities had implemented the code – nine were assessed as fully aligning, 14 were mostly aligned, four were partly aligned and six were not aligned.

2.39Professor Walker made several recommendations, including that universities should adopt a single, overarching code or policy dealing with freedom of speech and academic freedom and there should be some amendments to the code, and a complaints process to be included in the code. The government endorsed and agreed to all those recommendations.[53] Amendments were subsequently made to the Higher Education Support Act 2003 to remove a requirement for universities to have a policy on the undefined concept of ‘free intellectual inquiry’ and instead must have ‘a policy that upholds freedom of speech and academic freedom’.[54]

Footnotes

[1]Attorney-General the Hon Mark Dreyfus KC MP, inquiry referral to the Parliamentary Joint Committee on Human Rights, 29 October 2024.

[2]See, for example, ‘Second synagogue in Sydney, Australia defaced with anti-Semitic graffiti’, Al Jazeera News,11 January 2025; Rachael Knowles and Nicola McCaskill, ‘Australia is facing unprecedented anti-Jewish violence. But what is antisemitism?’, SBS News, 13 December 2024.

[3]Legal and Constitutional Affairs Legislation Committee, Inquiry into the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2), October 2024 (Legal and Constitutional Affairs Inquiry Report).

[4]Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2), explanatory memorandum, p. 1.

[5]Legal and Constitutional Affairs Inquiry Report, chapter 2.

[6]Legal and Constitutional Affairs Inquiry Report, pp. 10–14.

[7]Muslim Votes Matter, Submission 141, p. 1 (Legal and Constitutional Affairs Inquiry Report).

[8]Legal and Constitutional Affairs Inquiry Report, p.13.

[9]Legal and Constitutional Affairs Inquiry Report, pp. 9 and 13. See, Melbourne University Liberal Club, Submission 154, p. 1; Mx Sarah Lucy, Submission 170, p. 1; and Ms Tian Zhang, Submission 173, p. 1 (submissions to Legal and Constitutional Affairs Inquiry).

[10]Legal and Constitutional Affairs Inquiry Report, p. 8.

[11]Union for Progressive Judaism, Submission 105, p. 2; Miss Eden Gringart, Submission 172, p. 2; and Miss Mia Rom, Submission 187, p. 1 (submissions to Legal and Constitutional Affairs Inquiry).

[12]Legal and Constitutional Affairs Inquiry Report, p. 16.

[13]Legal and Constitutional Affairs Inquiry Report, p. 16.

[14]Legal and Constitutional Affairs Inquiry Report, p. 17.

[15]Legal and Constitutional Affairs Inquiry Report, p. 17.

[16]Legal and Constitutional Affairs Inquiry Report, p. 52.

[17]Executive Council of Australian Jewry, Submission 97, and Australasian Union of Jewish Students, Submission 134 (submissions to Legal and Constitutional Affairs Inquiry).

[18]Legal and Constitutional Affairs Inquiry Report, p. 52. See, Ms Adrienne Nieuwenhuis, Acting Chief Commissioner, TEQSA, Committee Hansard, 20 September 2024, p. 72.

[19]Legal and Constitutional Affairs Inquiry Report, p. 55.

[20]Higher Education Support Act 2003, sub-paragraph 2-1(1)(a)(iv).

[21]Schedule 1, section 1.

[22]Section 19-45.

[23]Section 19-115.

[24]Higher Education Support Act 2003, part 5-8.

[25]Standard 2.3.

[26]Standard 2.4.

[27]Standard 6.1(4).

[28]Dr Mary Russell, Chief Executive Officer, TEQSA, Committee Hansard, 12 December 2024, p. 36.

[29]The Ombudsman will not be able to consider complaints regarding any action taken: regarding a person’s employment, the appointment of a person to an office of a university; an action to the extent that it involves academic judgement; or any other kind of action prescribed by legislative instrument. Universities Accord (National Student Ombudsman) Act 2024, subsection 21AD(3).

[30]Racial Discrimination Act 1975, section 9.

[31]Racial Discrimination Act 1975, section 18C. This does not extend to things said or done reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest.

[32]For example, Human Rights Act 2004 (ACT), Charter of Human Rights and Responsibilities Act 2006 (Vic), Human Rights Act 2019 (Qld), and Anti-Discrimination Act 1977(NSW).

[33]Criminal Code, sections 80.2A and 80.2B. Of note, the Criminal Code Amendment (Hate Crimes) Act 2025 amends these provisions to provide that a person may be guilty of an offence where they are reckless as to whether the force or violence will occur. See further, Parliamentary Joint Committee on Human Rights, Report 9 of 2024 (10 October 2024) pp. 93-102.

[34]Section 80.2D.

[35]Sections 80.2H and 80.2HA.

[36]The committee commented on the human rights compatibility of the measures in the bill as introduced into the House of Representatives on 12 September 2024 in its scrutiny Report 9 of 2024(10 October 2024). The committee raised concerns regarding the compatibility of the measure with the rights to freedom of expression and freedom of religion.

[37]Criminal Code, section 80.2H. Subject to a minimum sentence of 12 months imprisonment.

[38]Criminal Code, section 80.2HA. Subject to a minimum sentence of 12 months imprisonment.

[39]Criminal Code, section 80.2BE. Subject to a minimum sentence of 12 months imprisonment.

[40]Australian Universities Accord, Final Report, recommendation 33.

[41]The Hon Jason Clare MP, Minister for Education, Responding to the Australian Universities Accord, Media Release, 15 May 2024.

[42]Australian Human Rights Commission (AHRC), Interim Report on Racism at Australian Universities (December 2024).

[43]AHRC, The National Anti-Racism Framework: A roadmap to eliminating racism in Australia (November 2024).

[44]The Hon Robert French AC, Report of the Independent Review of Freedom of Speech in Australian Higher Education Providers (March 2019) (Freedom of Speech Review) p. 137.

[45]The Hon Robert French AC, Freedom of Speech Review, p. 217.

[46]The Hon Robert French AC, Freedom of Speech Review, p. 219.

[47]The Hon Robert French AC, Freedom of Speech Review, p. 221.

[48]The Hon Robert French AC, Freedom of Speech Review, p. 222.

[49]The Hon Robert French AC, Freedom of Speech Review, pp. 217-223.

[50]The Hon Robert French AC, Freedom of Speech Review, p. 61.

[51]The Hon Robert French AC, Freedom of Speech Review, p. 230.

[52]Professor (Emeritus) Sally Walker, Review of the Adoption of the Model Code on Freedom of Speech and Academic Freedom, 2020.

[53]Australian Government, Review of Adoption of the Model Code on Freedom of Speech and Academic Freedom in Higher Education Australian Government Response (2021).

[54]Higher Education Support Act 2003, section 19-115.